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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
LEE ROY NUNN, JR., )
) Court of Appeals No. A-3814
Appellant, ) Trial Court No. 3AN-89-7769
Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1278 - January 22,
1993]
________________________________)
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Rene Gonzalez,
Judge.
Appearances: Steven Pradell, Birch, Horton,
Bittner, & Cherot, Anchorage, for Appellant.
Kenneth M. Rosenstein, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Charles E. Cole,
Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
Lee Roy Nunn, Jr., was convicted of second-degree
sexual abuse of a minor, AS 11.41.436(a)(3)(B), following a jury
trial in the Anchorage superior court. Nunn appeals his convic
tion; he asserts that the government presented insufficient
evidence to support his conviction, and he also challenges two of
the superior court's evidentiary rulings. We affirm.
In the summer of 1989, Nunn's stepdaughter, J.A.B., was
attending camp. On Wednesday, June 21, one of the camp
counselors noticed that J.A.B. was crying and asked her what was
wrong. J.A.B. told her counselor that her stepfather had
sexually abused her by having intercourse with her. J.A.B. asked
the counselor not to tell anyone else because J.A.B. feared that,
if the authorities were notified, she would be separated from her
stepfather. The camp counselor told J.A.B. that she would have
to report what J.A.B. had told her, but only if it was true.
J.A.B. affirmed that she had been sexually abused. About twenty
minutes later, the counselor took J.A.B. to see the director of
the camp. J.A.B. again confirmed the abuse.
On June 23, 1989, J.A.B. was interviewed by a social
worker from the Division of Family and Youth Services. J.A.B.
told the social worker that she was fearful of losing the love of
her mother and stepfather, and the social worker warned J.A.B.
that, if her account was true, her stepfather would go to jail.
Nevertheless, J.A.B. confirmed that Nunn had had sexual
intercourse with her. J.A.B. also confirmed the sexual abuse to
a physician who examined her at the behest of DFYS; J.A.B. told
the physician that Nunn had often had intercourse with her and
that he had also penetrated her with his finger. The physician
examined J.A.B. and found that she no longer had a hymen.
The matter was referred to the Anchorage Police Depart
ment. On June 27, 1989, Investigator Rodney Bennett interviewed
J.A.B. and her mother. The interview with J.A.B. was videotaped.
Later that same day, and again the following day, Investigator
Bennett interviewed Nunn.
J.A.B.'s mother, Joan Nunn, told Bennett that, when she
was informed of the allegations against her husband, she had
asked J.A.B. if Nunn had touched her inappropriately. J.A.B. had
said yes, but had not gone into details. Mrs. Nunn had then
confronted Nunn. Nunn told her that there was some truth to
J.A.B.'s allegations. Specifically, Nunn told his wife that he
had touched J.A.B.'s breasts and her genitals, and that his
genitals had touched hers when they lay in bed next to each
other. However, Nunn did not admit to any acts of intercourse.
During the last part of Bennett's interview with Mrs. Nunn, she
expressed how much she needed Nunn as a husband and a father, and
how much she wished to keep the family together.
J.A.B. was embarrassed to discuss the details of the
sexual abuse with Bennett. However, she told him that Nunn had
touched her "in areas that he shouldn't [have]", and she said
that this abuse had occurred "every couple of weeks or so" since
she was 12 years old.
Following his interviews with J.A.B. and with Nunn's
wife, Bennett interviewed Nunn. Nunn admitted to being "care
less" and stated that he had done things "[which] would not look
good." Regarding J.A.B.'s assertions that Nunn had touched her
genitals and her breasts, Nunn said he did not want to have to
"qualify," "correct" or "refute" what his daughter had said.
Nunn twice admitted that what J.A.B. had said was "not without
merit". Nunn then said that he did not know what he had done.
He also stated that he did not want to admit J.A.B.'s allegations
because then he would have to go "head to head" with her.
Nunn stated that J.A.B. had been having difficulty in
school, and that at bedtime Nunn would talk to J.A.B. to comfort
her. Nunn told Bennett that the "degree to which [he and J.A.B.]
had been involved in some of these discussions had gone beyond
what was proper." Nunn admitted having touched J.A.B., "not
initially intentionally -- but [I] did -- but -- [I] admittedly
did." Nunn then stated:
I allowed that sort of thing to continue too
far. And -- when you start that sort of
thing -- and you have a defect, and I guess I
do -- it's, it was -- I didn't draw the line.
I don't want to say all that went into going
as far as we did. It was sporadic,
spontaneous when it happened, long times
apart. Accidental. I'm not without fault.
I allowed it to happen. I was old enough to
know what was happening. [J.A.B.] wasn't. I
would say something more there, but I don't
want to say anything about my daughter. But
I allowed it to go too far. ... I have the
greatest regrets. ... [W]hat happened was
... an evolutionary thing that went beyond
accidental, it went uh -- I'm talking too
much, I'm sure.
Nunn then told Bennett that his conduct had stemmed
from the fact that he and J.A.B. were close, and that "it rose
out of my not controlling it." Nunn said that he was friendly,
not forceful or pushy, and that J.A.B. never objected. He said
that he backed away if he felt he was going too far. Nunn then
admitted that he and J.A.B. "got into a situation which I think
went beyond the bounds of acceptable behavior. And I know that."
When asked to describe his side of story, Nunn said:
I'll tell you, frankly, I ... wanted to ...
come out and tell my wife that -- that --
[J.A.B.] and I have become too close. And I
was on the verge of doing that, I don't know
how many times. And I've said that these
girls are getting too old to run around here
like that when they're in skimpy things and
maybe sending signals that you know -- that
had bothered me or whatever, uh -- they were
growing up, I was noticing -- uh -- I thought
others would, they needed to be aware of that
-- and maybe that by my trying to be warm to
[J.A.B.] and soliciting her warmth ... in
return, that it was having an effect on me
that went beyond what a father should admit
to. I mean, I've read books where people
have gone to confession ... because they had
feelings like that, that were aroused in
them, that were embarrassing, because their
whole life they'd been taught that they
shouldn't have that. And, you know, I was
right there -- and I didn't have the guts to
turn it off myself, but I was that close to -
- trying to go to my wife and say that it's
gone too far. And I knew that if, if she
were aware of it, as embarrassing as it might
be, that her being involved would sort it
out. I mean, that's sort of the sense of
relief that we have now.
Based upon this investigation, the Anchorage District
Attorney's Office presented the case to the grand jury. On
December 22, 1989, just before the case was presented,
Investigator Bennett and an assistant district attorney
interviewed J.A.B.; J.A.B. repeated her allegations of sexual
abuse and, using dolls, demonstrated what had happened to her.
Investigator Bennett also sat with J.A.B. and Mrs. Nunn while all
three were waiting to testify at the grand jury. Neither J.A.B.
nor her mother said anything to Bennett indicating that their
prior statements had not been true.
However, when J.A.B. testified at the grand jury, she
recanted her allegations of sexual abuse. She testified that
Nunn had never had intercourse with her, and she asserted that
Nunn had touched her breasts only twice, both times accidentally.
J.A.B. told the grand jury that she had invented her story of
sexual abuse in order to retaliate against Nunn for an incident
in which he had disciplined her. Joan Nunn supported her
daughter's recantation; she testified that, in early November
(approximately seven weeks before the grand jury proceeding),
J.A.B. had admitted to her that the allegations of sexual abuse
were false.
Nevertheless, after the grand jury heard the testimony
of the camp counselor, the examining physician, the social
worker, Investigator Bennett, and several other witnesses who had
knowledge of the case, the grand jury indicted Nunn both for
first-degree sexual abuse of a minor (sexual penetration),
AS 11.41.434(a)(2), and for second-degree sexual abuse of a minor
(sexual contact), AS 11.41.436(a)(3).
The Playing of J.A.B.'s Videotaped Police Interview
At Nunn's trial, J.A.B. again testified that her
allegations against Nunn were false. As she had at grand jury,
J.A.B. testified that Nunn had never had intercourse with her and
had touched her breasts only accidentally; she reiterated that
she had invented her story of sexual abuse because she was angry
with Nunn. J.A.B. asserted that she was now telling the truth,
both because she was afraid of getting in trouble and also
because she wanted Nunn to move back in with her and her mother.
The prosecuting attorney asked J.A.B. if she had still
been angry with Nunn when, long after her initial report, she was
interviewed by Investigator Bennett. J.A.B. admitted that she
had no longer been angry at that time. The prosecutor then asked
J.A.B. why she had lied to Bennett about the sexual abuse if she
had no longer been angry; J.A.B. could give no reason. The
prosecutor pressed J.A.B. about specific statements she had made
during her interview with Bennett: her statements that Nunn had
touched her breasts, that Nunn had touched her genitals and
breasts with his mouth, and that Nunn had touched her genitals
with both his hand and his penis. J.A.B. admitted making these
statements, but she continued to assert that they were all false.
She testified that Bennett had relentlessly and repeatedly
questioned her about the sexual abuse; to make him stop asking
those questions, she told Bennett what she thought he wanted to
hear.
Following J.A.B.'s testimony, the prosecutor asked
permission to play the videotape of J.A.B.'s interview with
Bennett on June 27, 1989. The prosecutor argued that the tape
was admissible because it contained prior inconsistent statements
of J.A.B.. See Alaska Evidence Rule 801(d)(1)(A). Nunn's
attorney objected, arguing that the tape was inadmissible because
J.A.B. had already been confronted with the prior inconsistent
statements and had admitted making them. The prosecutor
responded by arguing that the jury should see the videotape
because the tape not only captured J.A.B.'s words but also
revealed her demeanor when she made her allegations of sexual
abuse. The trial court ruled that the videotape could be played.
Nunn challenges this ruling on appeal. He relies on
Patterson v. Cushman, 394 P.2d 657, 661 (Alaska 1964), for the
proposition that, once a witness admits making a prior
inconsistent statement, the cross-examining party is not entitled
to introduce extrinsic evidence (for instance, a written copy or
a tape) of that prior statement. In Patterson, a witness had
been confronted with a prior written statement that contradicted
his testimony at trial; the witness admitted making the
statement. When the cross-examining attorney asked to have a
copy of the witness's written statement admitted as an exhibit,
the trial judge refused. On appeal, the supreme court upheld the
trial judge's action:
[The witness] admitted making the statements
contained in the writing ... . That ended
the inquiry. The material portions of the
statement had been read to the jury, leaving
no need for further proof on the subject.
The written statement would not have
contradicted [the witness] any more than his
admission had already done.
Patterson, 394 P.2d at 661.
However, in Bentley v. State, 397 P.2d 976 (Alaska
1965), the supreme court reached the opposite conclusion, ruling
that it had been error for a trial judge to exclude extrinsic
evidence of a witness's prior inconsistent statement. In
Bentley, as in Patterson, the witness admitted making the prior
inconsistent statement. However, the court viewed Patterson as
distinguishable because, in Bentley, (1) the crucial issue at
trial was whether the jury should credit the witness's present
testimony or should instead credit her prior inconsistent state
ment, and (2) the extrinsic evidence offered by Bentley (an
audiotape) demonstrated the complete context of the witness's
prior statement. Bentley, 397 P.2d at 978. For these reasons,
the court concluded, there was a reasonable possibility that the
jury would view the facts differently if they heard, not simply
the witness's unelaborated concession that she had previously
made inconsistent statements, but the tape of the conversation in
which she had made those statements. Id. at 979.
In Clifton v. State, 758 P.2d 1279, 1283 (Alaska App.
1988), this court construed the Bentley/Patterson couplet to
signify that a trial court has discretion to admit extrinsic
evidence of a witness's prior inconsistent statement. That
discretion was not abused here.
In Nunn's case, as in Bentley, one of the critical
issues facing the jury was whether to credit J.A.B.'s trial
testimony or her conflicting prior statements. Had J.A.B. been
lying when she accused Nunn of sexually abusing her, or was
J.A.B. lying when she testified that no sexual abuse had
occurred? Here, a videotape preserved J.A.B.'s demeanor as she
told Investigator Bennett about the sexual abuse in an interview
that was held only a few days after J.A.B. first reported the
abuse to her camp counselor. The trial judge could reasonably
conclude that, because the videotape displayed J.A.B.'s demeanor,
the tape had substantial probative value beyond the mere words
recorded on it. The trial court therefore did not abuse its
discretion when it decided to allow the playing of the videotape.
Nunn argues in the alternative that, even if the
videotape was potentially admissible as extrinsic evidence of
J.A.B.'s prior inconsistent statements, the State nevertheless
failed to establish a proper foundation for the tape's admission
under Alaska Evidence Rule 613(b). That rule states:
Before extrinsic evidence of a prior
contradictory statement ... may be admitted,
the examiner shall lay a foundation for [the
witness's] impeachment by affording the wit
ness the opportunity, while testifying, to
explain or deny any prior statement ... .
Nunn argues that the prosecutor failed to ask J.A.B. about all
the inconsistent statements contained in the videotaped
interview.
We believe that Nunn's interpretation of Rule 613(b) is
unreasonably narrow. In answer to the prosecutor's questions,
J.A.B. testified that she had lied to Investigator Bennett; she
stated that Nunn had done absolutely nothing wrong. At this
point, the prosecutor asked J.A.B. about specific statements she
had made to Bennett during the interview: her statement that
Nunn had touched her genitals, both with his hand and with his
penis, her statement that Nunn had touched her breasts and her
genitals with his mouth, and her statement that Nunn had
penetrated her genitals with both his finger and his penis. In
each case, J.A.B. recanted these statements, testifying that she
had lied when she said these things to Bennett.
Under these circumstances, the trial judge could
reasonably conclude that J.A.B. would continue to categorically
deny all allegations of sexual abuse and would continue to disown
any and all statements she had previously made to the contrary.
The trial judge could therefore conclude that J.A.B. had been
given sufficient opportunity to explain or deny the statements
she made during her interview with Bennett, and that it was
pointless to require the prosecutor to continue asking J.A.B.
about every other statement she had made during that interview.
See Bodine v. State, 737 P.2d 1072, 1074 (Alaska App. 1987). We
uphold the trial court's ruling that the State established a
proper foundation under Rule 613(b) for introducing the
videotape.
Sufficiency of the Evidence
Nunn argues that the State failed to present sufficient
evidence to support his conviction. He relies on Brower v.
State, 728 P.2d 645 (Alaska App. 1986), in which this court held
that a criminal conviction cannot rest on the uncorroborated
prior accusations of a victim/witness who recants those
accusations at trial.
While Brower does establish the requirement of corrobo
rating evidence, this corroborating evidence need not take any
specific form, and it need not independently establish the crime.
Sheldon v. State, 796 P.2d 831, 839 (Alaska App. 1990); Thompson
v. State, 769 P.2d 997, 1000 (Alaska App. 1989); Bodine, 737 P.2d
at 1075. "The rule governing corroboration is a flexible one,
... grounded in common sense: corroborating evidence is
sufficient [when] it induces a rational belief in the truthful
ness of a witness' testimony." Bodine, 737 P.2d at 1075.
In Nunn's case, as in Bodine, there was sufficient
corroborating evidence to sustain the conviction. Nunn's state
ments to Investigator Bennett establish good reason to believe
that he was sexually attracted to J.A.B. and that his actions had
exceeded the boundaries of normal parental affection. Mrs. Nunn
initially supported her daughter's accusations; in June 1989, she
told Bennett that Nunn had admitted to her that he had engaged in
sexual misconduct with J.A.B.. Further, the jury was able to
view the videotape of J.A.B.'s interview with Investigator
Bennett, and the State presented expert testimony regarding why a
child would be motivated to retract allegations of sexual
misconduct against a parent. See Sheldon, 796 P.2d at 839. This
evidence was sufficient to corroborate J.A.B.'s pre-trial allega
tions of sexual abuse.
Nunn next argues that there was insufficient evidence
to establish that he touched J.A.B.'s breasts through her
clothing as opposed to touching them directly. (As will be
discussed in more detail below, one count of the indictment
charged Nunn with touching J.A.B.'s breasts directly, underneath
her clothing, while another count charged Nunn with touching
J.A.B.'s breasts through her clothing. Nunn was convicted of
this latter count.)
Nunn is correct that J.A.B., in her pre-trial
statements, never explicitly identified distinct incidents in
which Nunn touched her breasts through her clothing as opposed to
touching her breasts directly. However, J.A.B. told Investigator
Bennett that Nunn had touched her on areas of her body where he
should not have touched her. Seeking to identify these areas,
Bennett asked J.A.B. the following questions:
BENNETT: Would it have been above the
shoulders that he would touch you?
. . .
J.A.B.: No.
BENNETT: Okay, would it have been below
the shoulders?
J.A.B.: Yes.
BENNETT: Would it have been above or
below the waist?
J.A.B.: Above.
BENNETT: Above the waist? Okay, so it
would have been between your shoulders and
your waist that he touched you?
J.A.B.: Uh-huh.
BENNETT: Is that yes? Okay. Would it
have been on your back or on your front side?
J.A.B.: Front.
BENNETT: Would it have been on the
outside of your pajamas or underneath?
J.A.B.: Outside.
Viewing this evidence in the light most favorable to upholding
the jury's verdict, Napayonak v. State, 793 P.2d 1059, 1061
(Alaska App. 1990), the evidence was sufficient to allow the jury
to conclude that Nunn had touched J.A.B.'s breasts through her
clothes.
Nunn also argues that the State failed to prove all the
elements of "sexual contact" because the State failed to prove
that Nunn touched J.A.B.'s breasts with the specific intent to
achieve sexual arousal or gratification. Nunn relies on Flink v.
State, 683 P.2d 725 (Alaska App. 1984) (per curiam). However,
Flink was based on a construction of the then-existing definition
of "sexual contact" in AS 11.81.900(b). In response to Flink,
the legislature amended the definition of "sexual contact" so
that it no longer requires proof of a specific sexual intent.
Van Meter v. State, 743 P.2d 385, 389-391 (Alaska App. 1987).
Finally, Nunn argues that his conviction must be
reversed because, at trial, J.A.B. never explicitly pointed to
Nunn and identified him as the man who had sexually abused her.
While this is the normal method of identifying the defendant as
the perpetrator of the crime, it is not the only way. An in-
court identification is not necessary when the evidence supports
the inference that the defendant was in fact the person who
committed the crime. State v. Hutchinson, 661 P.2d 1315, 1322
(N.M. 1983).
J.A.B. identified her abuser as "[her] stepdad, Lee".
Joan Nunn testified that she was Nunn's wife and that J.A.B. was
her daughter from a previous marriage. Mrs. Nunn told Bennett
(when she was interviewed in June 1989) that Nunn had admitted
touching J.A.B.'s breasts. Moreover, Nunn himself admitted to
Bennett that J.A.B.'s allegations were partially true. Viewing
this evidence, and the inferences to be drawn from it, in the
light most favorable to upholding the jury's verdict, there was
sufficient evidence to establish that Nunn was the person who had
committed the crime.
In conclusion, the evidence presented at trial was
sufficient to sustain Nunn's conviction.
Failure of the Jury Instructions to Require the
Jury to Unanimously Agree on a Discrete Incident
The jury convicted Nunn of second-degree sexual abuse
of a minor as charged in Count III of the indictment. In Count
III, Nunn was charged with touching J.A.B.'s breasts through her
clothing during the period August 1988 through June 1989.
On appeal, Nunn argues that the jury's verdict is
flawed because the jury was never explicitly told that they had
to unanimously agree on a specific incident of touching. Nunn is
correct that, when a defendant is charged with engaging in many
acts of sexual abuse over a period of time, Alaska law requires
the jury to agree on a specific incident of abuse. Covington v.
State, 703 P.2d 436, 440 (Alaska App. 1985), as modified on
rehearing, 711 P.2d 1183 (Alaska App. 1985). However, Nunn did
not object to the jury instructions on this ground. We therefore
review this issue only for plain error. Covington (on
rehearing), 711 P.2d at 1184.
Nunn was indicted on four counts of second-degree
sexual abuse. Each count charged a very specific form of sexual
contact: "touching J.A.B.'s breasts underneath her clothing with
his hand", "touching J.A.B.'s breasts over her clothing with his
hand", "touching J.A.B.'s breasts with his mouth", and "touching
J.A.B.'s [genitals] over her clothing with his hand". The jury
was instructed to determine Nunn's guilt or innocence of the
specific conduct charged in each count.1
Because of the manner in which the different counts
were framed, Nunn's case does not present the same legal
difficulty as Covington. In Covington, the defendant was charged
with several counts of unlawful sexual penetration. Each count
covered a different, non-overlapping period of time, and each
count was supported by evidence disclosing dozens of acts that
fit the definition of the crime charged. Covington, 703 P.2d at
438. "In such a case, the twelve jurors may agree that the
defendant committed at least one of the incidents, but be in
general disagreement as to which incident that was." Covington
(on rehearing), 711 P.2d at 1185.
In Nunn's case, however, each count of the indictment
covered the same period of time (August 1988 to June 1989) and
was distinguished from the others by a precise description of the
type of sexual contact alleged. Moreover, the jury convicted
Nunn of Count III and yet were unable to reach a verdict on the
other counts. (The court declared a mistrial as to those counts,
and they were eventually dismissed.) It appears, therefore, that
the jury gave separate consideration to each specific form of
sexual contact alleged against Nunn, and that, after weighing the
evidence pertaining to each form of sexual contact, the jury
found this evidence to have varying degrees of convincing force.
To the extent that Nunn may have touched J.A.B.'s
breasts through her clothing on several occasions between August
1988 and June 1989, Nunn has not shown that the evidence
pertaining to any single such touching was materially different
from the evidence pertaining to any other. The question confront
ing the jury was whether to believe Nunn's defense (that no
purposeful touching had occurred) or to believe J.A.B.'s pre-
trial statements. This being so, Nunn's challenge to his
conviction is governed by the decision on rehearing in Covington,
where this court held, under similar circumstances, that even
though there was a conceivable ambiguity as to the incident
underlying the jury's verdict, this ambiguity had not appreciably
affected the verdict.
In short, Nunn has failed to convince us of the reason
able possibility that the jury's verdict on Count III reflects a
divergence of opinion among the jurors as to what exactly Nunn
had done. We find no plain error.
Propriety of Allowing the State to Present the
Testimony of a Former Assistant District Attorney
During the State's case-in-chief, the prosecutor indi
cated that she might wish to call Maurice McClure to the stand.
Ms. McClure had been an assistant district attorney in the Anchor
age District Attorney's Office when the sexual abuse of J.A.B.
was reported to the authorities. Working in conjunction with
Investigator Bennett, McClure prepared the case against Nunn for
presentation to the grand jury. More particularly, McClure
interviewed both J.A.B. and Joan Nunn on December 22, 1989, just
before those two witnesses testified at grand jury and
unexpectedly recanted their allegations against Nunn. McClure
subsequently left the District Attorney's Office and took a job
with the Anchorage Attorney General's Office. Another attorney
represented the State at Nunn's trial.
Nunn objected that, if McClure were to testify, then
the District Attorney's continued participation in the case would
violate Disciplinary Rule 5-102(A) of the attorneys' Code of
Professional Responsibility. As discussed in more detail below,
DR 5-102(A) generally requires a law firm to withdraw from a case
when it becomes apparent that any member of the firm will be
called as a witness on behalf of their client.
The trial judge ruled that McClure's testimony would
not disqualify the Anchorage District Attorney's Office from
pursuing the case against Nunn. The judge concluded that the
District Attorney's Office was not like a normal law firm:
The prosecution of criminal cases is mandated
to be the responsibility of the executive
branch of government. This responsibility is
fulfilled [in] the State of Alaska by prose
cuting cases through the District Attorney's
Office. Unlike a private litigant in a civil
case, the State of Alaska cannot simply with
draw from a criminal case and have [another
law] firm be substituted in to fulfill that
duty imposed by law.
Although the initial reaction this court
had was to preclude Ms. McClure from testify
ing, ... this court has found no support in
the case law to support the exclusion [or]
the prevention of Ms. McClure from testifying
in this case. Therefore, Ms. McClure will be
permitted to testify ..., but her testimony
shall be limited to those representations
purportedly made by Joan Nunn and [J.A.B.]
during that [particular] morning meeting that
she had with them on the date the case was
presented to the grand jury. ... [S]tate
ments made to her by Joan Nunn and [J.A.B.]
are being admitted as prior inconsistent
statements under Evidence Rule 613 and Evi
dence Rule 801(d)(1)(A).
Following this ruling, Nunn continued to argue against
McClure's testimony, but he shifted ground. Rather than challeng
ing the court's ruling on DR 5-102, Nunn's attorney told the
court that DR 5-102, "the disciplinary rule that I cited[,] was
more or less just a bit of additional information for the court
to consider[.] ... I don't think it should be the focal point
of ... the court's decision." The defense attorney told the
court that his real objection to McClure's contemplated testimony
was that McClure, as a former prosecuting attorney, would have
"an aura of expertise ... over and above ... any other witness."
Nunn's attorney did not provide the court with any legal
authority to support his objection to McClure's testimony.
Rather, he simply asserted that he knew of no authority to
support the court's ruling - although he admitted, "I'm not
certain that means much, because there's lots of things I don't
know precedent for." The court re-affirmed its ruling.
However, having won this legal battle, the State chose
not to call McClure during its case-in-chief. The issue arose
again two days later, after Nunn had called both Joan Nunn and
J.A.B. as witnesses for the defense. The prosecutor announced
that she wished to call McClure as a rebuttal witness.
Nunn again objected that McClure's testimony would be
improper. Nunn's attorney argued that, if the court allowed
McClure to take the stand, this would in effect allow the
District Attorney's Office to play a dual role as both advocate
and witness against Nunn. Nunn's attorney also argued that
anything McClure might say would simply be redundant of the
testimony that Bennett could give if he were recalled to the
stand.
The trial judge re-affirmed his previous ruling - that
McClure could testify within the limited area of inconsistent
statements that Joan Nunn and J.A.B. had made to McClure during
their pre-grand jury interview of December 22, 1989. The court
pointed out that Nunn had still failed to provide any legal
authority to support his objection: "I cannot condemn [this]
practice without any supporting case law."
McClure then took the stand. She testified that, while
J.A.B. had been hesitant to discuss the specifics of the sexual
abuse during their interview, J.A.B. had used dolls to portray
what had happened to her and she affirmed that her stepfather had
done these things. McClure also testified that, following her
interview with J.A.B., she then interviewed Joan Nunn. McClure
stated that, during these pre-grand jury interviews, neither
J.A.B. nor Mrs. Nunn ever said anything to indicate that their
previous statements to Investigator Bennett had been untruthful.
On appeal, Nunn renews his argument that McClure should
not have been permitted to testify. He argues first that
McClure's testimony was merely cumulative of what Bennett could
have said. However, when this argument was raised in the trial
court, the prosecutor responded by pointing out that Bennett had
admitted, at various times in his testimony, that he did not know
or could not recall the answers to specific questions pertaining
to the interview with J.A.B.. Moreover, Bennett had admitted
that he did not participate in or overhear McClure's interview
with Joan Nunn. On appeal, Nunn does not address or contradict
the prosecutor's assertions.
Nunn also argues that, assuming McClure had relevant
testimony to give, the District Attorney's Office should have
been required to withdraw from the case before McClure was
allowed to testify. However, Nunn did not present this argument
to the trial court. At trial, Nunn argued that McClure should be
barred from testifying - not that she should be allowed to
testify after the District Attorney's Office was removed from the
case.
Moreover, even assuming that Nunn's argument was
preserved, we find that the trial judge did not abuse his discre
tion when he allowed McClure to testify. Disciplinary Rule 5-
102(A) states:
Withdrawal as Counsel When the Lawyer Becomes
a Witness.
(A) If ... a lawyer learns ... that he
or [another] lawyer in his firm ought to be
called as a witness on behalf of his client,
he shall withdraw from the conduct of the
trial and his firm ... shall not continue
representation in the trial, except that he
may continue the representation and he or
[the other] lawyer in his firm may testify in
the circumstances enumerated in DR 5-
101(B)(1) through (4).
Of the exceptions listed in DR 5-101(B)(1) - (4), only one is
pertinent here:
(B) A lawyer ... may undertake ... em
ployment and he or [another] lawyer in his
firm may testify:
. . .
(4) As to any matter, if refusal
would work a substantial hardship on the
client because of the distinctive value of
the lawyer or his firm as counsel in the
particular case.
When the trial judge denied Nunn's challenge to McClure's testimo
ny, he pointed out that the District Attorney's Office was
obliged by law to prosecute criminal cases, and that "[u]nlike a
private litigant in a civil case, the State of Alaska cannot
simply withdraw from a criminal case and have [another law] firm
be substituted in to fulfill that duty." The judge's ruling
might reasonably be interpreted as a finding that the exception
listed in DR 5-101(B)(4) applies to criminal prosecutions - that
withdrawal of the Department of Law "would work a substantial
hardship on the client because of the distinctive value of the
lawyer or [the] firm as counsel".
Moreover, leaving aside the proper interpretation of
DR 5-101(B)(4) (an issue which the parties have not briefed),
this court's decision in O'Brannon v. State, 812 P.2d 222 (Alaska
App. 1991), makes it clear that the District Attorney's Office is
not disqualified simply because another member of the Department
of Law testifies for the State.
The defendant in O'Brannon was prosecuted for criminal
contempt of court after she violated an injunction that had been
obtained by the Consumer Protection Division of the Attorney
General's Office. 812 P.2d at 224-26. The assistant attorney
general who had pursued the civil action against O'Brannon sat at
counsel table during the criminal prosecution and assisted the
prosecutor in much the same fashion as the primary police investi
gator often assists the prosecutor at a felony trial. Id. at 226-
27.
This court held that, when another government lawyer
participates in a criminal prosecution in a strictly delineated,
non-attorney role, there is no violation of the ethical and
litigation concerns underlying DR 5-102(A). The court cited with
approval the decision in People ex rel. Younger v. Superior Court
(Rabaca), 86 Cal.App.3d 180, 150 Cal.Rptr. 156 (Cal. App. 1978),
where the California Court of Appeal refused to disqualify an
entire district attorney's office when one of the assistant
district attorneys testified as a witness for the prosecution.
[T]he problem with having a prosecutor-
witness is that the prosecutor's testimony
might be accorded too much weight. [But
when] the prosecutor-witness [is not] the
prosecutor at trial, there would be no
problem with enhanced credibility. ...
[T]here would be no impropriety in the prose
cutor testifying, as long as he did not hold
himself out to be the prosecutor at trial.
Finally, ... there could be no impropriety in
having the prosecutor argu[e] the credibility
of a prosecutor-witness to the jury, because
there was no functional difference between
that and the district attorney arguing the
credibility of an investigator.
O'Brannon, 812 P.2d at 227 (citations omitted). This court
concluded, "We believe that [in O'Brannon's case] the trial court
could properly find that [the assistant attorney general's]
actions during the trial were consistent with those of being an
investigator and that the problems of credibility and impropriety
that are the basis for DR 5-102(A) did not arise." Id. at 227.
Similarly, we find that the trial judge in Nunn's case
did not abuse his discretion when he allowed McClure to testify.
McClure's role in Nunn's trial was much more limited than the
role played by the assistant attorney general in O'Brannon.
McClure gave relatively brief testimony during the State's
rebuttal case. (McClure's testimony, including direct
examination, cross-examination, and re-direct examination, covers
16 pages of transcript.) We recognize that McClure was
the attorney who screened Nunn's case and who prepared it for
grand jury; she probably had formed opinions about the various
people involved in the case, and she potentially had access to
information beyond the bounds of the evidence the jury heard.
However, before McClure took the stand, the trial judge expressly
ruled that McClure's testimony would be confined to the issue of
any prior inconsistent statements of J.A.B. and Joan Nunn on
December 22, 1989. Nunn does not assert that this limitation was
violated. In fact, Nunn explicitly argues on appeal that McClure
said nothing that might not just as easily have come from the
mouth of a police investigator. Under these circumstances,
McClure's appearance as a witness in Nunn's prosecution did not
violate the rule enunciated in O'Brannon.2
Nunn also argues that McClure was under political
pressure to prosecute Nunn, that McClure was predisposed to
believe J.A.B.'s allegations of sexual abuse and to disbelieve
her later recantation, and that McClure's testimony at trial was
inaccurate and misleading. Nunn's assertions were potential
avenues of cross-examination, but they do not disqualify McClure
from appearing as a witness.
Conclusion
The judgement of the superior court is AFFIRMED.
_______________________________
1 In one instance, the jury instructions departed from the
language of the indictment. Count II of the indictment charged
Nunn with "touching J.A.B.'s breasts underneath her clothing with
his hand". Jury Instruction 33 abridged the grand jury's descrip
tion of the crime to "touching J.A.B.'s breast with his hand".
Nunn did not object to this change in wording.
2 Nunn cites Pease v. District Court, 708 P.2d 800 (Colo.
1985), for the proposition that an entire prosecutor's office
must be disqualified whenever any past or present member of that
office is called as a witness for the government in a criminal
case. We conclude, however, that Pease is inconsistent with
Alaska law on this question.
