Williams v. State, 011521 AKCA, A-12826

Docket NºA-12826
Opinion JudgeWOLLENBERG, JUDGE
Party NameJEREL TREMAYNE WILLIAMS, Appellant, v. STATE OF ALASKA, Appellee.
AttorneyMarilyn J. Kamm, Attorney at Law, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.
Judge PanelBefore: Allard, Chief Judge, and Wollenberg and Harbison, Judges.
Case DateJanuary 15, 2021
CourtCourt of Appeals of Alaska

JEREL TREMAYNE WILLIAMS, Appellant,

v.

STATE OF ALASKA, Appellee.

No. A-12826

Court of Appeals of Alaska

January 15, 2021

Appeal from the Superior Court, No. 3AN-14-08109 CR Third Judicial District, Anchorage, Jack W. Smith and Michael Spaan, Judges.

Marilyn J. Kamm, Attorney at Law, Anchorage, under contract with the Office of Public Advocacy, for the Appellant.

Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.

Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges.

OPINION

WOLLENBERG, JUDGE

Following a jury trial, Jerel Tremayne Williams was convicted of second-degree murder and first-degree robbery in connection with the shooting death of Christopher Fulton.

Williams raises six claims on appeal. His first claim requires us to construe Alaska Evidence Rule 505(b) - the rule recognizing a confidential marital communications privilege. Williams argues that the trial court erred in ruling that conversations between him and his wife fell within the crime-fraud exception to this rule and were therefore not privileged. In particular, Williams contends that his request for his wife to buy him a plane ticket so he could flee the state was not made to enable or aid the planning or commission of a crime in which both he and his wife were joint participants, and as a result, his statements were not admissible under the crime-fraud exception to the privilege.

For the reasons explained in this opinion, we conclude that the crime-fraud exception to the confidential martial communications privilege does not require evidence of joint participation on the part of both spouses in an underlying criminal or fraudulent endeavor. The exception applies whenever one spouse makes a communication to enable or aid the planning or commission of a crime or fraud, regardless of the complicity of the other spouse. Because Williams's statements to his wife met this test, we agree with the trial court that they were not protected by the confidential marital communications privilege.

Williams also raises four additional claims of error related to: (1) purported deficiencies in the prosecutor's grand jury presentment; (2) the admissibility of an eyewitness identification; (3) restrictions on Williams's ability to cross-examine a witness about her expectations of favorable treatment in an unrelated criminal prosecution; and (4) the propriety of Williams's sentence. For the reasons explained in this opinion, we reject each of these claims of error.

Finally, Williams notes that his judgment erroneously reflects merger of his two second-degree murder convictions "for sentencing" only. The State concedes error. We conclude that this concession is well-founded.

We therefore remand Williams's case to the superior court with directions to amend the judgment to reflect a single conviction for second-degree murder. In all other respects, we affirm Williams's convictions and sentence.

Background facts and procedural history

In September 2014, Williams and his girlfriend, Samantha Herbert, went to an apartment belonging to Christopher Fulton. Williams had previously purchased heroin from Fulton. According to later testimony from Fulton's girlfriend, Josie Pritchard, Williams and Herbert entered the apartment uninvited, with Williams brandishing a handgun. While Herbert pilfered Fulton's and Pritchard's valuables, Fulton fought Williams for control of the gun. At some point during the struggle, Pritchard heard a "loud bang" and saw Fulton collapse, bleeding from a wound to the head. Fulton died from his injuries shortly thereafter.

Williams and Herbert fled the scene. At the time, Pritchard did not know Williams's name, although she had socialized with Williams and Herbert on a number of prior occasions. A roommate told Pritchard that the name of Herbert's boyfriend was "Derrick Hall," and it was this name that Pritchard conveyed to the police. Based on this information, the police constructed a photo lineup, from which Pritchard selected a suspect whose name was Derrick Hall.

A few days later, after learning from acquaintances that Herbert's boyfriend was not Derrick Hall, Pritchard contacted the police to inform them that she had made a mistake. In the interim, the police had located Derrick Hall in Las Vegas and verified that he was not in Alaska at the time of Fulton's death. Upon viewing a second photo lineup that contained Williams, Pritchard "instantly" recognized Williams as the person who had killed Fulton.

Two days after Fulton's death, Williams called his estranged wife, Laramie Williams (who was living in Georgia), and he asked her to buy him a plane ticket out of Alaska. Williams stated that he had shot someone in the face, and he referred Laramie Williams to news reports of Fulton's death and the resulting police investigation. Unbeknownst to Williams, Laramie Williams allowed her mother to listen to and record this conversation, and her mother later provided the recording to the police.

Williams was indicted and proceeded to trial on charges of first-degree murder, second-degree murder, and first-degree robbery.1 The State pursued two theories of second-degree murder: (1) that Williams knowingly engaged in conduct that resulted in the death of another person under circumstances manifesting an extreme indifference to the value of human life, and (2) that in the course of committing or attempting to commit robbery, Williams caused the death of another person.2

At trial, Williams testified on his own behalf, and he offered an exculpatory account of the shooting. According to Williams, he and Herbert had gone to Fulton's apartment to purchase heroin. After one of Fulton's roommates let Williams and Herbert into the apartment, however, Fulton drew a gun. The two men struggled for control of the weapon, and during the course of the struggle, the gun went off. Williams then fled the apartment without knowing the extent of Fulton's injuries.

The jury ultimately acquitted Williams of first-degree murder but found him guilty of the remaining charges. At sentencing, the court merged the two second-degree murder counts and imposed a composite sentence for the murder and robbery of 75 years' imprisonment with 10 years suspended (65 years to serve).

This appeal followed.

Williams's argument that his statements to his wife were protected by the confidential marital communications privilege

Prior to trial, Williams moved to dismiss his indictment, arguing that his statements to his wife were protected by the confidential marital communications privilege, and that the grand jury therefore should not have considered the recording of Williams's phone call, or the testimony from his wife or her mother.

The trial court denied Williams's motion. The court concluded that Williams had been attempting to persuade his wife to commit the crime of hindering prosecution by assisting him in fleeing apprehension for a felony, and thus the crime-fraud exception to the confidential marital communications privilege authorized admission of his incriminating statements.

Alaska Evidence Rule 505(b)(1) codifies the confidential marital communications privilege. This privilege precludes either spouse from being "examined as to any confidential communications made by one spouse to the other during the marriage, without the consent of the other spouse."3 But the privilege is not absolute. Because it "impede[s] the normal truth-seeking function of court proceedings," the privilege is "strictly construed" and "accepted 'only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.'"[4]

The rule sets out multiple exceptions to the confidential marital communications privilege, including the crime-fraud exception. Under this exception, "There is no privilege [for confidential marital communications] . . . [i]f the communication was made, in whole or in part, to enable or aid anyone to commit or plan to commit a crime or a fraud."5

On appeal, Williams disputes the trial court's finding that he was soliciting his wife to commit the crime of hindering prosecution, and its further conclusion that his statements therefore fell within the crime-fraud exception to the privilege. Williams instead characterizes his actions as a request for his wife's "help in transporting her husband back to the family home." But the record amply supports the trial court's finding that Williams asked his wife to commit a crime. In discussing with his wife his request for a plane ticket, Williams emphasized that he had "shot [someone] in the face" and implied that he was the subject of a criminal investigation. And as Williams admits, his request for a plane ticket did not involve discussion of a particular destination, simply a desire to leave Alaska as soon as possible.6

A person commits the crime of first-degree hindering prosecution by "render[ing] assistance" to a person who has committed a felony with intent to "hinder the apprehension, prosecution, conviction, or punishment of that person."7 Rendering assistance includes "provid[ing] or aid[ing] in providing the other person with money, transportation, ... or other means of avoiding discovery or apprehension."8

Here, Williams asked his estranged wife to purchase a plane ticket for him for the stated reason that he had shot someone in the face, and as a result, had to "get out of here." In other words, he told his wife that he had committed a felony offense, and he solicited her to provide him with money or transportation to flee the...

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