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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
CHARLES HENRY, )
) Court of Appeals No. A-4168
Appellant, ) Trial Court No. 3AN-90-4807
Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1321 - October 22, 1993]
________________________________)
Appeal from the Superior Court, Third
Judicial District, Anchorage, Donald D.
Hopwood, Judge.
Appearances: Kevin F. McCoy, Assistant
Public Defender, and John B. Salemi, Public
Defender, Anchorage, for Appellant. Nancy R.
Simel, 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.
Charles Henry appeals his convictions and sentences for
first- and second-degree sexual abuse of a minor. We affirm
Henry's convictions, but we vacate Henry's sentences and remand
this case for a new sentencing hearing.
In 1990, Henry lived in Chignik with his girlfriend,
O.S., and her two daughters, nine-year-old S.S. and ten-year-old
J.S.. In late July, O.S. was away from home, engaging in commer
cial fishing, and J.S. was in Anchorage for medical treatment.
Henry remained in Chignik with S.S..
Late in the morning of July 23, 1990, Henry brought
S.S. to the home of Mrs. K., a relative of S.S.'s, and then left.
S.S. stayed with Mrs. K. and her nine-year-old son, A.J.K., for
several hours. At some point in the afternoon, Mrs. K. left to
go to the grocery store. While Mrs. K. was gone, S.S. told
A.J.K. that she wanted to spend the night at his house, that she
didn't want to go home, and that Henry was "sick". A.J.K. asked
S.S. if Henry had ever touched her. S.S. said no three times,
but when A.J.K. asked her a fourth time, she said that Henry had
"[taken] down her clothes and ... got on top of her." S.S. also
told A.J.K. that Henry had given her $16.00 not to tell anyone.
At about 4:50 p.m., while Mrs. K. was still away,
Ronald L. Bowers, the Chignik village public safety officer and
fire chief, brought some fish to Mrs. K.'s neighbor. A.J.K. saw
Officer Bowers and told him that S.S. had said that Henry had
hurt her. Officer Bowers came to Mrs. K.'s house and found S.S.
sitting in a corner with her head down, acting somewhat
frightened and concerned.
When Officer Bowers asked S.S. if she had anything to
tell him, she didn't say anything. Then Officer Bowers asked her
if she had told A.J.K. that Henry had hurt her; he told S.S.
that, if she was hurt, he would help her. According to Bowers,
S.S. then replied that "she was hurting where [Henry] humped her.
She said that ... she took a shower the night before and that
[Henry] came into her bedroom and took her pants down and that he
humped her, and that he _wet› inside her. She said she was
afraid to go back home." S.S. also told Officer Bowers that,
although Henry had never done this to her before, she had seen
Henry try to do it to her sister, J.S., but J.S. had pushed him
off.
Officer Bowers left the K. residence. When Mrs. K.
returned home after Officer Bowers left, A.J.K. and S.S. informed
her that Henry was going to be arrested. A.J.K. told his mother
that Henry had touched S.S., that they had told Officer Bowers,
and that Officer Bowers was out looking for Henry. Mrs. K. asked
S.S. why Bowers was looking for Henry, and S.S. answered that
Henry had "raped" her the night before. Mrs. K. asked S.S. if
she knew what the word "rape" meant, and S.S. said she knew.
Then Mrs. K. asked S.S. if Henry had touched her private parts,
and S.S. said yes.
Meanwhile, Bowers had gone into town to call his super
vising trooper, Joseph Masters. Trooper Masters instructed
Bowers to contact O.S. on her fishing boat and to arrest Henry.
Officer Bowers arrested Henry shortly thereafter.
O.S. returned to Chignik around 9 o'clock that evening,
approximately two hours after Henry's arrest. She allowed S.S.,
accompanied by Mrs. K., to be taken to Dillingham for a medical
examination.
Doctor Thomas Bellinger examined S.S. at Kanakanak
Hospital in Dillingham. Trooper Belden and Mrs. K. told Dr.
Bellinger that S.S. was a possible sexual abuse victim. S.S.
told Dr. Bellinger that she had been in her bedroom, trying to
sleep, when someone "undressed [himself] and undressed her and
tried to put his private parts in hers." S.S. indicated to Dr.
Bellinger that it was her mother's boyfriend who had done this.
Dr. Bellinger found several bruises on S.S.'s knees
and shins, which he estimated to be less than two to three days
old. Dr. Bellinger noted that S.S.'s hymen was intact, but he
testified that this did not rule out penetration. He also
measured the diameter of S.S.'s vaginal opening. He determined
that the measurement was within normal range for children of
S.S.'s age and height; therefore, he could not conclude that she
had been penetrated. Examination by Woods lamp (an ultraviolet
light device) revealed an area on S.S.'s labia majora that could
have been either a fungal infection or sperm. Dr. Bellinger
found no other evidence of fungal infection, and further tests
for sperm were negative. From this Dr. Bellinger determined that
the Woods lamp results were inconclusive. Based on the entire
examination, Dr. Bellinger concluded that he could not tell
whether S.S. had been sexually penetrated.1
Mrs. K. and S.S. spent the night in Dillingham. The
next morning (July 24), Trooper Belden interviewed S.S. at the
Alaska State Troopers office. S.S. told Belden that Henry had
put his penis in her "bottom" the night before.
Three days later (July 27), Troopers Steven C. DeHart
and Rosemary Decker conducted a videotaped interview of J.S. in
Anchorage. J.S. told Investigator Decker that Henry had touched
her "private part" under her nightgown and over her underwear.
At some point during the interview, Trooper DeHart told J.S. that
her sister S.S. had accused Henry of sexual abuse. However, it
is unclear whether J.S. knew, when she told the troopers that
Henry had sexually abused her, that S.S. had already accused
Henry of sexual abuse.2 The evidence is also unclear as to
whether J.S. knew that S.S. had accused Henry of trying to abuse
J.S.. The record does show that several times, when Investigator
Decker or Trooper DeHart was about to conclude the interview and
turn off the video recorder, J.S. stopped them and stated that
she wished to continue.
On July 30, 1990, S.S. and J.S. testified before a
grand jury considering charges against Henry. Shortly before
S.S. was scheduled to testify, O.S. told Trooper Masters that,
three days before, S.S. had confessed to her that A.J.K., not
Henry, had sexually abused her. Trooper Masters immediately re-
interviewed S.S.. At the time, S.S. indicated that both A.J.K.
and Henry had abused her.
At grand jury, the two sisters reiterated their asser
tions that Henry had sexually abused them. S.S. testified that
Henry had sexually abused her twice. S.S. also told the grand
jury that Henry had "hurt" her sister J.S. in the same way. J.S.
testified that Henry had touched her genitals through her
clothes.
A few months later, O.S. contacted the Public Defender
Agency (who was representing Henry) and said that she had some
thing important to tell them. In response to O.S.'s call, a
Public Defender investigator interviewed S.S.. S.S. told the
defense investigator that Henry had not abused her, and that
A.J.K. had. S.S. further stated that A.J.K. had threatened her
and had told her to say that Henry had raped her, and that both
she and A.J.K. had lied to the authorities. In addition, S.S.
told the defense investigator that she did not even know what the
word "rape" meant.
Acting on this new information, the defense
investigator interviewed J.S.. J.S. told the investigator that
Henry had never touched her. She asserted that no one had
pressured her to change her story, and she declared that she had
never spoken to her mother about Henry's abusing her. J.S. told
the investigator that Mrs. K. had pressured her into accusing
Henry of sexual abuse.
Henry's trial began a few weeks later. Both S.S. and
J.S. were called as witnesses. S.S. initially testified that she
could not remember whether Henry had sexually abused her, and
that she could not remember telling anyone that he had. S.S.
then flatly denied that Henry had done "anything ... bad." S.S.
testified that A.J.K. had tried to sexually abuse her, and that
he had told S.S. to say that Henry had done it because A.J.K. did
not like Henry.
J.S. likewise denied that Henry had touched her. She
gave inconsistent answers when asked whether she had told Investi
gator Decker that Henry had sexually abused her. However, J.S.
declared that she had falsely accused Henry. She gave two
explanations for this. First, J.S. asserted that Mrs. K. had
told her to accuse Henry of sexual abuse or she would hurt S.S..
J.S. stated that Mrs. K. had made this threat and demand in early
July, before J.S. left for Anchorage. Later, during direct
examination by the defense attorney, J.S. gave a different
explanation for accusing Henry of sexual abuse:
DEFENSE COUNSEL: Do you remember telling
[the troopers] that [Henry] touched you in a
private place?
J.S.: Yes.
DEFENSE COUNSEL: Okay. [J.S.], why did
you tell the troopers that [Henry] touched
you?
. . .
J.S.: Because he wasn't my dad.
DEFENSE COUNSEL: Okay. Were you mad at
[Henry]?
J.S.: Yes.
DEFENSE COUNSEL: Okay. Are you sure
that's the only reason you told them that he
touched you?
J.S.: Yes.
. . .
DEFENSE COUNSEL: Okay, but I'm not sure
I understand. Why would you say something
like that just because [Henry] wasn't your
dad?
J.S.: I didn't want him around.
DEFENSE COUNSEL: Okay, were you mad at
him?
J.S.: Yes.
Like her sister, J.S. denied speaking to her mother
about Henry's touching her. J.S. also testified that, before the
troopers interviewed her in Anchorage, Officer Bowers had tele
phoned her and told her that something had happened involving
S.S. and Henry.
The jury found Henry guilty of one count of first-
degree sexual abuse of a minor (for engaging in sexual
penetration of S.S.) and one count of second-degree sexual abuse
of a minor (for engaging in sexual contact with J.S.).
Henry argues that, because S.S. and J.S. recanted their
allegations of sexual abuse at his trial, the State did not
present sufficient evidence to support his convictions. Henry
relies on this court's decision in Brower v. State, 728 P.2d 645,
647-48 (Alaska App. 1986), which established the requirement
that, when the purported victim of sexual abuse recants the
accusation at trial, the State must present corroborating
evidence to support the prior allegation of sexual abuse. But
while Brower requires corroborating evidence, this corroborating
evidence need not take any specific form, and it need not
independently establish the crime. Thompson v. State, 769 P.2d
997, 1000 (Alaska App. 1989); Bodine v. State, 737 P.2d 1072,
1075-76 (Alaska App. 1987). See also Sheldon v. State, 796 P.2d
831, 839 (Alaska App. 1990). "The rule governing corroboration
is a flexible one, ... grounded in common sense: corroborating
evidence is sufficient [when] it induces a rational belief in the
truthfulness of a witness' testimony." Bodine, 737 P.2d at 1075.
When judging the legal sufficiency of the evidence, we
must construe the evidence in the light most favorable to
upholding the jury's verdicts. Dorman v. State, 622 P.2d 448,
453 (Alaska 1981); Silvernail v. State, 777 P.2d 1169, 1172
(Alaska App. 1989). In Henry's case, we conclude that S.S.'s and
J.S.'s independent accusations of sexual abuse are sufficient
corroborating evidence.
In her initial statements to the K. family and to the
police, S.S. said not only that Henry had sexually penetrated
her, but that Henry had tried to do the same thing to J.S..
Shortly afterwards, J.S. corroborated S.S.'s accusation; she told
the troopers that Henry had touched her genitals. Viewing the
testimony in the light most favorable to the State, J.S. made
this accusation against Henry without knowing that S.S. had
already made a similar accusation. The two sisters repeated
their accusations at grand jury. Then, as Henry's trial drew
nearer, both sisters simultaneously recanted their accusations
and instead protested Henry's innocence. We note that, at
Henry's trial, J.S. gave two materially conflicting explanations
of why she had been motivated to falsely accuse Henry of sexual
abuse. J.S. first stated that Mrs. K had threatened to hurt her
sister, S.S., unless J.S. accused Henry of sexual misconduct; but
J.S. later declared that her only motivation had been resentment
against Henry himself.
We conclude that these circumstances gave the jurors a
rational basis to distrust the sisters' recantations at trial and
to credit the sisters' earlier statements to the authorities and
their testimony at grand jury. Therefore, the requirement of
corroboration was met, and the jury's verdicts are supported by
sufficient evidence.
Henry next argues that he should be granted a new trial
because the prosecuting attorney made several improper comments
during opening statement, examination of witnesses, and
summation. Henry did not object to any of these comments when
they were made, so we review his claims for plain error only.
Potts v. State, 712 P.2d 385, 390 (Alaska App. 1985).
Henry's first allegation concerns a comment the prosecu
tor made during his opening statement to the jury. The
prosecutor was explaining that S.S. and J.S. had recanted their
accusations of sexual abuse, and that it was the State's theory
that the sisters had done this because they were under pressure
from their mother, O.S.:
PROSECUTOR: And [their stories] changed
somewhat, based on the additional contact
these two girls had with their mom -- their
mom, the defendant's girlfriend. These cases
are tragic: alliances are set up, the state
ments are made.
The prosecutor then wondered, rhetorically, whether the jurors
might be asking themselves why the State of Alaska had involved
itself in the affairs of this family. He proceeded to answer his
own question:
PROSECUTOR: Our presence [in this case]
is [so] that kids ten years old are not ...
violated. If their mom is not going to pro
tect them, then we are; [child abuse is]
against the law.
Given the circumstances of this case (two sisters allege that
their mother's boyfriend has sexually molested them, and
subsequently retract the allegations after he is indicted), we do
not find the prosecutor's comment to be plain error.
Henry also asserts that the prosecutor made another
improper comment during opening statement when he referred to
Henry as a "child molester". This comment occurred toward the
end of the prosecutor's opening statement:
PROSECUTOR: It's the State's position, a
very strong position, that [the defendant] is
a child molester. He took an opportune time
to violate two young girls. You'll find,
when this trial is over with, that you may
have some anger. Put that aside. You may
have some feelings. Put [them] aside. Be
cause, as the court said, feelings have noth
ing to do in this courtroom. ... The evi
dence is what people testify to, under oath.
Listen to it. When the trial is over, you'll
find there can be no verdict in this case but
guilty.
In context, the term "child molester" appears to have merely
summarized the prosecutor's contention that Henry was guilty of
sexually abusing two minors. Henry argues that labeling him a
"child molester" is more inflammatory than asserting that he is
guilty of sexually abusing children. To the extent that this
might be true, the prosecutor immediately cured the inflammatory
connotation by telling the jury that they were to be governed
solely by the evidence, not their feelings. We find no plain
error.
Henry next complains of a question the prosecutor asked
the children's mother, O.S., during her examination. As noted
above, O.S. is Henry's girlfriend; Henry had lived at her house
for a year and a half, and they planned to marry. O.S. had been
away from home, commercial fishing, when Officer Bowers contacted
her to tell her that S.S. had reported being sexually assaulted.
By asking O.S. about her response to S.S.'s report that she had
been assaulted, the prosecutor attempted to demonstrate that O.S.
had lacked normal concern over the possibility that Henry had
sexually abused her daughter.
The prosecutor paid particular attention to the fact
that, even though O.S. had returned to Chignik in response to
Bower's call, she did not accompany S.S. to Dillingham for the
physical examination and trooper interview. Instead, O.S. asked
K.K. to accompany S.S. to Dillingham, while O.S. stayed in
Chignik with Henry. O.S. explained that she was "too tired and
... dirty" to make the trip. The prosecutor then asked O.S. if
it was true that she had told people she was not going to Dilling
ham with S.S. because she wanted to return to the fishing grounds
as soon as possible. O.S. admitted that she might have told
people that the reason she didn't go to Dillingham with S.S. was
that she wanted to fish some more, but she asserted that she
never did return to the fishing "because the whole thing made me
sick". Nevertheless, the prosecutor persisted:
PROSECUTOR: I'll ask you again: You
let [K.K.] take [S.S.] into Dillingham for a
doctor to look at her because she said she
had been raped, correct?
O.S.: Uh-huh.
PROSECUTOR: Okay. Did you tell people
you let [K.K.] do that because you wanted to
go fish some more?
O.S: Yeah, I told her [that] I was
going to go back out fishing, but I didn't
feel like it. ... This whole thing made me
sick.
PROSECUTOR: Mrs. [S.] ...
O.S.: So I just stayed home, and I
said, "The heck with it; I ain't going
fishing again."
On cross-examination, Henry's defense counsel attempted
to ameliorate the effect of this testimony by asking O.S. if she
had seen any signs that S.S. had in fact been assaulted:
DEFENSE COUNSEL: Did [S.S] complain of
any soreness?
O.S: No.
DEFENSE COUNSEL: Did she complain of
any hurting at all?
O.S: No, because I asked her if she was
hurting, and she said no.
DEFENSE COUNSEL: Did she complain about
any bleeding?
O.S: Unh-unh.
DEFENSE COUNSEL: Did you check to see
if she had anything like that?
O.S.: Yes, I checked her, and I didn't
see nothing.
DEFENSE COUNSEL: Did you ...
O.S.: I figured she'd be torn up or
bleeding or something, but she didn't have
nothing.
DEFENSE COUNSEL: How did she act as far
as her behavior? ... Was she upset? Did she
act upset? Did she act happy? Or normal?
... How did she act?
O.S.: She acted happy.
On re-direct, the prosecutor returned to this subject:
PROSECUTOR: You said to ... [the
defense attorney] and to this jury something
which I wrote down in large print. You said
[that] you examined [S.S.], and you said, "I
didn't see anything."
O.S.: Yeah, I figured I'd see her bleed
ing or something, or in pain. I didn't see
nothing.
PROSECUTOR: Did you see any pain in her
heart?
O.S.: No.
PROSECUTOR: Do you know that a person
doesn't have to be bleeding and torn apart to
have somebody hurt them sexually? Did you
know that?
O.S.: I didn't know that.
Henry argues that the prosecutor's question, "Did you
see any pain in her heart?", was argumentative. It was.
However, there was no objection. Moreover, the prosecutor
immediately followed his improper question with another that was
more to the point: he asked O.S. if she knew that sexual abuse
does not always leave the child-victim visibly injured. We do
not believe that the course of Henry's trial was affected by the
isolated argumentative question he complains of; thus, we find no
plain error.
Henry next challenges a portion of the prosecutor's
direct examination of Trooper Ron Belden, the officer who inter
viewed S.S. in Dillingham and who subsequently led the investiga
tion of the case against Henry. Early in Belden's direct examina
tion, the following exchange occurred:
PROSECUTOR: Trooper, in your 16 years
as a trooper, about how many sexual assaults
have you investigated? Not arrested or
convicted individuals, just the complaint
comes in. How many of those have you
investigated? How about last year, can you
remember ... that?
BELDEN: I'd say, in the last year,
approximately 10 to 15, I imagine.
PROSECUTOR: Okay. Do all those cases
come to trial?
BELDEN: No.
PROSECUTOR: Do all those cases result
in the arrest of an individual?
BELDEN: No.
PROSECUTOR: Why is that?
BELDEN: Well, some are unfounded. Some
may not have enough evidence to prosecute on.
PROSECUTOR: And some may not be a real
crime?
BELDEN: That's correct.
Even though the defense attorney did not object to this exchange,
there were obvious grounds for objection. The prosecutor's
questions and the trooper's answers implied that Belden was an
experienced sex abuse investigator who knew how to screen out
unfounded allegations of sexual abuse, and that, since the case
against Henry had been pursued rather than dropped, the
accusations against Henry must be well-founded.3
However, we will not find plain error when there
appears to have been a tactical reason to withhold objection.
Massey v. State, 771 P.2d 448, 453 (Alaska App. 1989); Potts v.
State, 712 P.2d 385, 394 n.11 (Alaska App. 1985). In the present
case, Henry's attorney apparently chose to respond to Belden's
testimony, not by objecting, but by pursuing the matter again
during cross-examination.
Because S.S. had clearly accused Henry of sexually
penetrating her in her interview with Trooper Belden in
Dillingham, and because J.S. had clearly accused Henry of
engaging in sexual contact with her in her interview with the
troopers in Anchorage, Henry was essentially forced to concede
that the troopers had had sufficient reason to launch their
criminal investigation. Henry therefore adopted a trial strategy
of asserting that the troopers had, early on, become so emotional
about S.S.'s accusation and so convinced that Henry was guilty
that they stopped asking the questions that would get to the
truth of the matter, and that they began ignoring the evidence
that Henry was, in fact, innocent.4
In apparent accord with this strategy, Henry's attorney
did not object to Belden's assertion that he believed Henry was
guilty. Instead, during cross-examination, the defense attorney
asked Belden to reiterate this belief, trying to derive advantage
from the fact that Belden had become subjectively convinced of
Henry's guilt:
DEFENSE COUNSEL: You referred to [S.S.]
as a "victim". But, at that point in time,
she was an alleged victim -- wouldn't that be
a more accurate characterization?
BELDEN: If [you are asking my opinion],
I'd say [she] is a victim.
DEFENSE COUNSEL: You would say [she] is
a victim?
BELDEN: Yes.
DEFENSE COUNSEL: Okay, so at the time
you questioned this child, you assumed she
was a victim?
BELDEN: That's not what I said.
DEFENSE COUNSEL: Okay, well, tell me
what you said regarding that.
BELDEN: I use the word "victim" today;
upon talking to her and listening to her, her
reactions, I'd say she was a victim.
DEFENSE COUNSEL: Okay. You made that
determination, then, before ... trial -- that
she was a victim, correct?
BELDEN: Yes, I wouldn't be here today
if I [hadn't].
Asking a state trooper to announce his belief in the defendant's
guilt obviously presents a two-edged sword for the defense.
Nevertheless, such a tactic is within the realm of reasonable
defense strategies. We therefore find no plain error.
Henry also complains of the manner in which the
prosecuting attorney returned to Belden's testimony during his
summation to the jury. Responding to Henry's assertion that the
authorities had unjustifiedly prosecuted Henry, the prosecutor
argued:
If you folks want to believe that the
State of Alaska has nothing else to do, and
the four troopers in this region have nothing
else to do, but create bogus cases against
our citizens, then I guess you should walk
him out of the door, if that's what you think
we do out here. More particularly, if you
remember the testimony of both troopers, who
indicate[d that] they investigate sexual
assaults with some frequency, they look at
cases, they talk to witnesses, they talk to
people, and some cases are unfounded, was the
word Trooper Belden uses. And the person is
not prosecuted because of that. The
allegations are unfounded. Well, I guess if
you think that when a little girl reports to
her best friend that something happened, and
that same report is given to a VPSO, and that
same report is given to an Alaska State
Trooper, that we shouldn't prosecute those
cases, I guess that that's what we should do.
(emphasis added)
We agree with Henry that this argument was improper.
It contains the same potential for unfair prejudice as the
previously described direct examination -- the assertion that
police professionals who know how to evaluate a criminal case
have determined that Henry is guilty, and the jury should accept
their conclusion. However, the prosecutor's statement could be
viewed as illustrative of Henry's claim that the authorities had
prejudged the case after hearing S.S.'s initial report of sexual
abuse. Given Henry's tactical response to Belden's testimony, we
cannot find plain error in defense counsel's failure to object to
the prosecutor's argument.
Finally, Henry contends that the prosecutor exceeded
the proper scope of argument when he told the jury:
[S.S.] may be a slow learner; [S.S.] may
be mildly retarded. [S.S.] came to Trooper
Belden and told [him that] the defendant
sexually assaulted her. [J.S.] loves her
mother very much and so does [S.S.]. This is
a complex, traumatizing situation. We've got
two young girls who love their mother, the
only parent left, and a mother who loves the
defendant.
I'm not suggesting to you ... that
[O.S.] actually sat these girls down and
said, "I want you to go and lie." But you as
parents, you as adults, ... as to what you
heard today, [you] understand that pressure
can be very subtle. We know what our parents
like and don't like. We know when -- what it
means that I want [Henry] back home. I ask
for you, when you do deliberate in this case,
don't congratulate the defendant because he
chose two victims who love their mom. Don't
congratulate him because he picked a young
girl who is slower than the rest. Don't
congratulate him because it was decided to
interview people late in time, by the time
their stories got all confused. If you
congratulate him for this, then there is some
problem here in the system.
This is not an enjoyable process for me,
[defense counsel], or anybody. It is not
fun, but you as society, you as people, have
an obligation, and part of that obligation is
to sustain what we do as people. And part of
that sustenance is to say, "This little girl,
I believe. This second little girl, I be
lieve. They were violated by that man."
There must be a verdict of guilty on all
three counts. There must.
(emphasis added) Henry asserts that, by arguing the case this
way, the prosecutor essentially urged the jury to convict on
emotion -- the antipathy the jurors might feel toward an adult
who would victimize a retarded child, or the sympathy they might
feel toward children whose mother refused to protect them.
However, the prosecutor's reference to S.S.'s level of
mental functioning was apparently made in anticipation of Henry's
argument that S.S.'s initial accusations of sexual abuse had been
the product of suggestion and undue influence. A few minutes
later, Henry's attorney in fact argued to the jury that nine-year-
old S.S. was "a little five-year-old to six-year-old girl, as far
as her mentality is concerned, who is highly suggestible, who is
[easily] led, [easily] influence[d]". As to the prosecutor's
statements about the love S.S. and J.S. had for their mother,
this was merely a reiteration of the prosecutor's basic theme
that the sisters had recanted because of pressure from O.S., that
their recantations should not be trusted, and that the jury
should believe the girls' initial accusations. We find no plain
error.
For these reasons, we reject Henry's contention that he
should receive a new trial because of statements the prosecutor
made during examination of witnesses and argument. We turn now
to Henry's final contention on appeal: that the judge should
have been personally present at his sentencing hearing rather
than presiding by telephone.
On August 7, 1991, Henry, his attorney, and the prosecu
tor appeared for sentencing in Anchorage. Superior Court Judge
Donald D. Hopwood conducted the proceedings by telephone. Judge
Hopwood, who resides in Kodiak, had earlier informed the parties
that he intended to preside telephonically at the sentencing
hearing. Henry filed an objection to this announced procedure,
arguing that he was entitled to stand face-to-face with the judge
who sentenced him. Judge Hopwood, relying on Criminal Rule 38.1,
overruled Henry's objection.
On appeal, Henry renews his argument that a criminal
defendant is entitled to appear personally before the sentencing
judge. Henry's appeal requires us to reconcile two potentially
conflicting provisions of the Alaska Criminal Rules.
Criminal Rule 38(a) declares that a defendant's
presence is required "at the imposition of sentence".5 At the
same time, Criminal Rule 38.1(a) apparently empowers a judge to
preside telephonically at any criminal proceeding, including a
sentencing, regardless of whether the defendant is participating
in person or by telephone:
... The court may allow telephonic participa
tion of one or more parties, counsel[,] or
the judge at any proceeding in [the court's]
discretion.
The question presented in this case is whether a defendant's
right under Criminal Rule 38(a) to be physically present at
sentencing constrains a judge's authority under Criminal Rule
38.1(a) to preside at sentencing by telephone. We hold that it
does. Unless the defendant consents to communicate with his or
her sentencing judge by telephone, the judge must be physically
present with the defendant when the defendant exercises his or
her right of allocution and when the judge initially pronounces
the defendant's sentence.6
The United States Supreme Court has indicated that a
defendant's right to be present "at every stage" of criminal
proceedings is rooted both in the confrontation clause of the
Sixth Amendment, Illinois v. Allen, 397 U.S. 337, 338; 90 S.Ct.
1057, 1058; 25 L.Ed.2d 353 (1970), and in the due process
guarantees of the Fifth and Fourteenth Amendments, Kentucky v.
Stincer, 482 U.S. 730, 745; 107 S.Ct. 2658, 2667; 96 L.Ed.2d 631
(1987); United States v. Gagnon, 470 U.S. 522, 526; 105 S.Ct.
1482, 1484; 84 L.Ed.2d 486 (1985) (per curiam). The Alaska
Supreme Court has adopted this view as a matter of state
constitutional law: "[I]n Alaska, the [defendant's] right to be
present [at every stage of the trial] is founded on the state
constitutional rights of the accused to due process and to
confront the witnesses against him. Alaska Constitution art. I,
1 and 7." Wamser v. State, 652 P.2d 98, 101 n.10 (Alaska
1982); accord Dolchok v. State, 639 P.2d 277, 283 (Alaska 1982).
Regarding the first sentence of Criminal Rule 38(a) -- the
provision guaranteeing a defendant's right to be present at
sentencing -- the Alaska Supreme Court has stated that the rule
is premised on the "leading principle ... of criminal procedure
... that, after indictment ... , nothing shall be done in the
absence of the [defendant]." Noffke v. State, 422 P.2d 102, 104
(Alaska 1967), quoting Lewis v. United States, 146 U.S. 370, 372;
13 S.Ct. 136, 137; 36 L.Ed. 1011, 1012 (1892).
Henry's case does not involve the right of
confrontation. The State did not present evidence at Henry's
sentencing; the hearing was devoted solely to the sentencing
arguments of the parties and to Henry's allocution. We
additionally note that, even if the State had presented evidence,
Henry would have been there to confront it. However, as noted
above, a defendant's right to be present at sentencing also rests
on notions of due process. Because of this due process aspect,
the defendant's right to be present extends, not simply to
proceedings in which the defendant confronts adverse witnesses or
evidence, but to any trial-related proceeding at which the
defendant's presence has a "reasonably substantial" relation to
the defendant's ability to defend against the criminal charge:
"Thus, [under the Due Process Clause,] a defendant is guaranteed
the right to be present at any stage of the criminal proceeding
that is critical to its outcome if his presence would contribute
to the fairness of the procedure." Kentucky v. Stincer, 482 U.S.
at 745, 107 S.Ct. at 2667.
Moreover, the Alaska Supreme Court has indicated that
Criminal Rule 38(a) may confer a broader right of presence than
would otherwise be required by the constitutional guarantees of
confrontation and due process. In State v. Hannagan, 559 P.2d
1059, 1064 (Alaska 1977), the court held that Criminal Rule 38(a)
guarantees a defendant the right to be present when testimony is
played back to the jury, even though the court also indicated
that, under normal circumstances, the error would be harmless
since no evidence is taken and nothing is litigated at jury
playbacks. Id. at 1066. Similarly, in Dolchok v. State, 639
P.2d 277, 283-85 (Alaska 1982), the supreme court held that it
was error for the defendant to be absent from a pre-trial
conference at which only purely legal and procedural matters were
discussed. (As in Hannagan, the supreme court indicated that a
defendant's absence from a conference of such a circumscribed
scope would normally be harmless. Id. at 284-85.)
It appears that a defendant's absence from the type of
proceedings involved in Hannagan and Dolchok would not violate
the Federal Constitution. In Kentucky v. Stincer, the United
States Supreme Court held that neither a defendant's Sixth
Amendment right to confrontation nor his Fourteenth Amendment
right to due process of law required the defendant's presence at
an in-chambers examination to determine a witness's competency to
testify. The Court declared, "Respondent has given no indication
that his presence at the competency hearing ... would have been
useful in ensuring a more reliable determination as to whether
the witnesses were competent to testify". Stincer, 482 U.S. 747,
107 S.Ct. 2668. That is, relying on the same reasons the Alaska
Supreme Court gave for finding violations of Criminal Rule 38(a)
to be harmless, the United States Supreme Court declared that the
Federal Constitution had not been violated at all. From this, we
conclude that the right of presence granted by Alaska's Criminal
Rule 38(a) is broader than the right arising from the federal
constitutional guarantees of confrontation and due process.
We need not decide whether Criminal Rule 38(a) is co-
extensive with or broader than the Alaska Constitution's
guarantees of confrontation and due process, because we conclude
that Rule 38(a) was violated by the superior court's decision to
conduct Henry's sentencing telephonically.7
Even though no evidence was presented at Henry's
sentencing, Henry exercised his right of allocution (protesting
his innocence of the charges against him). Because of Judge
Hopwood's ruling, Henry was forced to communicate telephonically
with the judge who, a few moments later, was to sentence him.
The supreme court has emphasized the importance of in-
person allocution by a criminal defendant at sentencing. In
Nattrass v. State, 554 P.2d 399, 402 (Alaska 1976), the court
pointed out that "[t]he most persuasive counsel may not be able
to speak for a defendant as the defendant might, with halting
eloquence, speak for himself." (quoting Green v. United States,
365 U.S. 301, 304; 81 S.Ct. 653, 655; 5 L.Ed.2d 670, 673 (1961)).
Later, in Mohn v. State, 584 P.2d 40, 44 (Alaska 1978), the court
reiterated "the importance of giving a defendant the opportunity
to personally make a statement to the sentencing court". The
court continued:
[T]here is no substitute for the impact on
sentencing which a defendant's own words
might have if he chooses to make a statement.
While it is true that the presentence report
... contained a number of statements made by
Mohn to the probation officer and others, we
do not think that a written statement can
adequately take the place of a verbal one
made in the presence of the court.
Mohn, 584 P.2d at 44-45.
This court, too, has recognized the importance of a
defendant's personal presence at sentencing -- the importance of
in-person allocution and the psychological difference of having
the sentencing judge and the defendant address each other face-to-
face. In Tookak v. State, 680 P.2d 509 (Alaska App. 1984), this
court quoted with approval the following passage from the
Comment, Due Process at Sentencing: Implementing the Rule of
United States v. Tucker, 125 U.Pa.L.Rev. 1111, 1128-29 (1977):
[The procedural safeguards at sentencing
include] the right of the defendant to be
present ... and the defendant's right to make
a statement on his own behalf[.] ... [I]t
may be advantageous to the defendant if the
judge faces him while meting out punishment.
Tookak, 680 P.2d at 511.
Criminal Rule 38.1 gives a judge general discretion to
conduct proceedings telephonically, but it does not purport to
give a judge the authority to preside telephonically under any
and all circumstances. Given the importance of face-to-face
contact between a defendant and a sentencing judge, and given the
fact that Criminal Rule 38(a) guarantees a defendant's personal
presence in front of the sentencing judge when sentence is pro
nounced, we conclude that Judge Hopwood exceeded the range of
discretion conferred by Criminal Rule 38.1 when he conducted the
sentencing hearing telephonically without Henry's consent.8
We therefore vacate Henry's sentencing and require that
he be resentenced. In view of our resolution of this issue, we
need not address Henry's other sentencing contentions.
Henry's convictions are AFFIRMED, but his sentence is
VACATED. The superior court shall conduct a new sentencing in
accordance with the requirements of Criminal Rule 38(a) as
interpreted in this opinion.
_______________________________
1 In apparent contradiction to Dr. Bellinger's testimony,
both Officer Bowers and Trooper Belden testified that Dr.
Bellinger had told them that, based on his examination, he had
concluded that S.S. had been penetrated. The State did not
directly attempt to impeach Dr. Bellinger's trial testimony with
these possibly inconsistent prior statements.
2 On cross-examination, Trooper DeHart testified that he
told J.S., "The reason [I was asked to interview you is that
another trooper] told me that [Henry], while [your] mom was gone
fishing, had molested your younger sister. Now is that ...
right? Can you answer me, yes or no?", and J.S. said, "Yes."
However, DeHart conducted the second part of the interview.
Investigator Decker conducted the first part of the interview,
and it was during this first portion of the interview that J.S.
told the troopers that Henry had touched her "private part"
through her clothes. It thus appears, although the matter is not
entirely clear, that J.S. accused Henry of sexual abuse before
the troopers told her that S.S. had made the same accusation.
When J.S. was cross-examined at Henry's trial, she gave the
following testimony:
DEFENSE COUNSEL: You talked to your mom about what
[S.S.] said had happened, or what you thought had hap
pened, right?
J.S.: Yes.
DEFENSE COUNSEL: Okay. So when you went [into the
interview], at [that] time you thought maybe [Henry]
had done something bad to your little sister ... ,
right?
J.S.: Yes.
However, J.S. also gave this testimony when she was recalled to
the stand during the defense case:
DEFENSE COUNSEL: Did you think [Henry] had done
something bad to [S.S.] at [the time of your
interview]?
J.S.: No.
DEFENSE COUNSEL: You didn't think he had done
something bad to [S.S.]?
J.S.: No.
. . .
PROSECUTOR: Okay, pretend you're back there right
now, and let's say that I'm the lady trooper [Decker],
and I'm going to ask you some questions. Now, when you
were back there with that lady, did you believe [Henry
had] hurt your sister?
J.S.: (Inaudible)
PROSECUTOR: You didn't believe he [had] hurt your
sister. Who have you been talking to these last couple
of days, [J.S.]?
J.S.: No one.
3 We note that this exchange between prosecutor and trooper
investigator was not prompted by a defense attack on the motives
of these officials or an assertion that, in cases involving
sexual abuse of children, they were generally disinclined to look
for or believe exculpatory evidence -- circumstances that might
have justified this type of examination.
4 During closing argument, Henry's attorney explicitly
argued that all the officials had assumed from the beginning that
Henry was guilty, and that, despite later exculpatory evidence,
no one was willing to question this assumption:
DEFENSE ATTORNEY: And, again,
we're not saying [that] any of these people
... who got involved -- we're not saying
[that] Trooper Masters is a bad man with bad
motives. We're not saying [that] Trooper
Belden is a bad man with bad motives. We're
not saying [that] Ron Bowers is a bad man
with bad motives -- although that may be
questionable. We're saying that, when people
get involved in a situation that's charged
with emotion like this, they get caught up in
it. They get caught up in believing it be
cause [their] instinct is, "Oh, my God! What
has happened? We've got to protect these
little children."
But their jobs are also to find the
truth, not to assume he's guilty and work
from there. And that was not done in this
case.
. . .
We're saying that, from the get-go,
everyone -- including Ron Bowers, who is the
first official person involved here -- wants
to believe the story, because [their]
instinct is to protect this child. No one
ever says, "Maybe he's not [guilty], maybe
he's not. Let's find out more." ...
Everyone involved in this case has made
mistakes. Everyone. ... Everyone has made
mistakes, to turn this into a nightmare.
5 Criminal Rule 38.1(a) recognizes that a defendant may
waive the right of personal appearance and agree to participate
by telephone: "In any proceeding at which the defendant's
presence is required under Criminal Rule 38(a), as modified by
Rule 38.2, the defendant may waive the right to be present and
request to participate by ... telephone."
6 This court has previously held that a defendant's
physical presence is not invariably required at later proceedings
that might affect the initial sentence -- e.g., reduction of the
sentence after a successful sentence appeal, or a hearing on a
motion to modify the sentence under Criminal Rule 35(b). Fowler
v. State, 766 P.2d 588, 589 n.1 (Alaska App. 1988); Tookak v.
State, 680 P.2d 509, 511 (Alaska App. 1984); accord State ex
rel. Everett v. Hamilton, 337 S.E.2d 312 (W. Va. 1985). And
compare Rivett v. State, 395 P.2d 264, 269-270 (Alaska 1964),
holding that, at least when there is "no ... substantial issue of
fact[] concerning events in which [the defendant] participated",
a defendant need not be personally present at the hearing on a
motion to withdraw a guilty plea.
7 We recognize that, in State v. Hannagan, the Alaska
Supreme Court spoke of the constitutional underpinnings of
Criminal Rule 38(a) when the court ruled that trial judges are
required to obtain a defendant's personal and express waiver of
Rule 38(a) before conducting proceedings in the defendant's
absence. Moreover, the court applied a "harmless beyond a
reasonable doubt" standard when deciding whether a violation of
Rule 38(a) required reversal of a conviction. Hannagan, 559 P.2d
at 1064-65.
However, despite Hannagan's indications that Rule 38(a)
might be no more than a reiteration of the defendant's state
constitutional right to be present, the supreme court's later
decision in Dolchok v. State, 639 P.2d 277 (Alaska 1982),
clarified that Rule 38(a) was separate from and potentially
broader in scope than the related constitutional protections of
confrontation and due process. In Dolchok, the supreme court
stated that it had decided to employ the "harmless beyond a
reasonable doubt" standard of error to violations of Criminal
Rule 38(a) because "Rule 38 protects a right of _constitutional
dimension›." The court declared, however, that the decision to
apply this stricter standard of reversible error was a matter of
judicial policy, not a mandate of constitutional law: "We do not
mean to decide that Dolchok's absence from the in-chambers
conference rose to the level of a constitutional violation."
Dolchok, 639 P.2d at 285-86 n.19.
8 But see footnote 6 above.
