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Lega v. State (3/16/2018) ap-2593

Lega v. State (3/16/2018) ap-2593


              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@  

                             IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                     



                                                                                                      Court of Appeals No. A-11926  


                                                      Appellant,                                     Trial Court No. 3PA-13-283 CR  


                                                                                                                   O  P  I  N  I  O  N  



                                                                                                     No. 2593 - March 16, 2018  



                           Appeal from the Superior Court, Third Judicial District, Palmer,  


                           Eric Smith, Judge.  


                           Appearances:                 Marjorie  A.  Mock,  Anchorage,  under  contract  


                           with the Public Defender Agency, and Quinlan Steiner, Public  


                           Defender,              Anchorage,   for   the   Appellant.                                  Michael   Sean  


                           McLaughlin,  Assistant  Attorney General,  Office  of  Criminal  


                           Appeals, Anchorage, and Craig W. Richards, Attorney General,  


                           Juneau, for the Appellee.  


                           Before:  Mannheimer, Chief Judge, Allard, Judge, and Suddock,  


                           Superior Court Judge.*  



                           Judge MANNHEIMER.  

       *      Sitting    by   assignment   made   pursuant   to   Article   IV,   Section   16   of   the   Alaska  

Constitution and Administrative Rule 24(d).                             

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


                    Benjamin Vaitului Lega was convicted of kidnapping and robbery, based  


on evidence that he and an accomplice, Arthur Gray, kidnapped and stole money from  


two Big Lake residents, Judy Holmes and Michael Gearing.  The kidnapping was ended  


when the police conducted a traffic stop of the vehicle  in which all four people were  




                    In this appeal, Lega argues that his trial judge committed error by allowing  


the prosecutor to introduce various statements that the two victims, Holmes and Gearing,  


made to the police after the officers had ended the kidnapping and freed the victims.  


                    For the reasons explained here, we conclude that some of Holmes's and  


Gearing's prior statements were properly admitted, and that the trial judge's  error  in  


admitting the remainder of the prior statements was harmless.  


          Underlying facts  


                    Late in the evening on February 2, 2013, Judy Holmes  was dozing in a  


chair at her home in Big Lake when she was awakened by her dogs barking.                                                 When  


Holmes opened her eyes, she saw Arthur Gray (Lega's co-defendant) pointing a gun at  


her.  Benjamin Lega was also present in the room.  


                    According to Holmes's testimony, Gray and Lega asked her to give them  


money - $17,000 that they claimed Holmes owed to a woman in Anchorage.  When  


Holmes told Lega and Gray that she had no idea what they were talking about, the men  


began searching Holmes's house for money and valuables.  


                    At  some  point,  Holmes's  boyfriend,  Michael Gearing,  walked  over  to  


Holmes's  house  to  check  on  her.                    (Gearing lived  in  a  separate  cabin  on  Holmes's  


property.)   When Gearing tried to enter the house, he was intercepted by Lega, who  


pointed a gun in Gearing's face.  

                                                              - 2 -                                                         2593

----------------------- Page 3-----------------------


                    While  Gray guarded Holmes, Lega escorted Gearing to his cabin.   Lega  


searched the cabin and found Gearing's wallet and bank cards.  When they left the cabin,  


Lega noticed a Quonset hut that contained marijuana plants.  Lega ordered Gearing to  


cut down all these plants and set them aside.  


                    Lega and Gearing then returned to Holmes's house. Lega and Gray decided  


to force Holmes and Gearing to drive back to Anchorage - to clear  things  up by  


bringing Holmes face to face  with  the  woman who claimed that Holmes owed her  




                    At Lega's and Gray's direction, the valuables from Holmes's house,  plus  


the freshly cut marijuana plants and Gearing's television, were all loaded into Holmes's  


vehicle,  a Ford Explorer.                Lega and Gray then forced Gearing to drive the Explorer  


toward Anchorage, with Holmes riding handcuffed in the rear seat.  


                    Shortly before 2:00 a.m. that morning (February 3, 2013), Officer William  


Rapson observed a Ford Explorer driving on the Parks Highway near Wasilla. The car's  


headlights were flashing erratically, so Officer Rapson conducted a traffic stop of the  


vehicle.   Gearing was in the driver's seat, with Lega in the front passenger seat next to  


him.  Gray and Holmes were in the back seat.  


                    Officer Rapson testified that he could smell a "strong odor of marijuana"  


coming from the vehicle, and he saw a bag in the cargo area that appeared to contain  


marijuana plants.  Rapson also observed what appeared to be a rifle case inside the car.  


                    When  Officer   Rapson  attempted   to   speak  to  Gearing,   Lega  kept  


interrupting, and Lega answered many of the questions that Rapson directed to Gearing.  


It seemed to Officer Rapson that Lega was trying  to  end the contact as quickly as  


possible.  When Rapson asked each occupant for identification, all of them claimed not  


to be carrying identification.  Officer Rapson then asked each passenger for their name,  


so he could check the APSIN database for arrest warrants.  Rapson was able to locate  

                                                              - 3 -                                                          2593

----------------------- Page 4-----------------------


three of the occupants' names in APSIN, but he could not find Lega's name - because  


Lega had given the officer a false name.  


                    At this point, Officer Rapson had Gearing get out of the car, intending to  


question him about the rifle case and the marijuana.   Once Gearing was  outside the  


vehicle, he told Officer Rapson that he and Holmes had been robbed and kidnapped by  


Lega and Gray.  Officer Rapson radioed for backup.  He then patted down Gearing and  


placed him in his patrol car.  


                    By the time Gearing was secured in Rapson's patrol car, backup police and  


troopers had arrived on the scene.  The officers first removed Lega from the vehicle, then  


Gray, and finally Holmes.   When Holmes was removed from the vehicle, the officers  


observed that she was bound with handcuffs.  


                    Holmes was moved to a patrol vehicle, and she was briefly questioned by  


State Trooper Paul Wegrzyn.   Holmes corroborated Gearing's statement that she and  


Gearing had been robbed and kidnapped.   In her conversation with Wegrzyn, Holmes  


furnished the basic details of the robbery and kidnapping.  


                    The officers then drove Holmes and Gearing in separate patrol cars to the  


Mat-Su West trooper post. There, they were separately interviewed by Troopers Michael  


Henry and David Bower.  


                    Meanwhile,  Officer  Rapson  and  Trooper  Wegrzyn  drove  to  Holmes's  


residence to look for evidence of the alleged robbery and kidnapping.  They found that  


the interior of Holmes's house appeared to have been ransacked:  items were strewn  


across the floor, including a gun holster, a broken cell phone, and cards of the type that  


would be carried in a wallet (e.g., business cards).  Outside the home, the officers found  


fresh marijuana leaves lying on the snow.  


                    Based  on  the  circumstances  of  the  traffic  stop,  and  on  Holmes's  and  


Gearing's separate statements, the officers concluded  that Holmes and Gearing were  

                                                              - 4 -                                                          2593

----------------------- Page 5-----------------------


telling the truth about being robbed and kidnapped.   Trooper Henry then drove them  


back to Holmes's house.  On the way, they talked further about what had happened, and  


Trooper Henry recorded this conversation.  


                    When the three arrived at Holmes's house,  Trooper Henry entered the  


house with Holmes and Gearing, and he accompanied them as they walked around the  


crime scene and talked again about the events  of the evening.                                      Henry recorded this  


conversation as well.  


                    These various prior statements made by Holmes and Gearing became an  


issue at trial because of the theory of defense asserted by the attorneys representing Lega  


and his co-defendant Gray.  


                    The  defense  contended  that  all  four  people  involved  -  Lega,  Gray,  


Holmes, and Gearing -  were actually partners in a marijuana growingscheme, and that  


Holmes and Gearing(plotting beforehand) had concocted a story to tell the police in case  


they were ever stopped and questioned - a story about being robbed and kidnapped by  


Lega and Gray.  


                    Because this was the defense theory of the case, the trial judge allowed the  


State to introduce the various statements made by Holmes and Gearing after they were  


stopped by the police - under the theory that these statements were "prior consistent  


statements" as defined in Alaska Evidence Rule 801(d)(1)(B).  The prior statements at  


issue were:  


                     1.  the statement that Holmes made to a police officer at the scene of the  


          traffic stop;  


                    2 & 3.   the  statements that Holmes and Gearing made when they were  


          questioned separately by the police within an hour following the traffic stop; and  

                                                              - 5 -                                                          2593

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

                                                                 4   &   5.    the two recorded conversations that took place after the police                                                                                                                                                                                                                                                    

                                 concluded that Holmes and Gearing were telling the truth about being kidnapped.                                                                                                                                                                                                                                                                                                                     

                                 One of these conversations occurred while Holmes and Gearing were riding in a                                                                                                                                                                                                                                                                                                              

                                 patrol car back to Holmes's residence, where the robbery and kidnapping began.                                                                                                                                                                                                                                                                                                                      

                                 The other conversation took place after Holmes and Gearing arrived at Holmes's                                                                                                                                                                                                                                                                     

                                 residence, when they toured the residence with Trooper Henry while the officers                                                                                                                                                                                                                                                                             

                                 were looking for physical evidence.                                                                                                                                          

                                                                 In   this   appeal,   Lega   contends   that   the   trial judge                                                                                                                                                                                             committed   error   by  

 allowing the State to introduce Holmes's and Gearing's prior statements, and that this                                                                                                                                                                                                                                                                                                                        

 error requires reversal of his conviction.                                                                                                                                                        

                                  The applicable law                                                        

                                                                 Alaska Evidence Rule 801(d)(1)(B) governs the admissibility of a witness's                                                                                                                                                                                                                                      

 out-of-court statements when those prior statements are consistent with the witness's trial                                                                                                                                                                                                                                                                                                                   


                                                                 Generally speaking, Alaska Evidence Rule 801(d)(1)(B) allows a party to                                                                                                                                                                                                                                                                                

 introduce the prior statement of a witness when the other party attacks the witness's trial                                                                                                                                                                                                                                                                                                                   

testimony as being the product of "recent fabrication",                                                                                                                                                                                                                             or the product of "improper                                                                

 influence or motive".                                                                                  But the more precise rule is set forth in this Court's decisions in                                                                                                                                                                                                                                             

                                                                                                                                                                                                                                                                                               1        In those cases, this Court  

Nitz v. State                                                ,  Nusinginya v. State                                                                                 , and                    Thompson v. State                                                                           .                                                                                                           

 interpreted Evidence Rule 801(d)(1)(B) as allowing the admission of a prior consistent  


 statement in two distinct situations:  


                 1              Nitz v. State                                              , 720 P.2d 55 (Alaska App. 1986);                                                                                                                               Nusinginya v.                                                         State , 730 P.2d 172                                                          

 (Alaska App. 1986);                                                                         Thompson v. State                                                                       , 769 P.2d 997 (Alaska App. 1989).                                                                                                                                 

                                                                                                                                                                                                        - 6 -                                                                                                                                                                                                  2593

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

                                               If the witness's prior consistent statement                                                                                                   pre-dates  the alleged motive for                                                                   

 fabrication or the alleged improper influence -                                                                                                                 i.e., if the prior consistent statement was                                                                                 

made before the asserted                                                                   impetus for fabrication arose - then the prior statement is                                                                                                                                              

 admissible as                                substantive  evidence.   See Nitz                                                                       , 720 P.2d at 66.                                        That is, the jury is allowed                                     

to rely on the prior consistent statement, not just for purposes of assessing the credibility                                                                                                                                                                            

 of the witness's trial testimony,                                                                               but   also as independent evidence of the truth of the                                                                                                                        

matters asserted in the prior statement.                                                                                                 

                                               If the witness's prior consistent statement does                                                                                                                     not  pre-date the asserted                                

motive to fabricate or the asserted improper influence, the prior consistent statement can                                                                                                                                                                                                     

nevertheless be admissible if the trial judge concludes that the                                                                                                                                                circumstances  of the prior                                               

 statement reasonably bolster the credibility of the witness's trial testimony - apart from                                                                                                                                                                                              

the mere fact that the prior statement is consistent with the witness's trial testimony.                                                                                                                                                                                                    See  

Nitz, 720 P.2d at 58, 66;                                                              Nusinginya, 730 P.2d at 174;                                                                              Thompson, 769 P.2d at 1001.                                                                                

                                               In  Nitz, for example, the defendant asserted that the victim had fabricated                                                                                                                                              

                                                                                                                                                                                                                                                                                        2     But  

 allegations of sexual abuse so that Nitz would be removed from her family home.                                                                                                                                                                                                             

the evidence showed that the victim had "consistently been reluctant to discuss Nitz's  


 offenses" - that her early accounts of the abuse "included only partial details", and that  


 "considerable efforts had to be  expended over a lengthy period of time before [the  


                                                                                                                                                                                                                                                         3        Given these  

victim] was willing to discuss her experiences more fully and openly."  


 circumstances,  we  concluded  that  the  victim's  prior  statements  had  relevance  that  


 derived, not so much from the fact that the prior statements were consistent with the  


victim's trial testimony,  but rather from the circumstances and manner in which the  


            2          Nitz , 720 P.2d at 68.                                               




                                                                                                                                              - 7 -                                                                                                                                          2593

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


victim made those prior statements.                                                     That is, the victim's repeated reluctance to fully                                                 

 discuss these matters was seemingly inconsistent with the defense assertion                                                                                                      that the   

victim purposely made false allegations in order to rid herself of Nitz.                                                                                       

                               However, if a prior statement is admitted under this second rationale, the                                                                                     

jury can not consider it as substantive evidence.                                                              The witness's prior statement is only                                       


 admissible for purposes of assessing the credibility of the witness's trial testimony.                                                                                                        

                Our analysis of the trial judge's ruling  


                               In Lega's case, the trial judge concluded that Holmes's and Gearing's prior  


 statements did not pre-date their alleged motive to falsify, but that those prior statements  


were  nevertheless  admissible  under  Nitz  to  bolster  the  credibility  of  Holmes's  and  


 Gearing's trial testimony.   The judge therefore allowed the prosecutor to introduce all  


 of the prior statements, and to introduce those statements in their entirety.  


                               The judge's ruling is problematic in two respects.  


                               First, the judge did not specifically address the circumstances of Holmes's  


 and Gearing's prior consistent statements, nor did he explain why those circumstances  


were probative of Holmes's and Gearing's credibility as trial witnesses, apart from the  


mere fact that the prior statements were consistent with their trial testimony.  


                               Second,  the  judge  did  not  evaluate  whether  Holmes's  and  Gearing's  


 statements should be admitted in their entirety, or whether those statements should be  


 abridged or summarized owing to considerations of cumulativeness, waste of time, or  


unfair prejudice.  See Evidence Rule 403.  Here, the judge allowed the prosecutor to play  


        4      Ibid.   



               Nitz , 720 P.2d at 58, 68.  

                                                                                              - 8 -                                                                                        2593

----------------------- Page 9-----------------------

the entire audio recordings of Holmes's and                                                  Gearing's prior statements - recordings                         

that (taken together) were hours long.                                         

                            As this Court noted in                           Thompson,   the "sheer repetition" of a witness's                                 

account presents the risk that the jury's attention may be improperly diverted from its                                                                                      

                                                                                                 6   Moreover, as explained in Nitz, when  

task of evaluating the witness's live testimony.                                                                                                                       

a witness's prior statements are admitted  into evidence, especially at such length and in  


such detail, there is an inherent potential for unfair prejudice because the jury may fall  


prey to "the false impression that repetition adds substance to the [witness's] story" 7 -  


when,  in fact,  repetition of the witness's story  adds nothing of substance unless the  


timing or the other circumstances of the prior statements will assist the jury in evaluating  


the credibility of the witness's in-court testimony.  


                            Thus, when either party proposes to introduce a witness's prior consistent  


statements under Evidence Rule 801(d)(1)(B), it is important for trial judges to engage  


in the analysis we have described here.  That was not done in the present case.  


                           Nevertheless, with regard to the statement that Holmes made at the scene  


of the traffic stop, and with regard to the statements that Holmes and Gearing gave to the  


police when they were separately interviewed shortly after the traffic stop, we conclude  


that the circumstances of these statements provided ample justification for admitting this  


evidence - because the circumstances of these statements obviously supported the  


inference that Holmes and Gearing were telling the truth at trial.  


                            Holmes  and  Gearing  separately  gave  detailed  and  largely  matching  


descriptions of what had happened to them.  In their descriptions, Holmes and Gearing  


provided specific details of the kidnapping - the chronology of events, the words that  


       6      Thompson, 769 P.2d at 1003.



              Nitz , 720 P.2d at 69.

                                                                                     - 9 -                                                                                2593

----------------------- Page 10-----------------------


Lega and Gray spoke during the kidnapping, the specific ways in which Lega and Gray  


used  force against Holmes and Gearing, and the places on the property where these  


assaults occurred.  


                    It was improbable that Holmes and Gearing could have manufactured this  


kind of detail beforehand, and they had no time to manufacture this kind of detail after  


the police ended the kidnapping and took the two of them away for separate interviews.  


Thus, as in Nitz, the relevance of Holmes's and Gearing's prior statements derived, not  


so much from the fact that the prior statements were consistent with their trial testimony,  


but rather from the circumstances of the prior statements.  


                    The situation is more complicated with respect to Holmes's and Gearing's  


later statements - their statements in the patrol car  on  the  way back to Holmes's  


residence, and then their statements at the residence.  


                    As we have explained, the audio recordings of those statements were quite  


long.     This meant that a significant  portion of the jury's time was spent listening to  


Holmes's and Gearing's out-of-court statements - raising concerns under Evidence  


Rule 403.   And to the extent that the judge allowed the prosecutor to play these later  


statements  merely  because  they  were  repetitions  of  what  Holmes  and  Gearing had  


already told the police in their earlier statements,  or repetitions of what Holmes and  


Gearing said in their trial testimony, this would be error under Nitz.  


                    Nevertheless, even if it was improper to admit those later statements, or  


even if those later statements should only have been presented in a much-abridged form,  


any  error  was  harmless.                 As  we  have  explained,  Holmes's  and  Gearing's  earlier  


statements were properly admitted.  Moreover, the State's version of events was directly  


corroborated by the physical evidence in the case (most significantly, the condition of  


Holmes's and Gearing's residences, and the fact that Holmes was bound in handcuffs in  


the car).  This version of events was substantially more plausible than the defense theory  

                                                              -  10 -                                                         2593

----------------------- Page 11-----------------------

of the case.                                             Because of this, we can confidently                                                                                                                                                 say that the admission of the later                                                                                                        


statements did not appreciably affect the jury's verdicts.                                                                                                                                                                                                                

                                                             Accordingly, the judgement of the superior court is AFFIRMED.  


                8              See Love v. State                                                         , 457 P.2d 622,634 (Alaska1969) (holdingthat, for instances of non-                                                                                                                                                                                                              

constitutional error, the test for harmlessness is whether the appellate court "can fairly say                                                                                                                                                                                                                                                                                                

that the error did not appreciably affect the jury's verdict").                                                                                                                                                          

                                                                                                                                                                                           -  11 -                                                                                                                                                                                         2593

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