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MacDonald v. State2/2/2000
MEMORANDUM OPINION AND JUDGMENT
No. 4178 - February 2, 2000]
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Richard D. Savell, Judge.
In the summer of 1997, Matthew D. MacDonald was serving a sentence for a felony. On July 7th, the Alaska Parole Board granted MacDonald a temporary release from custody; he was supposed to return two days later. When MacDonald failed to return, the Parole Board issued a warrant for his arrest.
On September 3rd, the Fairbanks police received a tip that MacDonald could be found at local apartment. Two officers went to the apartment, found MacDonald, and attempted to arrest him, but MacDonald slipped from their grasp and ran away. He was arrested the following day and charged with second-degree escape.
MacDonald was tried by jury and convicted of this crime. He now appeals his conviction. MacDonald challenges one of the evidentiary rulings made during his trial. He also asserts that the trial judge improperly restricted him from presenting evidence favorable to his defense. Finally, MacDonald asserts that his trial was unfair because the trial judge failed to instruct the jury on the lesser offense of fourth-degree escape. As explained here, we find no error in the trial judge's actions, and so we affirm MacDonald's conviction.
The trial judge's failure to declare a mistrial after MacDonald's parole officer referred to MacDonald as a "runner"
MacDonald's parole officer testified for the State at trial. The parole officer described receiving a call from the Fairbanks police; the police asked him to confirm that there was an outstanding parole warrant for MacDonald's arrest. The parole officer then stated:
Parole Officer: I advised ... the [police] dispatcher that [MacDonald had] an outstanding warrant - to confirm it. And I also advised the dispatcher take care because he is a runner.
Based on the parole officer's use of the word "runner", the defense attorney asked for a mistrial. Superior Court Judge Richard D. Savell took this request under advisement. At the same time, the judge directed the prosecutor to ask the parole officer a follow-up question to clarify that the officer had been referring to MacDonald's failure to return to custody on July 9th, not to any other events in MacDonald's past. In addition, Judge Savell offered to give the jury a cautionary instruction on this point, but the defense attorney declined the offer.
The trial proceeded without any further mention of this incident. The case went to the jury without Judge Savell's ever ruling on MacDonald's request for a mistrial.
Now, on appeal, MacDonald asserts that Judge Savell committed error in failing to declare a mistrial. But MacDonald allowed the case to go to the jury without ever demanding a ruling on his pending motion. MacDonald therefore waived this claim of error.
Nor do we find plain error. The jury heard no evidence of MacDonald's past activities; they only heard about MacDonald's failure to return to custody on July 9th. In this context, the word "runner" would appear to be a reasonable characterization of MacDonald's conduct during the events being litigated. This characterization was reinforced when Judge Savell insisted that the prosecutor ask the follow-up question and elicit a clarification of the parole officer's reference to "runner". Finally, MacDonald refused the offer of a cautionary instruction. For all of these reasons, we find no plain error in Judge Savell's failure to declare a mistrial.
The alleged restriction on MacDonald's presentation of evidence
At MacDonald's trial,
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