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THE COURT OF APPEALS OF THE STATE OF ALASKA
ROBERT D. WOOD, )
) Court of Appeals No. A-3537
Appellant, ) Trial Court No. 3AN-S88-7507CR
)
v. ) O P I N I
O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1241 - August 14, 1992]
______________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Joan M. Katz, Judge.
Appearances: Larry Cohn, Anchorage, for
Appellant. Jill De La Hunt, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Charles E. Cole, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, Andrews and
Fabe, Superior Court Judges.* [Coats and
Mannheimer, Judges, not participating.]
BRYNER, Chief Judge.
After a jury trial presided over by Superior Court
Judge Joan M. Katz, Robert D. Wood was convicted of six counts of
sexual abuse of a minor in the second degree. Wood appeals,
contending that Judge Katz erred in restricting his cross-
examination of the alleged victim, in refusing to suppress
certain items of evidence resulting from the execution of a
search warrant that failed to describe the objects to be seized
with adequate particularity, and in failing to declare a mistrial
due to various discovery violations. We reverse.
PROCEDURAL BACKGROUND
Wood's convictions stem from incidents of sexual abuse
-- primarily mutual masturbation -- alleged to have occurred
between June of 1987 and June of 1988. The incidents purportedly
involved Q.C., a boy who was then twelve to thirteen years old.
The alleged sexual abuse of Q.C. came to light in November and
December of 1988 as a result of an investigation by the Alaska
State Troopers into an unrelated incident involving Wood's
solicitation of another minor for purposes of engaging in sexual
acts.1 In the course of that investigation, a neighbor of Wood
identified Q.C. to the troopers as a child who had previously
associated with Wood. When questioned by the troopers, Wood
acknowledged that Q.C. had frequently visited and stayed with
him, but Wood denied any sexual involvement with Q.C.
After receiving this information, Trooper James D.
Farrell interviewed Q.C. on December 16, 1988, to determine if
the boy had been a victim of molestation by Wood. Q.C. initially
denied any molestation. Farrell, however, persisted. Using a
technique he later described as "bluffing," Farrell urged Q.C. to
"go ahead and tell us because we already know and we want to get
your side of the story." In response, Q.C. acknowledged that
Wood had molested him. During the balance of the December 16
interview, and in later interviews on December 19 and 20, Q.C.
described an ongoing pattern of sexual contacts by Wood during
the latter half of 1987 and the first half of 1988. On March 8,
1989, Q.C. testified before a grand jury, which indicted Wood.
After issuance
of the indictment,
Wood's counsel
evidently learned
that Q.C. had,
himself, been
accused of sexually
abusing a minor. On
March 8, 1988 --
during the same
period in which Wood
was allegedly
molesting Q.C. --
Alaska State Trooper
Ellen Kord had
interviewed Q.C.
concerning a
complaint that Q.C.
had had sexual
contact with J.P., a
seven-year-old girl
Q.C. was
babysitting. Q.C.
admitted molesting
J.P. During the
same interview, Kord
asked Q.C. if he had
ever been sexually
abused. Q.C. told
Kord that, when he
was six years old, a
cousin had sexually
penetrated him; Q.C.
also told Kord that
a friend of his
mother had once
attempted to French-
kiss him. Q.C.
expressly denied any
other sexual abuse.
After Kord's March
8, 1988, interview,
the troopers had
referred Q.C.'s case
to juvenile
authorities for
possible delinquency
proceedings. In May
of 1988, Q.C. had
apparently entered
into a "conduct
agreement" --
essentially a form
of deferred
prosecution whereby
the state agreed to
hold delinquency
proceedings in
abeyance for a one-
year period, and
ultimately to forego
formal charges,
provided that Q.C.
remained on good
behavior in the
interim.
After learning about Kord's March 8 interview with
Q.C., Wood requested the trial court to allow him to cross-
examine Q.C. concerning the charge that he had sexually abused
J.P. Among several grounds for this request, Wood expressly
asserted that, when Trooper Farrell interviewed Q.C. in December
of 1988, Q.C. might have been motivated to fabricate his claims
of sexual abuse against Wood. Wood theorized that Q.C. might
have wanted to curry favor with Farrell, fearing that if he
(Q.C.) did not accuse Wood of molesting him, Farrell might view
Q.C. as being uncooperative and might use the lack of cooperation
as a basis for terminating the one-year conduct agreement
relating to J.P., which was still in effect at the time.
Judge Katz denied Wood's request, finding that the
probative value of evidence relating to Q.C.'s involvement in the
J.P. incident would be outweighed by the potential prejudice such
evidence would create. The judge precluded Wood from any inquiry
concerning the conduct agreement resulting from the J.P.
incident.2 Wood challenges this ruling on appeal.
DISCUSSION
A defendant's right to cross-examination in a criminal
case is secured by the confrontation clauses of the United States
and Alaska Constitutions. U.S. Const. amend. VI; Alaska Const.
art. I, 11.
Cross-examination is the principal means
by which the believability of a witness and
the truth of his testimony are tested. Sub
ject always to the broad discretion of a
trial judge to preclude repetitive and unduly
harassing interrogation, the cross-examiner
is not only permitted to delve into the
witness' story to test the witness'
perceptions and memory, but the cross-
examiner has tradi- tionally been allowed to
impeach, i.e., dis-credit, the witness.
Davis v. Alaska, 415 U.S. 308, 316 (1974).
The trial court must be particularly solicitous toward
cross-examination that is intended to reveal bias, prejudice, or
motive to testify falsely. See Evans v. State, 550 P.2d 830,
836-37 (Alaska 1976). See also Hutchings v. State, 518 P.2d 767
(Alaska 1974); R.L.R. v. State, 487 P.2d 27 (Alaska 1971);
Whitton v. State, 479 P.2d 302 (Alaska 1970). "The partiality of
a witness is subject to exploration at trial, and is `always
relevant as discrediting the witness and affecting the weight of
his testimony.' 3A J. Wigmore, Evidence 940 p. 775 (Chadbourn
rev. 1970)." Davis v. Alaska, 415 U.S. at 316.
The opinion of the United States Supreme Court in Davis
v. Alaska embodies perhaps the most forceful delineation of a
defendant's right to cross-examine a prosecution witness to
establish bias or motive. Davis was charged with burglary after
being identified as the perpetrator by Green, a sixteen-year-old
boy who had been adjudicated a delinquent and was on juvenile
probation at the time of Davis' offense. During cross-
examination, Davis sought to inquire into Green's juvenile
record, contending that, because Green was on juvenile probation,
his identification of Davis might have been motivated by the
desire to curry favor with the state. The trial judge precluded
inquiry into the area, relying on an Alaska statute that barred
public disclosure of juvenile records. The Alaska Supreme Court
upheld Davis' conviction. Davis v. State, 499 P.2d 1025 (Alaska
1972).
In reversing the Alaska Supreme Court's decision, the
United States Supreme Court emphasized that "the exposure of a
witness' motivation in testifying is a proper and important
function of the constitutionally protected right of cross-examina
tion." Davis, 415 U.S. at 316-17. The Court found that "the
jurors were entitled to have the benefit of the defense theory
before them so that they could make an informed judgment as to
the weight to place on [the witness'] testimony which provided `a
crucial link in the proof . . . of [the defendant's] act.'" Id.
at 317 (quoting Douglas v. Alabama, 380 U.S. 415, 419 (1965)).
The Court concluded that "[t]he claim of bias which the defense
sought to develop was admissible to afford a basis for an
inference of undue pressure because of Green's vulnerable status
as a probationer." Davis, 415 U.S. at 317-18.
In weighing the state's interest in protecting the
anonymity of juvenile offenders against the defendant's competing
interest in exercising the right to cross-examination, the Davis
court clearly found in favor of the latter:
Serious damage to the strength of the State's
case would have been a real possibility had
petitioner been allowed to pursue [the bias]
inquiry. In this setting we conclude that
the right of confrontation is paramount to
the State's policy of protecting a juvenile
offender.
. . . .
The State's policy interest in
protecting the confidentiality of a juvenile
offender's record cannot require yielding of
so vital a constitutional right as the
effective cross-examination for bias in an
adverse witness.
Davis, 415 U.S. at 319-20.
Federal cases have read Davis to require "that the fact
of adjudication as a delinquent be disclosed along with the fact
of probationary status." Camitsch v. Risley, 705 F.2d 351, 354
(9th Cir. 1983). The rule of Davis has been applied in cases
involving witnesses who are awaiting trial, see, e.g.,
Commonwealth v. Cauto, 535 A.2d 602, 606 (Pa. Super. 1987); on
probation, see, e.g., Davis; and on parole, see, e.g., Patterson
v. McCarthy, 581 F.2d 220 (9th Cir. 1978). Further, Davis has
been applied to witnesses facing deferred prosecution. See,
e.g., People v. Peterson, 633 P.2d 1088, 1091 (Colo. App. 1981),
rev'd on other grounds, 656 P.2d 1301 (Colo. 1983). As the court
concluded in McKinzy v. Wainwright, 719 F.2d 1525, 1529 (11th
Cir. 1983): "The rule of Davis applies if any facts could be
adduced that might suggest to the jury a motive for the juvenile
witness to testify favorably for the state." See also Burr v.
Sullivan, 618 F.2d 583 (9th Cir. 1980).
Although Davis makes it clear that the trial court
"must give due regard to the Sixth Amendment's right of confronta
tion," United States v. Crumley, 565 F.2d 945, 949 (5th Cir.
1978), the right to cross-examine is not absolute. Since
deciding Davis, the Supreme Court has reaffirmed that "trial
judges retain wide latitude insofar as the Confrontation Clause
is concerned to impose reasonable limits on such cross-
examination based on concerns about, among other things,
harassment, prejudice, confusion of the issues, the witness'
safety, or interrogation that is repetitive or only marginally
relevant . . . ." Delaware v. Van Arsdall, 475 U.S. 673, 679
(1986). Nevertheless, the Court has carefully distinguished
between the imposition of "reasonable limits on" inquiry and the
prohibition of "all inquiry into" specific areas of possible
bias. Id. See also Davis v. Alaska, 415 U.S. at 318 ("While
counsel was permitted to ask [the witness] whether he was biased,
counsel was unable to make a record from which to argue why [the
witness] might have been biased . . . .") (emphasis in original).
In the present case, Judge Katz precluded Wood from all
cross-examination intended to establish that Q.C. was subject to
the terms of a "conduct agreement," a type of informal juvenile
probation, when he first reported being sexually abused by Wood
and when he testified against Wood before the grand jury. The
pendency of the conduct agreement and Q.C.'s express admission
that he had engaged in the delinquent behavior upon which that
agreement was based were certainly "facts . . . that might
suggest to the jury a motive for . . . [Q.C.] to testify
favorably for the state." McKinzy v. Wainwright, 719 F.2d at
1529. Had the jury been aware of these facts, Wood's counsel
could have argued that Q.C.'s initial report of abuse to Farrell
was motivated by his desire to be cooperative in order to avert
the risk that the state might seek to terminate his conduct
agreement and initiate delinquency proceedings.
Limiting Wood's ability to advance this theory of bias
seems especially problematic in light of the specific facts of
this case. Q.C. originally told Trooper Kord, in March of 1988,
that, except for one incident involving a cousin and another
involving a former friend of his mother, he had never been
sexually abused. At the outset of the December 16, 1988,
interview with Trooper Farrell, Q.C. denied being abused by Wood.
Q.C. only reported that Wood had molested him after Farrell
refused to accept Q.C.'s denial and "bluffed" by saying that he
already knew what had occurred.
Without evidence of the pending conduct agreement, Wood
was certainly free to argue that the manner in which Farrell
conducted the December 16 interview was unduly suggestive; but
the jury could have no basis for concluding that Q.C. had any
reason to accommodate Farrell by fabricating a claim of abuse.
Had Wood been permitted to establish the existence of the conduct
agreement, the evidence would have allowed him to argue not only
that Farrell suggested what he wanted Q.C. to say, but also that
Q.C. was strongly motivated to say what Farrell evidently wanted
to hear.
Judge Katz' decision to preclude cross-examination on
this issue seems to have been based in part on the conclusion
that Q.C.'s conduct agreement was unrelated to Wood's case and
apparently contained no express requirement of cooperation with
the state. But such considerations are not determinative: "The
test is the witness' expectation or hope of a reward, not the
actuality of a promise by the State." State v. Little, 350 P.2d
756, 760 (Ariz. 1960), quoted in Whitton v. State, 479 P.2d 302,
317 (Alaska 1970). As held in Commonwealth v. Cauto, 535 A.2d at
605:
Even if the prosecutor has made no promises,
either on the present case or on other
pending criminal matters, the witness may
hope for favorable treatment from the
prosecutor if the witness presently testifies
in a way that is helpful to the prosecution.
And if that possibility exists, the jury
should know about it.
The state argues that Q.C.'s conduct agreement was too
"remote" to warrant cross-examination, because the agreement was
evidently meant to remain effective for only a one-year term
beginning in May of 1988; it had thus expired by the time Q.C.
testified at trial in November of 1989. This argument is
unpersuasive.
The United States Supreme Court dealt with a similar
situation in Davis v. Alaska. The Court in Davis described the
position taken by defense counsel at trial as follows:
In the instant case, defense counsel
sought to show the existence of possible bias
and prejudice of [the witness], causing him
to make a faulty initial identification of
petitioner, which in turn could have affected
his later in-court identification of
petitioner.
Davis v. Alaska, 415 U.S. at 317 (footnote omitted). With regard
to defense counsel's position, the Davis court cited with
approval the following passage from 3A J. Wigmore, Evidence
940, p. 776 (Chadbourn rev. 1970):
[A] partiality of mind at some former time
may be used as the basis of an argument to
the same state at the time of testifying;
though the ultimate object is to establish
partiality at the time of testifying.
Davis, 415 U.S. at 317 n.5 (emphasis in original).
Here, even though Q.C.'s conduct agreement had
apparently expired by the time Wood was brought to trial, it is
undisputed that the agreement remained in effect when Farrell
interviewed Wood on December 16, 1988, and also when Q.C.
testified before the grand jury in March of 1989. At trial, Q.C.
may well have felt committed to conform his testimony to the
version of events he had already given Farrell and had repeated
under oath to the grand jury.3
In barring cross-examination concerning the conduct
agreement, Judge Katz concluded that the probative value of this
evidence would be outweighed by its potential for prejudice.
However, the judge did not specify the nature of the prejudice
upon which she based this conclusion. The United States Supreme
Court's ruling in Davis precludes a finding that the relevance of
the proposed cross-examination would be outweighed by the
prejudice stemming from a violation of the state's interest in
preserving the confidentiality of Q.C.'s juvenile record. It
seems more likely that Judge Katz was concerned -- and properly
so -- with the potential for prejudice inherent in informing the
jury that Q.C. had himself engaged in sexually abusive conduct
toward others. Such information would inevitably have created at
least some risk that jurors might view Q.C. as an unsavory person
who was unworthy of the full protection of the law, regardless of
the credibility of his claims.
This potential source of prejudice, however, did not
justify a complete preclusion of inquiry into Q.C.'s conduct
agreement. Here, as an alternative to barring inquiry
altogether, Judge Katz could readily have avoided undue prejudice
by placing "reasonable limits," Delaware v. Van Arsdall, 475 U.S.
at 679, on the scope of cross-examination. For example, Judge
Katz could have allowed Wood to establish the existence of the
conduct agreement and of the general fact that the agreement was
based on Q.C.'s admitted involvement in delinquent behavior
involving conduct amounting to a felony, while restricting
inquiry into the details and specific nature of the delinquency
charge.
Moreover, while restricting cross-examination on the
issue of motive, Judge Katz allowed Wood's counsel to question
Q.C. about Q.C.'s abuse of J.P., in order to establish Q.C.'s
knowledge of the term "molesting."4 Given the court's
willingness to admit evidence of the J.P. incident for this
purpose, the risk of incremental prejudice resulting from Wood's
proposed cross-examination concerning the conduct agreement would
at most have been marginal, and would not have outweighed the
probative value of the evidence.
In the present case, Q.C. was the state's primary
witness against Wood; corroborating evidence was minimal, and the
state's case hinged on Q.C.'s credibility. Under the
circumstances, we are unable to say that the error in precluding
cross-examination on the issue of motive was harmless beyond a
reasonable doubt. See Chapman v. California, 386 U.S. 18 (1967).
Wood's conviction must therefore be REVERSED.5
_______________________________
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1. In connection with the investigation, Wood separately
entered a plea of no contest to a charge of solicitation of
sexual abuse of a minor in the third degree. Wood does not
challenge his conviction for solicitation in this appeal.
2. Judge Katz did allow Wood to impeach Q.C. by establish
ing, in general terms, that Q.C. had been interviewed by Kord on
March 8, 1988, and had denied being sexually abused by anyone
other than a cousin and a former friend of his mother's. In
addition, after Q.C. testified that he did not know what the word
"molesting" meant when Trooper Farrell first interviewed him in
December of 1988, Judge Katz permitted Wood to establish that
Kord had interviewed Q.C. on March 8, 1988, and that, during the
interview, Q.C. had admitted "molesting" the child. The judge
instructed the jury, however, that the sole purpose of this
evidence was to establish Q.C.'s awareness of the word "molest
ing" prior to his interview with Farrell.
3. For its claim of remoteness, the state relies on Coffey
v. State, 585 P.2d 514, 522-24 (Alaska 1978). Coffey was a case
involving an illegal drug sale, in which the defendant sought to
cross-examine the undercover informant about a prior misdemeanor
charge that had been brought against the informant in another
state. The prior charge had already been dismissed when the
alleged offense was committed. There was no evidence indicating
that the dismissal was conditioned on the informant's continued
good conduct. At the time of the alleged transaction, the
informant was seeking to become a regular member of the Alaska
State Troopers. By the time of trial, he had achieved this
status and had completed a one-year probationary period. During
trial, the court allowed defense counsel broad latitude in cross-
examination to establish that, at the time of the alleged
offense, the informant was highly motivated to enhance his
prospects for employment as a trooper by making successful cases
as an undercover informant. The trial court precluded cross-
examination into the previously dismissed conviction, however,
and the Alaska Supreme Court affirmed on appeal. The
circumstances in Coffey are readily distinguishable from those in
the present case. Here, Q.C. was expressly required to remain on
good behavior for the duration of his conduct agreement, which
had not yet expired when he made his initial claims of abuse.
Moreover, Wood's cross-examination of Q.C. at trial revealed no
independent evidence indicating bias or a motive to fabricate the
claim of sexual abuse against Wood.
4. As we have indicated in footnote 2, infra, although the
trial court's ruling allowed the jury to learn that Q.C. had
evidently molested J.P., it did not permit Wood to establish that
Q.C. had eventually entered into a conduct agreement in
connection with the incident, by virtue of which he remained
vulnerable to delinquency proceedings when interviewed by Farrell
on December 16, 1988. In connection with the inquiry into Q.C.'s
abuse of J.P., Judge Katz expressly cautioned the jury that the
evidence was to be considered for the sole purpose of
establishing Q.C.'s understanding of the term "molesting."
Wood's ability to cross-examine Q.C. concerning the J.P. incident
for this limited purpose cannot be deemed to offset the improper
restriction of Wood's right to inquire on the issue of motive:
"[T]he unconstitutional limit of cross examination is not cured
simply by acknowledging that other means of impeachment were
possible and permitted." McKinzy v. Wainwright, 719 F.2d 1525,
1529 (11th Cir. 1983).
5. Our decision renders it unnecessary for us to consider
Wood's remaining claims of error except in passing, to provide
guidance to the parties and the trial court in the event of a
retrial. With regard to Wood's claim that the trial court erred
in denying his motion to suppress for lack of particularity, we
conclude that the trial court did not err in finding portions of
the challenged warrant sufficiently particular, see Namen v.
State, 665 P.2d 557, 562-63 (Alaska App. 1983), and United States
v. Spilotro, 800 F.2d 959 (9th Cir. 1986), or in relying on the
doctrine of severability to allow admission of evidence seized
under those portions, see generally 2 W.R. LaFave, Search and
Seizure 4.6(a), at 234-42 (2d ed. 1987). In any event, the
seized articles admitted at trial were of minimal probative
value; any error in failing to suppress them would appear to have
been harmless. We note, moreover, that, apart from asserting his
claim that the articles were illegally seized, Wood did not
object to their admission. Because some of the disputed articles
would arguably be excludable on relevance grounds, see Page v.
State, 657 P.2d 850 (Alaska App. 1983), our resolution of Wood's
suppression claim may not be determinative of the issue of
admissibility in the event of a retrial.
With regard to Wood's claim that the trial court erred
in failing to declare a mistrial as a result of various discovery
violations by the state, we conclude that the sanctions imposed
against the state at trial were fully adequate and that the court
did not err in refusing to dismiss the case. See Williams v.
State, 629 P.2d 54, 64 (Alaska 1981); Putnam v. State, 629 P.2d
35, 43 (Alaska 1980); Abdulbaqui v. State, 728 P.2d 1211 (Alaska
App. 1986).
