Nell v. State

• Decision Date: 01 April 1982
• Docket Number: No. 5565,5565
• Citation: 642 P.2d 1361
• Parties: Eric William NELL, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Court of Appeals

Page 1361

642 P.2d 1361

Eric William NELL, Appellant, v. STATE of Alaska, Appellee.

No. 5565.

Court of Appeals of Alaska.

April 1, 1982.

Allan Beiswenger, Asst. Public Defender, Kenai, Christine Schleuss, Asst. Public Defender, and Dana Fabe, Public Defender, Anchorage, for appellant.

Elizabeth H. Sheley, Asst. Atty. Gen., Anchorage, Barry Jeffrey Stern, Asst. Atty. Gen., Daniel W. Hickey, Chief Prosecutor, and Wilson L. Condon, Atty. Gen., Juneau, for appellee.

Before BRYNER, C. J., and COATS and SINGLETON, JJ.

OPINION

COATS, Judge.

Eric William Nell was indicted on charges of robbery in the first degree, AS 11.41.500(a)(1), and of theft in the second degree, AS 11.46.130(a)(1). Nell was tried before a jury and was found guilty of robbery, but not guilty of theft. Superior Court Judge Karl Johnstone sentenced Nell to a six-year term of imprisonment with one year suspended. Nell has appealed to this court alleging various errors.

On April 3, 1980, Eric William Nell, age 20, was living with his brother Keith and his sister-in-law Anna in their Anchorage apartment. A few days prior to April 3, Nell was given an ultimatum by his brother. Nell was told to move out in one week; if Nell could find a job, however, he would be permitted to stay until he could save enough money to move into a place of his own. As of April 3, Nell had not found a job.

On the morning of April 3, Keith and Anna went to work, leaving a key to the apartment with Nell. Later that day, the wife of the apartment building's assistant manager noticed that the Nell's mailbox was open and that there was mail scattered about the sidewalk. When the assistant manager went to the Nell's apartment to notify them, he found the door to the apartment open and the key in the lock. Both Keith and Anna Nell were contacted at work and they returned home to the apartment. The apartment had been ransacked and a number of items, including a pistol, were found to be missing. Anna Nell then went out to check the storage sheds outside of the apartment building. ¹ After checking half a dozen sheds, she finally found some of the missing items. About 6:00 that evening, Nell called the apartment, and Keith told him to come home as the apartment had been robbed.

Apparently, Nell did return to the apartment complex, but seeing police cars, he decided not to go to the apartment itself. Instead, he checked the storage shed and found that the goods which he had placed there were gone. He then took a taxi back into town. At first he intended to rob this taxi driver, but he decided that the cab driver was "a nice guy" and changed his mind.

At approximately 8:50 p. m., Nell got in a taxi driven by Margaret Kelley. She drove him to his designated location and when she asked for the fare, Nell, who was sitting in the back seat, placed a gun to the back of her head, pulled the hammer back, and said, "Have you ever had a gun to your head before?" Kelley answered, "Yes," and Nell directed her to get out of the taxi. Nell then drove off in the taxi.

Kelley reported the incident to her dispatcher and the police were notified. Shortly after hearing the report of the incident over his radio, Officer Edwin Apperson spotted Nell driving the taxi. As Nell drove past Apperson, Nell held up his middle finger towards the officer. A high speed chase ensued, and Apperson was finally able to force Nell off of the road.

Nell was transported to the police station where he made a statement to the police. In essence, Nell related the above facts. Nell also stated that prior to talking to his brother on the phone, he drank three quarts of beer and half a pint of vodka.

Nell was indicted on one count of robbery in the first degree for his theft of the taxi, AS 11.41.500(a)(1), and on one count of theft in the second degree for his theft of the goods from his brother's apartment, AS 11.46.130(a)(1). He was tried by a jury before Judge Johnstone in the Superior Court of the State of Alaska, Third Judicial District, Anchorage, and he was found guilty on the robbery charge and not guilty on the theft charge. Nell was subject to a presumptive sentence of six years under AS 12.55.125(c)(1), but based upon a finding of a factor in mitigation of the offense, Judge Johnstone suspended one year of the presumptive six-year term.

As his first point on appeal, Nell argues that the trial judge erred in refusing to sever the robbery and the theft charges for trial. We disagree.

As a general rule, under the Alaska Rules of Criminal Procedure, joinder analysis encompasses two distinct inquiries. First, under Rule 8(a), it must be asked whether the two offenses charged are so related as to make joinder proper. Second, under Rule 14, it must be determined whether, given the propriety of joinder under Rule 8(a), joinder of the offenses for trial would unduly prejudice the defendant.

Thus, as a threshold issue, we must consider Alaska Criminal Rule 8(a) which states:

Joinder of Offenses. Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies, misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.

Applying this rule to the instant case, it is clear that the alleged theft and robbery were closely connected and that they constituted parts of a common scheme or plan. ² Thus, it was entirely appropriate to charge both offenses in the same indictment.

Having determined that it was permissible to join the offenses in a single indictment under Rule 8(a), it must be determined whether it was proper under Rule 14 to join the offenses for trial. In pertinent part, Rule 14 states:

Relief From Prejudicial Joinder. If it appears that a defendant or the state is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants, or provide whatever other relief justice requires.

It is Nell's contention that he was prejudiced by the joinder for trial because even though he wished to take the witness stand to testify on the robbery charge, he had to forego testifying altogether because he did not want to testify on the theft charge. In Cleveland v. State, 538 P.2d 1006 (Alaska 1975), the Alaska Supreme Court confronted this very issue and established a two-pronged test for determining prejudice. There, the court quoted from Baker v. United States, 401 F.2d 958, 976-77 (D.C.Cir.1968), cert. denied, 400 U.S. 965, 91 S.Ct. 367, 27 L.Ed.2d 384 (1970) (footnotes omitted), where it was held,

(N)o need for a severance exists until the defendant makes a convincing showing that he has both important testimony to give concerning one count and strong need to refrain from testifying on the other. In making such a showing, it is essential that the defendant present enough information-regarding the nature of the testimony he wishes to give on one count and his reasons for not wishing to testify on the other-to satisfy the court that the claim of prejudice is genuine and to enable it intelligently to weigh the considerations of "economy and expedition in judicial administration" against the defendant's interest in having a free choice with respect to testifying.

Cleveland v. State, 538 P.2d at 1008. The supreme court then quoted from another federal case, United States ex rel. Tarallo v. LaVallee, 433 F.2d 4, 6 (2d Cir. 1970), cert. denied, 403 U.S. 919, 91 S.Ct. 2235, 29 L.Ed.2d 697 (1971). There, the court had rejected the defendant's claim of prejudice declaring, "(A)ll he presented was the fact that he had to make an 'election,' not that he was confronted with a dilemma fraught with prejudice." Cleveland v. State, 538 P.2d at 1008-09. Similarly, in a later case, Huff v. State, 598 P.2d 928, 933 (Alaska 1979), the supreme court rejected the defendant's contention that "(A)ny situation in which a defendant desires to testify with regard to one count, but not to another, is so prejudicial that severance should be granted."

In its brief, the state concedes that Nell satisfied the first prong of the Cleveland test, namely, that he had important testimony to give in regard to the robbery charge. ³ However, the state also observed, and correctly so, that Nell had failed to establish a strong need to refrain from testifying on the theft charge. Rather, Nell relied only upon a generalized fifth amendment argument. As the above cases indicate, however, such is not sufficient to support a Rule 14 severance motion. Nell's argument that he wished to testify about his alcohol consumption to show diminished capacity to form the required mental state to commit robbery assumes that he could not testify to his diminished capacity on the robbery charge without having to testify on the theft charge. Nell's assumption does not seem to be warranted. Evidence Rule 611(b) reads as follows:

Scope of Cross-Examination. Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.

Given this rule, it is clear that Nell had a strong argument that he could testify on the robbery charge without being cross-examined on the theft charge. Nell's generalized fifth amendment claim, therefore, did not establish that prejudice would occur if Nell testified to his diminished capacity on the robbery charge. We believe that the law requires a more explicit showing of prejudice than Nell made here before a severance is warranted. Accordingly, we find no error in denying the severance.

Nell next argues that the trial judge erred in giving the robbery instruction which he...