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THE COURT OF APPEALS OF THE STATE OF ALASKA
RICHARD C. BRANDON, )
) Court of Appeals No. A-3721/3722
Appellant, ) Trial Court No. 3AN-87-1868CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1251 - October 2, 1992]
)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, John Reese, Judge.
Appearances: John Murtagh, Anchorage, for
Appellant. Kenneth M. Rosenstein, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, Charles
E. Cole, Attorney General, Juneau, for
Appellee.
Before: Bryner, Chief Judge, Coats, Judge,
and Andrews, Superior Court Judge.*
[Mannheimer, Judge, not participating.]
COATS, Judge.
A jury convicted Richard C. Brandon of two counts of
assault in the first degree, a class A felony, and one count of
kidnapping, an unclassified felony. AS 11.41.200(a)(1), (a)(2);
AS 11.41.300(a)(1)(C). This court reversed the conviction.
Brandon v. State, 778 P.2d 221 (Alaska App. 1989). On retrial,
the jury again convicted Brandon of first-degree assault and
kidnapping. Brandon brings this appeal, raising several issues.
We affirm.
At around 11:45 a.m. on March 7, 1987, Anchorage Police
Officer William Thompson was dispatched to an apartment in
response to a "911" telephone call. Thompson testified that a
man in a bathrobe at that address identified himself as Richard
Brandon and told Thompson Brandon's birth date and Social
Security number. Thompson explained to Brandon that a 911
telephone call had been made from that location and been
disconnected, and Brandon stated that his young son had possibly
been playing with the phone. Thompson testified that a small boy
standing in the doorway appeared to have been crying. Brandon
assured Thompson that nothing was wrong. Thompson saw a woman in
the apartment standing partially behind some drapes; the woman
told Thompson that everything was all right.
At about 6:30 p.m. that same day, J.B. arrived at an
Abused Women's Aid in Crisis (AWAIC) shelter. Intake counselor
Kay White testified that J.B., who had an infant with her and
appeared to be severely battered, requested shelter for the
evening. J.B. told White that she had been beaten "all day" by
her husband, Richard Brandon. J.B. said that she had tried to
call 911 during the beating, but Brandon had pulled the phone
from the wall. J.B. stated that her two children, the infant and
her three-year-old son, had been present during the beating and
that she was only able to leave the apartment when Brandon took
the three-year-old to McDonald's. Concerned that J.B.'s injuries
might be fatal, White told J.B. that J.B. would need to see a
doctor before she could be admitted to the shelter. White drove
J.B. to Humana Hospital, where she was examined by nurses and
doctors and interviewed by the police. Doctor David Claman
described J.B.'s injuries and testified that such a beating
entailed a significant risk of death, and emergency room nurse
Linda Kile testified that she had never seen anyone else with the
same magnitude of injuries as J.B.
Officer Kathy Brewster went to the hospital and
obtained J.B.'s signature consenting to a police entry into her
home to search for and retrieve specifically listed items
evidencing J.B.'s beating. Other police officers went to the
Brandon residence at approximately 11:15 that night. When the
police officers arrived at the residence, Brandon and his son,
R.B., were present. Officer John Daily testified that Brandon
told him that he had been sleeping until 2:00 that afternoon,
that he thought J.B.'s boyfriend must have beaten her up, and
that J.B. had later disappeared while Brandon was away from the
apartment. Brandon was then arrested and taken before a
magistrate. Brandon told Magistrate Roy V. Williams at a bail
hearing in the early hours of March 8 that when "my wife came in
this afternoon she was already beaten" by J.B.'s lover, a G.L.,
who lived about a block away. Sergeant William Gifford testified
that, while the police were searching the apartment for the
evidence that J.B. had been beaten, R.B. picked up a broom handle
and said, "This is what daddy spanked mommy with." Officer
Brewster testified that R.B. also told her that he had seen his
father beat his mother with his father's belt. The grand
jury convened on March 24, 1987. At grand jury J.B. testified
that, although she had told the AWAIC counselor and others that
Brandon had beaten her, she had in fact been beaten by her lover,
G.L. J.B. testified that Brandon and R.B. had left the apartment
around 8:00 or 8:30 on the morning of March 7 and that G.L. had
arrived shortly afterwards. She testified that G.L., who had
been drinking, kicked and beat her with his hands and with
Brandon's belt for several hours, and that it was G.L. who
disabled the telephone when J.B. tried to call 911. She stated
G.L. eventually left the apartment, and Brandon returned at about
11:30 a.m. J.B. testified to the grand jury that Brandon had
wanted to report the assault immediately but that J.B.,
embarrassed about the love affair, asked him not to; when Officer
Thompson arrived in response to the aborted 911 call, Brandon
told Thompson that everything was all right only at J.B.'s
request. J.B. testified that she later went to the AWAIC shelter
to avoid discussing her extramarital affair with Brandon, and
that she told the AWAIC counselor that Brandon had beaten her
because she was ashamed of her love affair and because she was
unsure AWAIC would shelter her unless she implicated her husband.
The prosecutor presented to the grand jury testimony from White
and several other witnesses reporting J.B.'s prior inconsistent
statements that Brandon had beaten her. The grand jury indicted
Brandon.
Brandon's first trial ended in a mistrial. At the
retrial the jury found Brandon guilty; this court reversed the
conviction, holding that, while J.B.'s hearsay statements to
White that Brandon had beaten her were admissible as excited
utterances, J.B.'s statements to others and R.B.'s statements
were inadmissible hearsay. Brandon, 778 P.2d at 225-27.
Following the reversal, the state retried Brandon. At
the retrial R.B. testified that he had seen Brandon "hurt" and
"hit" J.B. in the living room and that was why J.B. had been in
the hospital. However, R.B. was unsure whether he had told the
police that Brandon had beaten J.B. The police officers then
testified to R.B.'s prior inconsistent statements. J.B. did not
testify at the third trial. However, during opening statement
Brandon read the jury J.B.'s grand jury testimony in which she
accused G.L. of being the person who beat her.1 Following the
evidence, the jury convicted Brandon of first-degree assault and
kidnapping. Brandon now appeals from this conviction.
THE SEARCH OF BRANDON'S RESIDENCE
In Brandon v. State, 778 P.2d 221, 223-24 (Alaska App.
1989) this court rejected Brandon's claim that the trial court
erred in failing to suppress evidence which the police derived
from the search of Brandon's residence.
We reject Brandon's attempt to relitigate this issue.
The doctrine of the law of the case prohibits the reconsideration
of issues that this court has adjudicated in a previous appeal in
the same case. Wolff v. Arctic Bowl, Inc., 560 P.2d 758, 763
(1977). We accordingly apply the law of the case doctrine and
conclude that the disposition of this issue is controlled by our
original decision in Brandon v. State.2
BRANDON'S STATEMENT TO THE MAGISTRATE
Brandon next contends that Superior Court Judge John
Reese erred in denying Brandon's motion to suppress the statement
which he made before Magistrate Williams. In the patrol car
after the March 7 arrest, Officer Daily advised Brandon of his
Miranda rights, and Brandon asserted his right to remain silent.
At the initial hearing shortly thereafter, Magistrate Williams
did not fully advise Brandon of his rights as set out in Criminal
Rule 5(c).3 Magistrate Williams told Brandon, "At a bail hearing
I have the officer tell me what kind of a case he has against
you. It may seem one-sided to you but I'm not going to ask you
anything about the facts of the case. The reasons for that is
that because what you say could be used against you later on. . .
. It's not always in your best interest to talk about the case
at this time." After the police officer recounted the facts of
the offense, Brandon provided his address and other booking
information. Magistrate Williams then set bail at $10,000.
Brandon then made the following statement:
Your honor. If I could have a chance to
explain something. I tried to offer to the
officers. But my wife came in this afternoon
she was already beaten. I'm not the one that
beat her. See I took care of her. I gave
her a bath. I put ice packs on her face. I
ran and got her ice water, you know. She has
a boyfriend that lives right there in the
neighborhood. This is not the first time
this has happened and she's accused me of it,
you know. And I tried to give, she gave his
name, and address, and telephone number that
I tried to give to the officers and they
refused to take it from me.
Magistrate Williams then asked, "And what was, what was his
name?" Brandon stated:
His name is [G.L.] I don't have the
telephone number and the address. But my
wife had some charges like this against me
just a few months ago which she changed her
story on and told the truth about this
boyfriend of hers.4 And he just lives about
a block away. And she spends a lot of time,
in fact, she spends about as much time there
as she did and more time than she stayed at
home. Lately I've been the one taking care
of the children.
Brandon moved to suppress this statement as a violation
of his constitutional rights and of Rule 5(c). Judge Reese
denied the motion, finding that the statement was unsolicited and
voluntary. The prosecutor played the tape recording of Brandon's
statement at trial.
Brandon does not assert the constitutional issue on
appeal but argues that the fact that the magistrate did not
inform him of all the information within Criminal Rule 5(c)
mandates suppression of his statement and reversal of his
conviction. The state argues that there was no violation of
Brandon's constitutional rights, that the purpose of Rule 5(c) is
to ensure that a defendant does not make involuntary or coerced
statements, and that Brandon's statement was voluntary and
therefore should not have been suppressed.
We believe this issue is controlled by Padgett v.
State, 590 P.2d 432, 435-36 (Alaska 1979). In Padgett the police
took the defendant before a judge as is required by Criminal Rule
5(a). The judge advised Padgett of his rights under Criminal
Rule 5(c) and appointed an attorney for him. Id. at 436.
However the attorney was not present at the hearing. During the
discussion on bail, "Padgett volunteered an arguably
incriminating statement which was admitted at the trial."
Padgett contended that admission of this statement violated his
right to counsel and right to remain silent under the state and
federal constitutions. The supreme court concluded that the Rule
5 proceeding was not a "critical stage requiring assistance of
counsel." The court stated:
With regard to the fifth amendment
claim, the fact that a defendant at a Rule 5
proceeding is unrepresented by counsel should
not preclude him from speaking on the matter
of bail. If he makes an unsolicited incrimin-
ating statement in the course of his remarks,
it will be admitted if it is voluntary.
(Footnote omitted.)
Padgett is distinguishable from the present case in one
major respect: in Padgett there was no suggestion that the judge
did not comply with Criminal Rule 5(c). However, we believe that
Padgett is controlling in the present situation and allows the
state to admit Brandon's statements if the statements were
unsolicited and voluntary. Judge Reese found that the first part
of Brandon's statement, the part before the magistrate asked the
question, was unsolicited and voluntary. This finding is not
clearly erroneous. There does not appear to be any connection
between the magistrate's failure to inform Brandon of his rights
under Criminal Rule 5(c) and Brandon's volunteered statement.
Officer Daily had advised Brandon of his Miranda rights and
Brandon had asserted his right to remain silent shortly before
the Rule 5 hearing. Furthermore, although it is uncontested that
Magistrate Williams did not comply with Criminal Rule 5(c), the
magistrate did caution Brandon about discussing the facts of the
case. We therefore conclude that Judge Reese did not err in
admitting the first part of Brandon's statement.
However, during Brandon's statement, Magistrate
Williams asked Brandon the name of the person that he claimed
assaulted his wife. Given this question by the magistrate, we
conclude that Judge Reese was clearly erroneous in finding that
the portion of Brandon's statement which followed this question
was unsolicited. We therefore assume, without deciding, that
admission of this portion of Brandon's statement was error.
However, it does not appear that this second part of the
statement added anything of substance to the first part of
Brandon's statement other than the name of the person that
Brandon claimed assaulted his wife. Since Brandon consistently
claimed that this was the name of the person who assaulted his
wife, we conclude that the admission of the second portion of
Brandon's statement was harmless error.
INDICTMENT
Brandon next contends that this court should dismiss
the indictment in this case because the prosecutor advised the
grand jury that the state could present expert psychological
testimony regarding the "battered woman syndrome." Brandon
contends that this offer to present expert testimony amounted to
testimony by the prosecutor, masquerading as advice. Criminal
Rule 12(b) and (e) required the defendant to raise objections to
the indictment before trial. Brandon did not do this. This
court therefore reviews the matter as a matter of plain error,
and the appellant bears a heavy burden to convince this court to
review an objection to an indictment that the appellant waived by
not raising it in a pretrial motion. Betts v. State, 799 P.2d
325, 329 (Alaska App. 1990); Gaona v. State, 630 P.2d 534, 537
(Alaska App. 1981). We conclude that these remarks did not
constitute plain error.
DOUBLE JEOPARDY
Brandon next contends that Judge Reese erred in denying
his motion to dismiss his case on double jeopardy grounds. As we
have previously stated, Brandon was tried three times on these
charges. Superior Court Judge Ralph E. Moody presided over the
first trial. At Brandon's first trial, the prosecutor objected
to Brandon's cross-examination of a witness and remarked, "If the
defendant wants to take the stand, he can take the stand." After
argument the next day, regarding the prosecutor's remark, Judge
Moody ruled, "I find nothing in this as intentional." The
parties then stipulated to a mistrial, and Judge Moody made the
following comments:
But I think it's clear in this case,
that-what the district attorney did, and I
find it inadvertent. I see no action on her
part to indicate that she's out to get this
person, or to do anything underhanded, and
it's just one of those things that occur.
And I don't feel there's any intentional
thing on her part, and it's something that
just unfortunately happens, with people doing
their best intentions, and in view of that,
and in all fairness to the defendant, I think
it will be-[confirming that the parties would
stipulate to a mistrial]-and I think it's a
good solution to it. I feel that I was-my
opinion is, I would have granted a mistrial,
but not on the basis that the state
intentionally did this, but on the basis that
it was something that shouldn't have been
done, but it was, and it was inadvertent,
therefore a mistrial is granted.
Brandon's second trial and conviction followed.
Brandon appealed, and this court reversed. The state elected to
retry Brandon. At a hearing before his third trial, Brandon, now
represented by different counsel, asked Judge Reese to hold that
a new trial was barred by double jeopardy based on prosecutorial
misconduct that occurred in the first trial which resulted in the
mistrial. Judge Reese denied this motion. Judge Reese appears
to have concluded that the best course of action was to rely on
the record as it existed at that time rather than attempt to
conduct an evidentiary hearing, given the passage of time since
the incident which resulted in the mistrial in the first trial.
He adopted Judge Moody's finding that the prosecutor's conduct
had been "inadvertent."
In Pruitt v. State, 829 P.2d 1197 (Alaska App. 1992),
we stated that prosecution will be barred when a mistrial is
declared because of prosecutorial misconduct only if "it is clear
that the prosecutor, motivated by a desire to avoid an acquittal
in a case which is going badly, engages in purposeful misconduct
which forces the court to declare a mistrial[.]" Id. at 1201
quoting Muller v. State, 478 P.2d 822, 827 (Alaska 1971). Alaska
courts have also left open the possibility that a defendant may
be able to prevail on double jeopardy grounds where the
prosecution causes a mistrial through gross negligence. Piesik
v. State, 572 P.2d 94, 97 n. 16 (Alaska 1977); Loveless v. State,
634 P.2d 941, 944 (Alaska App. 1981).
Whichever standard applies, we conclude that Judge
Reese did not abuse his discretion in refusing to grant Brandon's
motion to dismiss on double jeopardy grounds. At the time that
Judge Moody granted Brandon's mistrial motion during Brandon's
first trial, Judge Moody made findings that the prosecutor's
conduct was not intentional and was "something that just
unfortunately happens, with people doing their best." This
finding appears to preclude a finding that the prosecutorial
misconduct rose to a level which would prevent a retrial.
Brandon never asked Judge Moody to expand on this finding or
asked for an evidentiary hearing. He did not contest this issue
until long after the event: after a retrial and successful appeal
and before his third trial. Under these circumstances, Judge
Reese could properly rely on the facts in the record and Judge
Moody's contemporaneous finding. We conclude that Judge Moody's
findings are supported by the record, and we affirm Judge Reese's
decision adopting Judge Moody's findings and denying Brandon's
double jeopardy motion.
CONFRONTATION: J.B.'S STATEMENT TO KAY WHITE
Brandon next contends that Judge Reese erred in
allowing Kay White, the intake counselor at the AWAIC Shelter
where J.B. went after she was beaten, to testify to the
statements which J.B. made which identified Brandon as the person
who had beaten her. This court has previously ruled, in the
original Brandon decision, that these statements were admissible
as excited utterances. Brandon, 778 P.2d at 225-26. Brandon now
argues that admission of these statements violated his
constitutional right to confront the witnesses against him. U.S.
Const. amend. VI; Alaska Const. art. I, 11.
In a proceeding out of the presence of the jury, J.B.
refused to testify whether anyone had assaulted her and whether
she had previously made statements in which she had accused
Brandon of assaulting her. J.B. asserted her constitutional
right not to incriminate herself. J.B. stated that she would
testify if the state offered her use and transactional immunity.
The prosecutor refused to offer any form of immunity. The state
presented Kay White's testimony at trial. The same day, this
court issued its opinion in State v. Echols, 793 P.2d 1066
(Alaska App. 1990), a decision in which this court affirmed a
trial's court's dismissal of charges under Criminal Rule 43. The
trial court in Echols had dismissed the charges in the face of
the state's refusal to grant immunity to a critical defense
witness. In light of the Echols opinion, the state offered J.B.
use immunity. Judge Reese ordered J.B. to testify, and J.B.
agreed to testify at trial if called. However, despite Brandon's
assertions that he intended to call J.B. as a defense witness,
neither Brandon nor the state called the immunized J.B. to
testify.5
We have previously concluded that J. B.'s statements to
Kay White were properly admissible as excited utterances under
Alaska Evidence Rule 803(2). An excited utterance is a "firmly
rooted hearsay exception" and, consequently, admission of out-of-
court statements under this exception does not violate the
confrontation clause, at least under federal law. White v.
Illinois, U.S. , 112 S.Ct. 736, 742-43, 742 n. 8, 116
L.Ed.2d 848 (1992); Bourjaily v. United States, 483 U.S. 171, 181-
84, 107 S.CT. 2775, 2782-83, 97 L.Ed.2d 144 (1987). We have
reached a similar conclusion in two recent cases. Dezarn v.
State, P.2d , Op. No. 1226 at 7-8 (Alaska App., May 29,
1992) (excited utterance); Toney v. State, P.2d , Op.
No. 1223 at 6 n. 2 (Alaska App., May 15, 1992) (conspirator
statements). However in neither case did the appellant argue that
although admission of the statement did not violate the
confrontation clause of the United States Constitution, we should
reach a different result under the confrontation clause of the
Alaska Constitution. Assuming that there are situations where we
would apply the confrontation clause of the Alaska Constitution
more strictly to preclude some hearsay statements which are
admissible under the confrontation clause of the United States
Constitution, we do not believe that the present case presents an
appropriate circumstance to so rule. From the record it appears
that Brandon could have called J.B. to testify had he chosen to
do so. His failure to do so appears to have been a tactical
decision on his part. J.B.'s testimony to Kay White came into
evidence under a well-established hearsay exception. Brandon
contends that J.B.'s statement to Kay White was unreliable,
because J.B. testified at grand jury that she had been beaten by
someone other than Brandon and testified that she had not told
the truth to Kay White. However, Brandon was free to admit this
statement, and any other inconsistent statements which J.B. had
made, under Evidence Rule 806. We accordingly conclude that
Judge Reese did not violate Brandon's confrontation rights by
allowing Kay White to testify to J.B.'s statements to her.
CONFRONTATION: J.B.'S STATEMENTS TO SGT. GIFFORD
Brandon next contends that Judge Reese erred in
allowing Sgt. Gifford to explain why he did not examine the belt
and broom which he found at Brandon's house for fingerprints.
Brandon contends that Gifford's response, which relied on
statements which J.B. made to Gifford, violated his
constitutional right to confront J.B.
At trial, Brandon cross-examined Sgt. Gifford
extensively about his investigation in Brandon's home. Brandon
asked Gifford whether he attempted to take finger prints from the
broom and the belt the police found at the house; Gifford
answered that he had not. Brandon did not allow Gifford to
explain why not. On redirect examination, the prosecutor asked
Gifford to explain why he had not attempted to take finger prints
from the broom and belt. Brandon objected on hearsay and
confrontation grounds. The prosecutor asked the court to rule
that the statement "would be only offered to show why the officer
processed [the evidence] the way he did and failed to take
certain items of evidence." Judge Reese overruled Brandon's
objection, and Gifford testified, "In this situation, [J.B.] had
told me that the assault had occurred in the living room, that it
occurred by her husband." Gifford explained that, because the
police investigation of the house, including finding a belt with
a pattern matching the injury Gifford had seen on J.B.'s back,
confirmed J.B.'s story of the assault, the police had not
searched the broom and belt for fingerprints to determine the
identity of the assailant.
Brandon does not renew his hearsay challenge on appeal,
apparently conceding that the statement was introduced for a
nonhearsay purpose. Instead, Brandon argues that the statement
was irrelevant, that its prejudicial effect on the jury
outweighed any probative value, and that its admission violated
his right to confront J.B.
We conclude that Judge Reese did not err in admitting
Sgt. Gifford's testimony. Brandon had vigorously cross-examined
Sgt. Gifford about the investigation which he did of Brandon's
home. He particularly pointed out that Sgt. Gifford had not
examined the broom and belt for fingerprints. Gifford's reason
for not taking such steps to identify an assailant -- that J.B.
had identified her assailant as Brandon -- was relevant in light
of Brandon's cross examination. Cf. Walker v. State, 674 P.2d
825, 831-32 (Alaska App. 1983). In general, the admission of an
out of court statement for a nonhearsay purpose does not violate
the defendant's constitutional right to confront the witnesses
against him. Betts v. State, 799 P.2d 325, 332 (Alaska App.
1990); Stumpf v. State, 749 P.2d 880, 894 (Alaska App. 1988),
cert. denied, 490 U.S. 1070 (1989).
As we have previously pointed out, J.B.'s initial
statement that Brandon was the one who assaulted her was already
properly admitted as an excited utterance through the testimony
of Kay White. The fact that J.B. had made statements accusing
Brandon was already before the jury. J.B. was available for
Brandon to question if he chose to do so. Under these
circumstances we conclude that Judge Reese did not err in
allowing Sgt. Gifford to explain, in the face of Brandon's attack
on cross-examination, why he had not attempted to have the broom
and belt examined for fingerprints.
CONFRONTATION: PLACEMENT OF R.B. IN THE COURTROOM
Brandon next contends that Judge Reese violated
Brandon's right to confront the witnesses against him by his
placement of R.B. in the courtroom. R.B.'s guardian ad litem
requested that R.B. be allowed to testify from a small chair and
table in the courtroom rather than from the witness stand. Prior
to this request, Judge Reese had heard testimony on a motion by
the state to exclude Brandon's mother, Judy Wagner, from the
courtroom while R.B. testified. In support of that motion the
state presented the testimony of Dr. Clemen Lewis, who testified
that R.B. was "particularly afraid of testifying against his
father, knowing his father will be here in the court." Judge
Reese had a small table and chairs set up in the courtroom from
which the boy would testify. Judge Reese stated, "I have
arranged the boy's chair which is more or less perpendicular to
his father. [Defense counsel] is somewhat in front of [R.B.], .
. . he can probably see his father out of the corner of his eye.
It is not really different from where their positions would be if
he were in the regular witness chair." Brandon disagreed with
this description and had his investigator take photographs which
appear in the record. Brandon argues that the seating
arrangement violated his right to confront R.B.
In Blume v. State, 797 P.2d 664 (Alaska App. 1990) the
trial court excluded the defendants from the courtroom while
their five-year-old daughter testified as a prosecution witness.
The defendants watched the proceedings from behind a one-way
mirror in a room adjacent to the courtroom. In Blume we found
that this arrangement violated the Blume's constitutional right
to confront the witnesses against them. We stated:
[T]he constitution forbids denying the
accused face-to-face confrontation with an
accuser in a criminal trial absent specific
evidence and an express finding that the
probable effect of the defendant's presence
on the witness would significantly impair the
substance of the witness's testimony. A mere
finding of some general, or de minim[i]s
effect will not suffice. Likewise,
generalized, subjective impressions or
assumptions will not substitute for case-
specific evidence. (Footnote omitted.)
Id. at 674. However, Blume and the United States Supreme Court
decisions upon which it relies deal with the situation where a
witness is completely excluded from the courtroom or where the
defendant and witness cannot see each other at all.6 The parties
have not cited us to any helpful cases which discuss the issue of
the witnesses' placement in the courtroom and confrontation.7
The cases which we have found seem to allow the trial judge to
move a witness around in the courtroom as long as the defendant
and witness are angled so that they may see each other. The
limits of this principle do not seem to be clearly
differentiated. For instance, in Stanger v. State, 545 N.E.2d
1105, 1112 (Ind. App. 1989), the child witnesses testified from a
witness chair placed "at a slight angle toward the jury and away
from the accused." The appellate court noted:
The procedure utilized here did not prevent
Stanger from hearing or seeing the child
witnesses. It did not prevent the witnesses
from being heard or seen by the judge or
jury. Neither did it prevent the witnesses
from hearing or seeing Stanger. Stanger's
only objection is that the witnesses were not
facing directly at him.
Id. The court held that no individualized showing of necessity
for the chair placement was necessary because the defendant had
failed to establish any deprivation of confrontation. The court
held that the right to confrontation "does not confer upon the
accused the absolute privilege of compelling a particular seating
arrangement." Id. at 1114.
In the instant case, there was testimony in the record
which supported Judge Reese's exercise of discretion to move R.B.
somewhat in the courtroom. See AS 12.45.046(f).8 Although we
have photographs of the chairs in the courtroom, it is difficult
for us to tell what the relationship would have been between R.B.
and Brandon at the time R.B. testified. Our view of the record
convinces us that Judge Reese's finding that R.B.'s position
relative to his father was "not really different from where their
positions would be if he were in the regular witness chair" was
not clearly erroneous. It also appears from the record that
Judge Reese did not require Brandon's attorney to question R.B.
from a particular part of the courtroom. Had Brandon's counsel
chosen to question R.B. from either the podium or the normal
defense counsel's chair, R.B. would have been required to face
directly toward Brandon to face counsel. We accordingly conclude
that Brandon's right of confrontation was not infringed.
PSYCHOLOGICAL EXAMINATION OF R.B.
Brandon next contends that Judge Reese erred in denying
his pretrial motion to conduct a psychological examination of
R.B. Brandon contended that he needed to conduct a psychological
examination of R.B. to determine whether R.B., who was six years
old at the time of the third trial, could adequately remember the
assault which R.B. claimed to have observed three years earlier.
Brandon also argued that the examination could help determine
whether R.B.'s custody with J.B.'s family over the succeeding
three years had interfered with R.B.'s recall, whether R.B. would
be emotionally and mentally able to testify about the event, and
whether confronting Brandon in front of a jury would affect
R.B.'s testimony. Judge Reese denied the motion noting that
Brandon had not raised any particular factual or psychological
issue to warrant a psychological examination.
The decision whether to order a psychiatric evaluation
of a witness is within the trial court's discretion. Jonas v.
State, 773 P.2d 960, 964 (Alaska App. 1989). Because the trial
court must balance the competing values of the prosecution
witness' privacy and the defendant's right to a fair trial, this
court will not reverse the trial court's decision not to grant an
evaluation unless the defendant makes a strong showing that the
witness' psychiatric condition is material to the case. Moor v.
State, 709 P.2d 498, 508 (Alaska App. 1985).
In Pickens v. State, 675 P.2d 665, 668-69 (Alaska App.
1984), this court held that, to establish that a psychiatric
examination of a witness is necessary and should be compelled,
the defendant must demonstrate that there is little or no
evidence against the defendant to corroborate the witness'
testimony and that there is specific good cause to believe that a
psychological evaluation would show that the witness' veracity
when testifying would be substantially impaired.
In order to be able to require R.B. to undergo a
psychological evaluation, Brandon needed to establish a specific
foundation that such an examination was necessary. In Pickens we
stated:
Defense counsel's speculation that a
psychiatric examination of the victim might
turn something up does not amount to a
showing of necessity justifying a court-
ordered evaluation. We think that, at the
very least, it would have been incumbent upon
Pickens to make a specific showing of good
cause to believe, first, that [the victim's]
ability to perceive events accurately or to
relate those events truthfully was
substantially impaired and, second, that this
impairment was of such a nature that a
psychological evaluation would be likely to
confirm its existence or provide material
information as to its scope.
Id. at 669. Here Brandon merely speculated that R.B.'s age and
the passage of time and other factors would make him an
unreliable witness. He made no showing that a psychological
examination would be likely to provide material information. We
accordingly conclude that Judge Reese did not err in denying
Brandon's motion for a psychological examination of R.B.9
CONFRONTATION: R.B.'S PRIOR INCONSISTENT STATEMENTS
Brandon next contends that the admission of R.B.'s
prior inconsistent statements into evidence violated his right to
confront R.B. Brandon argues that, at the time of trial, R.B.
had forgotten the specifics of any assault he might have
witnessed, that R.B.'s testimony did not render the testimony of
other state witnesses relating R.B.'s prior inconsistent
statements to them admissible, and that R.B.'s lack of memory
deprived Brandon of his constitutional right to confront R.B.
concerning the prior statements. Brandon's arguments have little
merit.
At trial, R.B. testified that he had seen "my dad hurt
[J.B.] at his house when he was three years old and that J.B. had
gone to the hospital as a result. R.B. testified that he
remembered seeing Brandon "put her in a car seat, my brother's
car seat," and "hit her." R.B. did not remember what color the
car seat was or what Brandon had used to hit J.B. R.B. testified
that Brandon was acting "[m]ean" and that no other man came by
the house that day or "hurt mommy" that day. R.B. remembered
that J.B. later left to go to the hospital, that the police took
Brandon to jail that night, and that two police officers took
R.B. and his younger brother in a police car to his aunt's house.
However, he did not remember visiting J.B. in the hospital and
asking her "why daddy had spanked her so hard." R.B. did not
know how the broom, which the state entered into evidence, had
been broken into two parts and did not remember telling the
police that "daddy had broken the broom spanking mommy." Nor did
R.B. recognize the belt entered into evidence or remember helping
the police locate the belt behind a trash can upstairs at the
Brandon home. R.B. did not remember telling a police officer
that he had seen Brandon hit J.B. with the belt or tie her up.
R.B.'s aunt, Dolores Allen, Officers Daily and Brewster, and
Sergeant Gifford then testified to R.B.'s prior inconsistent
statements to them.
Brandon first argues that these prior inconsistent
statements were inadmissible hearsay. Brandon argues that
because R.B. did not remember making the statements to Allen and
the police, he was an "unavailable" declarant under A.R.E.
804(a)(3). Therefore, Brandon argues, because A.R.E. 804
contains no hearsay exception for prior inconsistent statements
of an unavailable declarant, the statements were erroneously
admitted. This argument lacks merit. A.R.E. 801(d)(1)(A) applies
regardless of whether the declarant is available or unavailable.
We conclude that the statements were properly admissible as prior
inconsistent statements under A.R.E.801(d)(1)(A).
Brandon next argues that admitting the prior statements
violated his right to confront R.B. However, because R.B. was
present and available for cross-examination at trial, even a
total loss of memory of the substance or circumstances of his
prior statements would not violate Brandon's constitutional right
to confront the witness. United States v. Owens, 484 U.S. 554,
559-60 (1988). R.B., however, did not claim a total lack of
memory. He testified to his version of the incident. Brandon
was able to cross-examine R.B. on this version.
EXCLUSION OF JUDY WAGNER
Brandon next contends that Judge Reese erroneously
excluded Brandon's mother, Judy Wagner, from the courtroom during
R.B.'s testimony. Brandon argues that this exclusion violated
his constitutional right to a public trial.
R.B.'s guardian ad litem requested that the courtroom
be cleared of all unnecessary people during R.B.'s testimony.
The prosecutor informed Judge Reese that the former Alaska
Statute allowing the trial judge to clear the courtroom had been
repealed but asked Judge Reese to ensure that R.B. not be unduly
intimidated by Wagner's presence in the courtroom. The
prosecutor called Dr. Clemen Lewis, a psychiatrist who had seen
R.B. three times, as a witness in support of the motion. Dr.
Lewis testified in an evidentiary hearing before the court that
R.B. would suffer additional stress and anxiety if he testified
while Brandon's relatives were present. When asked on cross-
examination whether the presence of family members might affect
R.B.'s ability to testify to the truth, Lewis answered that if
R.B. changed his story that he had seen Brandon beating J.B., the
change would be a result of "family pressure." R.B.'s aunt,
Dolores Allen, testified at the hearing that R.B. had told her
that Wagner had stated in his presence that Brandon had not
beaten J.B. and that someone else had. Allen testified that R.B.
had felt confused by what Wagner had said. Allen testified that
J.B. had then told R.B. that Wagner had not been telling the
truth and that J.B. knew who had really beaten her. Judge Reese
then found that R.B. was aware that Wagner "had a version of the
facts that she wanted him to testify to" and that it would cause
R.B., who would already be under stress, additional harm to
testify while Wagner was present in the courtroom. Under AS
12.45.046(f), which allows the trial court to effect "other
procedures it finds appropriate" when the testimony of a witness
under age thirteen may be impaired by normal court procedure,
Judge Reese ordered Wagner, who was then present, to be absent
from the courtroom when R.B. testified the next morning. Brandon
objected to this ruling.
This court has recently held, as a general rule, that
"the broader the closure order becomes, the more compelling the
interest sought to be protected must be. Concomitantly, each
closure, whether limited or complete, whether based on
substantial justification or overriding compelling interest, must
be made sparingly on a case-by-case basis in which the judge
carefully balances the right of public trial against the
interests to be protected by the closure." Renkel v. State, 807
P.2d 1087, 1091-92 (Alaska App. 1991). When partially or totally
closing the courtroom, the trial judge must make specific
findings so that the record supports a legitimate reason for
closure, consider alternatives before ordering closure, and
fashion the closure order to be no broader than necessary. Id.
at 1092.
In both Renkel and the subsequent case of Mitchell v.
State, 818 P.2d 688, 689 (Alaska App. 1991), this court reversed
because the trial courts had totally closed the courtroom to the
public during the testimony of children who were witnesses
without making the findings necessary to justify such an order.10
In this case, however, Judge Reese excluded only Wagner from the
courtroom, and did so after an evidentiary hearing. Judge Reese
preserved the "public nature" of the trial and did make
particularized findings. Judge Reese's order was limited to one
person whom he excluded from the courtroom during the testimony
of one witness. We believe that the evidence which Judge Reese
had before him and the findings which he made justified this
limited exclusion. We accordingly find no error.11
EXCLUSION OF EVIDENCE OF THE AUGUST 6, 1987, ASSAULT
Brandon contends that Judge Reese erred in ruling
inadmissible evidence that J.B. was the victim of an assault at
the time that Brandon was in prison awaiting his second trial.
In the early morning of August 6, 1987, the day of
Brandon's second trial, the police responded to a call from J.B.
and found some evidence that she had apparently been sexually
assaulted, tied up, and beaten; J.B. was taken to the hospital.
At that time, J.B. told the police that she had just been beaten
by G.L., who she claimed had also beaten her much more severely
in March. According to a police report of the incident, one of
the police officers had known of a G.L.
The prosecutor moved to exclude any evidence of this
assault, claiming that it was totally unrelated and would lead to
confusion of the issues. Judge Reese, after reviewing the police
report and photographs, granted the state's motion. Judge Reese
found that, although the two incidents involved the same location
and the same victim, there were so few similarities between the
two assaults that the probative value of the evidence of the
second incident to establish that Brandon did not commit the
first assault was remote. Judge Reese cited A.R.E. 403 and
concluded that the police report and photographs would be likely
to confuse the jury and mislead them.
Brandon argues that this ruling violated his
constitutional right to "a meaningful opportunity to present a
complete defense." Crane v. Kentucky, 476 U.S. 683, 690 (1986).
Brandon argues that it was critical for him to show that J.B. had
been assaulted in August of 1987, when Brandon was in jail, and
had claimed that she had been assaulted by G.L.
Alaska Rule of Evidence 403 gave Judge Reese discretion
to exclude evidence of the August incident if he found that "its
probative value is outweighed by the danger of . . . confusion of
the issues or misleading the jury." In the event that Brandon
wished to call J.B. to testify, he was free to call her to
testify as to the March assault with which he was charged in this
case. He chose not to do that. Had he called J.B., and had she
testified to the March assault, her testimony as to the second
assault might have been relevant. However, without J.B.'s
testimony, we think that the relevance of J.B.'s report of an
assault by another man which Brandon presented to Judge Reese was
highly attenuated.
We accordingly conclude that Judge Reese could properly exclude
this information under A.R.E. 403. Cf. D'Antorio v. State,
P.2d , Op. No. 1236 at 19 (Alaska App., July 24, 1992).
FINAL ARGUMENT
Brandon next contends that Judge Reese erred in denying
his motion for a mistrial which was based on the prosecutor's
remarks during closing argument. This court will reverse the
denial of a mistrial only when the trial court's decision is
clearly erroneous. Pinkerton v. State, 784 P.2d 671, 674 (Alaska
App. 1989). We have reviewed the final arguments of counsel in
light of the objections which Brandon raises on appeal. We note
that Brandon did not make many of these objections in the trial
court. We conclude that Judge Reese did not err in denying
Brandon's motion for a mistrial.
JURY INSTRUCTION
Finally, Brandon contends that Judge Reese should have
instructed the jury on the circumstances under which hands and
feet can be considered "dangerous instruments." Judge Reese
instructed the jury on the statutory definition of "dangerous
instrument" contained in AS 11.81.900(b)(11). Brandon neither
objected to the instruction nor raised this argument at trial.
This court will examine the issue only for plain error. Mossberg
v. State, 624 P.2d 796, 804-05 (Alaska 1981); Wilson v. State,
670 P.2d 1149, 1152-53 (Alaska App. 1983). We do not find plain
error.
The conviction is AFFIRMED.
_______________________________
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1. J.B.'s grand jury testimony was not, however,
introduced as evidence at trial.
2. See also Moreau v. State, 588 P.2d 275, 280
(Alaska 1978) (court will rarely find plain error from failure
to raise search and seizure issue). The Moreau case buttresses
our conclusion that this issue is not an exceptional one
requiring reexamination.
3. Rule 5(c) provides in part that the magistrate:
(3) shall inform the defendant
(i) of his right to retain counsel, and
(ii) of his right to request the
assignment of counsel if he is unable to
obtain counsel, and
(iii) of his right to have a preliminary
examination, and
(4) shall inform the defendant that he
is not required to make a statement and that
any statement may be used against him. The
judge or magistrate shall allow the defendant
reasonable time and opportunity to consult
counsel and shall admit the defendant to bail
as provided by law and by these rules.
4. Judge Reese excluded this sentence from the
evidence because of the prejudicial effect of the reference to
prior similar charges.
5. In State v. Gonzalez, 825 P.2d 920, 936 (Alaska
App. 1992), we held that the prosecution was required to grant
transactional immunity to require a person to give up his right
against self-incrimination under article 1, section 9 of the
Alaska Constitution. Gonzalez was decided well after the trial
of this case. Since J.B. indicated that she was willing to
testify based on the prosecution's offer of use immunity, it
appears that J.B. would have testified if called by either party
and that our decision in Gonzalez has no bearing on the present
case.
6. In Coy v. Iowa, 487 U.S. 1012 (1988), the trial
court allowed the state to place a one-way screen between child
witnesses and the defendant. The screen prevented the two child
witnesses in a child abuse case from seeing the defendant as they
testified at trial. Id. at 1014-1015, 108 S.Ct. 2798, 2799-2800,
101 L.Ed.2d 857, 862-63. The Supreme Court held that this
arrangement violated the defendant's right to confront the
witnesses against him. In Maryland v. Craig, 497 U.S. 836, 110
S.Ct. 3157 (1990), the Supreme Court upheld a state statutory
procedure which allowed a child to testify by one-way closed
circuit television. The Blume Court held that such a procedure
could be constitutional, but only if there was specific evidence
and an express finding "that the probable effect of the
defendant's presence on the witness would significantly impair
the substance of the witnesses' testimony." Blume, 797 P.2d at
674.
7. The state cites State v. Hoyt, 806 P.2d 204, 209-
10 (Utah App. 1991). However, Hoyt is a case where the defendant
did not object to the placement of the witness at trial. The
court in Hoyt notes that the record in the case is deficient and
shows only that "defendant and his counsel were seated at the
table customarily used by the prosecution and vice versa at the
request of the prosecution and absent any objection at trial from
the defendant." Id. at 209. The court concluded that "we find
no constitutional requirement that an accused be able to
establish eye-contact with a witness who is looking straight
ahead." Id. at 210.
8. AS 12.45.046(f) provides as follows:
If the court does not find under (a)(2)
of this section that the testimony by the
child victim or witness under normal court
procedures will result in the child's
inability to effectively communicate, the
court may, after taking into consideration
the factors specified in (b) of this section,
supervise the spatial arrangements of the
courtroom and the location, movement, and
deportment of all persons in attendance so as
to safeguard the child from emotional harm or
stress. In addition to other procedures it
finds appropriate, the court may
(1) allow the child to testify while
sitting on the floor or on an appropriately
sized chair;
(2) schedule the procedure in a room
that provides adequate privacy, freedom from
distractions, informality, and comfort
appropriate to the child's developmental age;
and
(3) order a recess when the energy,
comfort, or attention span of the child
warrants.
9. Brandon argues that because Judge Reese later
relied in part on testimony from a psychologist in deciding to
exclude Brandon's mother from the courtroom during R.B.'s
testimony, Brandon had a right to conduct a psychological
examination of R.B. See Anderson v. State, 749 P.2d 369, 371-72
(Alaska App. 1988). First, Brandon never renewed his request for
a psychological examination during trial. Second, the mere fact
that a psychiatrist testified, out of the presence of the jury,
that R.B. would feel stress when testifying in the presence of
Brandon and other family members did not require that Brandon be
able to conduct a separate psychological examination.
10. In each case, the trial court had relied on former
AS 12.45.048, now repealed, which had mandated such closure to
the public upon prosecution request. Renkel held that former AS
12.45.048 was unconstitutional. Renke, 807 P.2d at 1092-93.
11. Although we find no error, it appears to us that
it may have been possible for the trial court to have
accomplished its goal of insulating R.B. from Wagner by
restricting her to the back of the courtroom. No one at trial
argued for this less restrictive alternative. However, we would
encourage trial courts to consider solutions short of excluding
people from the courtroom if the court finds that a remedy short
of exclusion is appropriate.
