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THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Court of Appeals No. A-3236
Appellant. ) Trial Court No. 3AN-S89-2253CR
)
v. ) O P I N I O N
)
KEVIN NELSON GREEN, )
)
Appellee. ) [No. 1131 - May 10, 1991]
______________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Karl S. Johnstone, Judge.
Appearances: Nancy R. Simel, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Douglas B. Baily, Attorney General, Juneau,
for Appellant. James D. Gilmore and Eric A.
Johnson, Gilmore & Feldman, Anchorage, for
Appellee.
Before: Bryner, Chief Judge, Coats, Judge,
and Andrews, Superior Court Judge.*
[Mannheimer, Judge, not participating.]
BRYNER, Chief Judge.
The state appeals Superior Court Judge Karl S.
Johnstone's order dismissing an indictment that charged Kevin
Nelson Green with second-degree murder, first-degree assault, and
criminal nonsupport. We affirm.
On September 6, 1987, rescue workers responded to a
report of a child who had stopped breathing. They found Green's
three-month-old daughter dead. The circumstances were
suspicious, since it appeared that Green's daughter had died
several hours before help was summoned. Green was unable to
explain his daughter's death. He indicated that he had taken a
shower; upon emerging, he noticed that his daughter had stopped
breathing, and he attempted to provide mouth-to-mouth
resuscitation. Green claimed that he then called his wife, who
rushed home from work and telephoned for emergency assistance.
An autopsy performed by Dr. Michael P. Propst revealed
evidence of prior physical abuse unrelated to the death of the
child but failed to establish a precise cause of death. Dr.
Propst diagnosed the cause of death as asphyxia from an unknown
source. While Propst suspected that the asphyxia probably
resulted from abuse, he could not conclusively rule out other
causes, such as sudden infant death syndrome. A military
physician, Dr. Arnold R. Josselson, reviewed the autopsy reports
and agreed with Propst's findings.
The grand jury hearing that led to the current
indictment against Green occurred approximately fifteen months
after the alleged homicide. Propst and Josselson both testified
before the grand jury. To bolster their testimony, the
prosecution also called numerous friends and relatives of Green,
including Green's parents, his brother, and the third-party
custodians who supervised Green during his pretrial release. The
state questioned these witnesses at length concerning any
explanation Green might have offered for his daughter's death or
for the various injuries the child had suffered before the day
she died. Almost without exception, these witnesses testified
that Green had failed to explain anything about his daughter's
death or the child's prior injuries.1
Green subsequently moved to dismiss his indictment,
arguing, among other things, that the evidence as to cause of
death was too inconclusive to support a murder charge and that
the state had relied on inadmissible evidence of his silence to
obtain the indictment. Judge Johnstone granted Green's motion to
dismiss, relying on both the insufficiency of the evidence as a
whole and the impropriety of the testimony relating to Green's
failure to make exculpatory statements.2
The state appeals, challenging the propriety of Judge
Johnstone's ruling. With respect to the use of Green's silence
as evidence of guilt, both parties devote considerable attention
to the issue of whether the disputed evidence was
constitutionally prohibited. See, e.g., Doyle v. Ohio, 426 U.S.
610, 616-20 (1976); Silvernail v. State, 777 P.2d 1169, 1174-75
(Alaska App. 1989). However, we find it unnecessary to decide
the constitutional issue, since the admissibility of the
challenged evidence can be determined as an ordinary evidentiary
matter.
With certain limited exceptions not pertinent here,
only "[e]vidence which would be legally admissible at trial shall
be admissible before the grand jury." Alaska R. Crim. P.
6(r)(1). In this case, the state advances two theories to
support the admissibility of the extensive grand jury testimony
concerning Green's failure to make exculpatory statements.
First, relying on its general obligation to present
exculpatory evidence to the grand jury,3 the state attempts to
characterize the testimony as a bona fide search for potentially
exculpatory statements. The ingenuousness of this argument
verges on the disingenuous. The obvious focus of the state's
protracted questioning of numerous witnesses before the grand
jury was not on what Green had said to his friends and relatives
but rather on what he had not said. In summarizing the evidence
to the grand jury, the prosecution emphasized Green's failure to
make exculpatory statements. The prosecutor who presented the
case to the grand jury also expressly acknowledged to the trial
court that she had relied on the challenged testimony as evidence
of an admission by silence. The nature and extent of inquiry
into Green's silence go far beyond anything that could
conceivably be justified as a bona fide search for potentially
exculpatory statements.
Second, the state attempts to characterize the
challenged testimony as falling within the hearsay exception for
adoptive admissions, or admissions by silence. See Doisher v.
State, 658 P.2d 119, 120-21 (Alaska 1983); Blue v. State, 558
P.2d 636, 645 (Alaska 1977); Watson v. State, 387 P.2d 289, 291
(Alaska 1963). The adoptive admission theory, however, is
plainly inapplicable here.
One of the basic foundational requirements of the
adoptive admissions theory is a specific showing of a statement
or circumstances calling for a reply. Doisher, 658 P.2d at 120.
In other words, before seeking to use the challenged evidence in
this case as an admission by silence, the state had the burden of
showing that Green's failure to make an exculpatory statement
occurred in response to something "to which an innocent man would
in the situation and surrounding circumstances naturally respond.
. . ." Id. at 121.
No such showing was made or even attempted here.
Instead, the disputed testimony appears to have been offered on
the mere assumption that an innocent person should feel morally
bound to make exculpatory statements to friends and relatives at
some point after the unexplained death of a child. Such a broad,
generalized and unsupported assumption as to what an innocent
person should do at some unspecified time during a fifteen-month
period hardly meets the specific evidentiary prerequisites for
admission under the adoptive admissions theory.4
The state hedges on the issue of admissibility by
arguing that the disputed evidence was at worst arguably
inadmissible. According to the state, the admissibility of the
evidence at trial would ultimately have turned on a balancing of
probative value against prejudicial impact. See A.R.E. 403(b).
The state contends that, because no judge presides over grand
jury testimony to make such balancing decisions, the evidence was
properly presented to the grand jury, even if it might have been
inadmissible under A.R.E. 403(b). See, e.g., Coleman v. State,
553 P.2d 40, 48 (Alaska 1976); State v. Parks, 437 P.2d 642, 644-
45 (Alaska 1968).
The state is mistaken. The challenged evidence would
have been arguably admissible only if the state had met its
burden of establishing the foundational prerequisites for
application of the adoptive admissions theory; unless and until
those prerequisites were met, there would be no occasion to
undertake the balancing of probative value against prejudicial
impact under Evidence Rule 403(b). See Doisher, 658 P.2d at 121
n.10.
In short, the state has failed to establish that the
disputed evidence would have been "legally admissible at trial."
Alaska R. Crim. P. 6(r)(1). Even so, the use of this
inadmissible evidence before the grand jury would justify
dismissal of Green's indictment only if the remaining, properly
presented evidence was insufficient to support the return of an
indictment or if the inadmissible evidence appreciably affected
the outcome of the grand jury's deliberations. See Oxereok v.
State, 611 P.2d 913, 916 (Alaska 1980); Metler v. State, 581 P.2d
669, 674 (Alaska 1978); Panther v. State, 780 P.2d 386, 393
(Alaska App. 1989).
In the present case, given the inconclusive evidence as
to the cause of Green's daughter's death, the evidence that was
properly admitted against Green was not strong. Even assuming
that this evidence was sufficient to support Green's indictment,
the state's extraordinary emphasis on Green's failure to make
exculpatory statements unquestionably had a profound effect on
the grand jury's deliberations. In ordering dismissal, Judge
Johnstone expressly recognized both the relative weakness of the
state's evidence and the comparative strength of the prejudice
arising from the inadmissible evidence. Because the record
strongly supports a finding that the inadmissible evidence
appreciably affected the grand jury's deliberations, Judge
Johnstone did not abuse his discretion in ordering dismissal of
Green's indictment.
The order of dismissal is AFFIRMED.
_______________________________
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1. For example, Green's mother testified, in relevant
part, as follows:
Q:Did he [Kevin Green] tell you what he and
Brittany had done throughout the course of
the day?
A:No, I didn't ask him. He didn't tell me.
Q:Did he report to you any kind of accidental
injuries to the baby during the day she died?
A:No, none that I can recall.
Q:And are these statements you just relayed
to us all that your son's ever said about the
last day of your granddaughter's life?
A:Uh-hum, pretty much.
. . . .
Q:Okay. You said he didn't tell you anything
about that [injuries] in the first week after
the baby's death. Has he ever explained to
you how your granddaughter got a cigarette
lighter burn on the bottom of her foot?
A:I've never had any reason to have Kevin
explain that to me.
Q:Well, he's been charged with -
A:Just because you've been charged does not
mean that you're guilty, and I don't like the
way you just said that.
Q:That's true, Mrs. Green, but I'm just
saying that because he's been charged -
you've been assisting in his defense in this
case, right?
A:I don't know what you mean by that? What
do you mean?
Q:Well, hiring him a defense attorney and
making arrangements for that, right?
A:Well, certainly, yeah. Yeah, his dad and I
are covering those expenses.
Q:So, it's not exactly true that there
wouldn't be a reason for you to question your
son about this case?
A:I didn't - no, you're mistaken. You
question people when you doubt them, and you
question people when you think you have a
reason to be suspicion -- suspicious, and I
don't have any reason to be suspicion. I
know Kevin.
Q:Has Kevin ever told you how the baby got a
cigarette lighter burn on her foot?
A:Nope and I've never asked him how.
Q:Has Kevin ever told you how the baby got
three broken ribs?
A:No. As I tell you, Kevin didn't know until
he was told.
Q:Has Kevin ever told you how the baby got
brain injuries or head injuries?
A:I have never heard that Brittany had brain
injury.
. . . .
Q:Did your son ever tell you how your
granddaughter got head injuries?
A:No . . . .
Q:But, Mrs. Green, what I'm asking is has
your son ever told you how your granddaughter
got head injuries?
A:No. My answer remains consistent. I've
never had any reason to question Kevin.
Kevin has never had any reason to feel that
he needed to explain or justify. You don't
have to do that when you're not at fault.
Q:Has he ever told you the story that he
accidently burned the baby's foot with a
cigarette lighter by dropping a lighter on
her foot while holding her?
A:No, he's never told me the story.
Q:Did he tell you that statement?
A:Nope.
Q:So, you're saying then in the fifteen
months since your granddaughter died you have
had no conversations with your son on the
subject of your granddaughter's injuries
except you initially asked him about them and
he said he didn't know anything about that?
Other than that, no other conversations?
2. In relevant part, Judge Johnstone stated:
The feeling I'm left with is that the
prosecutrix, number one, infringed on the
defendant's constitutional right to remain
silent by asking such questions; and that her
motivations and reasons given certainly don't
rise to a level justifying invading the
defendant's constitutional rights. Further,
there's a subtle change in the burden of
proof by such an inquiry, placing the burden
on the defendant to come forward to explain
away his conduct before the grand jury, when
it's the state's burden to establish probable
cause before the grand jury. . . . However,
if some reviewing court were to find that the
presentation to the second grand jury was
adequate, was sufficient, my determination of
dismissing on the grounds of presenting
inadmissible evidence by the prosecutrix is
founded on the theory that the state's case
was very weak, and that it took very little
error to swing the jury, or to inflame the
jury or unfairly prejudice the jury, and the
state's burden of showing harmless error
beyond a reasonable doubt has not been even
close to established.
3. See, e.g., Alaska R. Crim. P. 6(q); Frink v. State, 597
P.2d 154, 164-65 (Alaska 1979).
4. In an effort to bolster its argument on this theory,
the state contends that "[t]here was evidence that if Green was
upset with something he would ordinarily discuss the matter with
his parents." The record, however, fails to support the
conclusion that an exculpatory statement by Green would have been
natural under the circumstances. The portion of the state's
argument cited above is apparently a reference to the following
testimony by Green's brother:
Q:If Kevin [Green] was going to confide in
somebody about some personal matter, who
would you expect that he would talk to?
A:Probably confide in the family.
Q:Who in the family?
A:Well, any of us, either my mom or my dad.
Q:Have you ever heard Kevin talking to either
of your parents about the death of the baby?
A:No, I haven't.
Q:Have you ever heard him talking to either
of your parents about the baby's injuries?
A:No, I haven't.
Nowhere in this passage does Green's brother purport to
say that it would have been natural for Green to discuss his
daughter's death with his parents if he had been innocent. At
most, Green's brother acknowledged hypothetically that, assuming
"Green was going to confide in somebody in some personal matter,"
it would likely have been his parents.
