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THE COURT OF APPEALS OF THE STATE OF ALASKA
GEORGE F. GOTTSCHALK, JR., )
) Court of Appeals No. A-4863
Appellant, ) Trial Court No. 3AN-S92-5315CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
) [No. 1373 - October 7, 1994]
Appellee. )
______________________________)
Appeal from the Superior Court, Third
Judicial District, Anchorage, Peter A.
Michalski, Judge.
Appearances: Christine S. Schleuss, Schleuss
& McComas, Anchorage, for Appellant. John A.
Scukanec, Assistant Attorney General, Office
of Special Prosecutions and Appeals,
Anchorage, and Bruce M. Botelho, Acting
Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
George F. Gottschalk, Jr., was convicted by a jury in
Naknek of first-degree assault. Gottschalk appeals, contending
that Superior Court Judge Peter A. Michalski erred in excluding
evidence of the victim's violent character. We reverse.
FACTS
A. The Stabbing
Early in the morning on June 12, 1992, at Gottschalk's
home in Naknek, Gottschalk stabbed his twenty-two-year-old son
Clayton in the neck and seriously wounded him. James Woods, Jr.,
a friend of Gottschalk and Clayton, was present at the time of
the incident. Immediately after being stabbed, Clayton, bleeding
profusely, ran to the nearby house of Laurie Anderson, yelling
that he had been stabbed and needed a ride to the clinic. While
waiting for help to arrive, Clayton told Anderson, "I want George
Gottschalk, Jr., brought up on attempted murder charges."
As Clayton sought help from Anderson, Woods ran to the
home of another neighbor, Dawn Johnson, screaming, "Call 911,
call 911, George [Gottschalk] stabbed Clayton in the neck."
Woods told Johnson that
him, Clayton, and George were . . . drinking
together and then George went to bed in his
room, and him and Clayton passed out on the
floor. He said he was awoken by George
coming down the hall screaming, "Clayton, you
son of a bitch, you son of a bitch." He said
he was still half out of it, so he was kind
of opening his eyes and shutting them, and in
and out. And he said then the next time when
he opened his eyes, George was leaning over
Clayton. And as he said to himself, "He's
not going to do that," George cut Clayton's
neck.
B. The State's Case at Trial
The state subsequently charged Gottschalk with first-
degree assault, in violation of AS 11.41.200(a)(1),1 for
recklessly causing serious physical injury to Clayton by means of
a dangerous instrument. Based on Clayton's and Woods' post-
stabbing statements, the state asserted that Gottschalk had
become angry at Clayton and had stabbed him without provocation.
By the time Gottschalk's case was tried, however, both Clayton
and Woods had become reluctant witnesses.
At trial, Clayton testified that he and his father had
been arguing intermittently during the night of the incident and
the preceding day. Shortly after midnight, while he, Woods and
Gottschalk were drinking at Gottschalk's house, the argument
started anew, and Gottschalk told him to leave. Clayton left and
spent the next several hours at a friend's house, where he "[h]ad
a couple more shot[s]." At about 5:00 a.m., he returned to
Gottschalk's house, walked in, and sat down in a chair.
According to Clayton, Gottschalk, still angry, again
asked him to leave. An argument ensued. Gottschalk went to the
kitchen; Clayton could hear Gottschalk "fumbling around" in the
knife drawer, so Clayton decided to leave. He bent over to put
his shoes on; as he began to stand up, Clayton suddenly felt
"warm blood . . . [c]oming out of [his] neck." Clayton testified
that he then "jumped up and . . . said you stabbed me, you
stabbed me, and . . . ran out the door." To the apparent
surprise of the trial prosecutor, Clayton added:
I didn't even know if he even tried to stab
me, you know. . . . I was getting up out of
the chair. You know, he . . . might have
just came over there to show me the way out.
I don't know. Because I was getting up like
this. And I got up.
. . . .
I don't know. Because I wasn't looking at
him. I didn't see him thrust it at me or
anything like that.
For his part, Woods testified that on the night of the
incident he had been drinking "[a]ll over" and "passed out"
shortly after he arrived at Gottschalk's. He awoke to the sound
of Gottschalk getting up in the morning and a short time later
saw Gottschalk leaning over Clayton, who slept; Gottschalk held a
knife to Clayton's neck. Then, according to Woods, "Clayton got
up I guess and bumped into the knife or something because George
was over him like that. . . . You know, must have got scared and
jumped or something." Woods added, "He got poked. He never got
stabbed."
The prosecution impeached Clayton and Woods by
introducing various prior inconsistent statements they had made,
including the statements they made to Laurie Anderson and Dawn
Johnson shortly after the stabbing.
C. Gottschalk's Testimony
Gottschalk's defense at trial combined elements of self-
defense and accident. Gottschalk testified that he ordered
Clayton out of his house because Clayton had been drinking, had
become belligerent, and had assaulted him. Clayton refused to
leave. Fearing a further assault, Gottschalk armed himself with
a knife from the kitchen. Gottschalk returned to the living
room, repeated his request for Clayton to leave, "[a]nd I was
telling him that I wanted him to please leave. . . . And . . . he
said, fuck you, old man, and he jumped right out of the chair and
he came right after me. And . . . I guess that's when he got
hurt on the -- got the cut on his neck." On cross-examination,
Gottschalk insisted that he had picked up the knife as a
"deterrent" because he "didn't want to get kicked around again,"
but that he "never intended to use it."
D. The Excluded Character Evidence
To support his claim of self-defense and to establish
that Clayton had been the initial aggressor in the incident,
Gottschalk attempted to testify and to present testimony from
four witnesses concerning Clayton's character for violence.
Gottschalk himself proposed to testify about two
instances (one in 1991, the other in 1992) in which he posted
bail for Clayton after Clayton had been arrested for what
Gottschalk believed were assaultive crimes. Gottschalk also
offered to describe a recent incident in which he took Clayton to
the clinic for treatment of a severe slash on his leg that
Gottschalk thought Clayton had sustained in an alcohol-related
confrontation. Clayton fled the clinic and resisted treatment.2
Judge Michalski excluded this evidence, saying: "The
conduct involved there is not conduct that involves the use of
deadly force that would make it appropriate to use deadly force
in return. And therefore it's not relevant."
Through cross-examination of Dawn Johnson, Gottschalk
offered to present evidence of an incident occurring three years
previously in which Clayton, while drinking in a restaurant,
pulled a whiskey bottle from his coveralls and threatened a
restaurant employee with it. The incident resulted in Clayton's
forcible removal from the restaurant.
Judge Michalski excluded this evidence, finding that it
was irrelevant to show Gottschalk's fear of Clayton because
Gottschalk had not been aware of it and that it was too remote
and "de minimis" to show violent character.
Through Ralph Mancuso, Gottschalk's brother-in-law,
Gottschalk sought to present reputation and opinion evidence
concerning Clayton's violent character and his tendency to become
aggressive when intoxicated. Mancuso proposed to testify that
Clayton had a reputation for being "violent when he gets drunk."
In addition, Mancuso would have testified that he had personal
knowledge of Clayton's proclivity for violence and untrustworthi-
ness when drunk. As an example, he described an incident in
August of 1991 when Clayton appeared at his house "obviously
intoxicated" and "started ranting and raving and calling me all
kinds of names." Mancuso refused to allow Clayton inside the
house; Clayton refused to leave until Mancuso called the police,
then told Clayton.
Judge Michalski concluded that, as reputation and
opinion evidence, Mancuso's proposed testimony did not go to "a
trait specific to . . . the defense to the crime charged," and
that, essentially, it tended to show only that "someone when
they're drunk out of their mind, . . . is that way, . . . they're
drunk out of their mind."
Gottschalk offered his sister, Glenda Williams, in
whose home Clayton had lived "[o]ff and on" since he was
eighteen, to state her opinion of Clayton and her knowledge of
his reputation for being "totally a different person when he's
intoxicated" with "a mean streak, a violent streak." She
testified that she heard about Clayton's violent behavior from
bartenders and others in the community, and explained that "my
sons and him they just kind of like split apart because of the
fact that when [Clayton] was drinking, that he would be too
violent." Williams also described an incident that she had seen
from a neighbor's window three years earlier: Clayton had held up
a baseball bat and a two-by-four while arguing with Gottschalk.
Williams admitted that she had not heard the conversation between
Gottschalk and Clayton and did not know if Clayton was drunk at
the time. Judge Michalski ruled Williams' opinion and reputation
testimony inadmissible because "the testimony only goes to show
that when he's drunk, he acts like he's drunk." The judge
precluded Williams from testifying about the baseball bat
incident because it was remote and evidently unconnected with
intoxication.
Finally, Gottschalk sought to call Abe Williams --
Glenda Williams' twenty-one-year-old son and a longtime
acquaintance of Clayton who had many friends in common with him -
- to express his opinion that Clayton "fights with whatever he
can fight with," becomes "uncontrollably violent" when drinking,
and that "[a] lot of people talk about it[.]" Abe Williams
offered to testify that "in one of his violent stages [Clayton]
doesn't like to lose. He'll keep coming back for more, and more,
and more." Williams further indicated that Clayton provoked a
fight with him at his eighteenth birthday party, that they fought
and then stopped, but that Clayton returned later to initiate a
second fight. Williams acknowledged, however, that he had never
known Clayton to use weapons during the fights.
Judge Michalski excluded Abe Williams' proposed
testimony as irrelevant. Finding the relevant character trait in
the case to be whether Clayton "has a reputation for, or is known
for, or uses deadly force," the judge concluded that "[t]here's
no evidence to that effect in the testimony of Abe Williams."
The trial court did allow Gottschalk to describe two
prior violent confrontations with Clayton. Gottschalk testified
that during the last week of May 1992, Clayton became drunk,
blamed Gottschalk for an unsuccessful fishing expedition,
"flipped" Gottschalk over and kicked him in the ribs, breaking
them. The following week, Gottschalk testified, Clayton again
became argumentative while he was with Gottschalk at a friend's
house. Gottschalk "ended up on the ground again . . . and got
roughed up pretty bad[.]" Clayton then left, and Gottschalk
decided to stay overnight at his friend's house. According to
Gottschalk, however, Clayton later returned and started jumping
on him while he was asleep in bed. Gottschalk testified that
other occupants in the house quickly "got [Clayton] out of the
house."
DISCUSSION
The jury convicted Gottschalk as charged. On appeal,
Gottschalk contends that the superior court erred in excluding
the proffered evidence of Clayton's violent character.
A. Applicable Law and Standard of Review
Alaska Rule of Evidence 404(a)(2) allows the accused in
a criminal prosecution to offer "[e]vidence of a relevant trait
of character of a victim of crime[.]"3 Under A.R.E. 405(a), the
character of a person must ordinarily be proved by opinion or
reputation evidence; under A.R.E. 405(b), however, the accused
may offer evidence of specific instances of the victim's conduct
when a "trait of character of [the victim] is an essential
element of a . . . defense[.]"4
It is well settled that, in an assault case involving a
claim of self-defense, these rules allow the accused to prove the
violent character of the victim. The Alaska Supreme Court has
indicated that the proof may be made by evidence of reputation,
opinion, or specific instances of violent conduct. See Loesche
v. State, 620 P.2d 646 (Alaska 1980); Byrd v. State, 626 P.2d
1057 (Alaska 1980); Keith v. State, 612 P.2d 977 (Alaska 1980).
Compare 2 Wigmore, Evidence 248 (Chadbourn rev. 1979) (favoring
admission of specific instances of the victim's violent behavior
which are known to the defendant) with 1A id., 63-63.1
(Tillers rev. 1983) (specific instances of the victim's violent
behavior which are unknown to the defendant are generally not
admissible).
Once the accused fairly puts self-defense in issue, the
trial court may admit such evidence to show: "(1) who was the
aggressor, in which case defendant's knowledge of the incident is
immaterial; and (2) that defendant acted reasonably in using the
degree of force he did, in which case defendant must know of the
victim's past acts of violence." Amarok v. State, 671 P.2d 882,
883-84 (Alaska App. 1983) (citing Loesche, 620 P.2d at 650-51).
The decision to admit evidence concerning the victim's character
for violence is within the discretion of the trial court.
Loesche, 620 P.2d at 651; Amarok, 671 P.2d at 884. The trial
court's evidentiary rulings will not be disturbed on appeal in
the absence of an abuse of discretion. Hawley v. State, 614 P.2d
1349, 1361 (Alaska 1980); Bodine v. State, 737 P.2d 1072, 1073-74
(Alaska App. 1987).
B. Irrelevance of Character
Evidence to Accident as a Basis for
Exclusion
The state initially argues that exclusion of the
disputed character evidence was justified because the actual
theory of defense Gottschalk relied on was accident, not self-
defense. The state cites Byrd for the proposition that evidence
of a victim's violent nature is irrelevant to support a claim of
accident. But the state's reliance on Byrd is misguided.
Byrd involved a combined claim of self-defense and
accident: Byrd drew his gun in anticipation of an assault by his
victim; Byrd's victim approached and reached for the gun; the gun
discharged. Byrd, 626 P.2d at 1058. Byrd's defense theory was
that he "either fired the gun in self-defense because of the
apprehended danger . . . or that the shooting was accidental."
Id. In reviewing these factual circumstances, the supreme court,
while noting in passing that evidence of the victim's violent
character had no bearing on Byrd's claim of accident, concluded
that this evidence would have been relevant to his claim of self-
defense. Id.
The present case, like Byrd, involved a combined claim
of self-defense and accident: Gottschalk testified that he armed
himself with a knife in fear of an attack by Clayton; when
Clayton did attack, Gottschalk's reflexive reaction resulted in
Clayton's injury. There is nothing logically inconsistent or
legally incongruent in the combined self-defense/accident theory
that Gottschalk relied on for his defense. Far from being
mutually inconsistent or contradictory, Gottschalk's claims of
self-defense and accident were integral and necessary components
of his defense. Because Gottschalk was charged with first-degree
assault for recklessly injuring Clayton, his claim of accident
might have been insufficient had it not been accompanied by the
claim of self- defense. Without the claim of self-defense, the
jury could easily have accepted Gottschalk's claim that the
actual stabbing was inadvertent, while nonetheless concluding
that he was guilty because he had acted recklessly in arming
himself in the first place.
In short, nothing about Gottschalk's claim of accident
made it less vital for him to convince the jury that Clayton was
the initial aggressor and that Gottschalk's decision to arm
himself with a knife and his open display of the knife
immediately prior to the stabbing were justified by his
reasonable fear of danger from Clayton. And nothing in Byrd
suggests that, under these circumstances, character evidence
tending to show Clayton's violent propensities was irrelevant to
Gottschalk's claim of self-defense.5
C. Abuse of Discretion
The state also argues that, even if Gottschalk's claim
of accident did not render the issue of Clayton's character
irrelevant, the trial court did not abuse its discretion in
excluding the disputed character evidence. We disagree. Here,
Clayton's status as the initial aggressor and Gottschalk's
apprehension of fear from Clayton were both hotly disputed
issues. The state vigorously sought to establish that Clayton
had been entirely passive before the stabbing and that Gottschalk
had no reason to fear him whatsoever. Cf. Byrd, 626 P.2d at 1058-
59 (exclusion of victim's prior assault conviction harmless when
victim's status as initial aggressor was undisputed and accused's
unawareness of prior conviction precluded any possibility that it
enhanced accused's fear). Furthermore, the proffered character
evidence was not cumulative. Cf. Loesche, 620 P.2d at 651; see
also Norris, 857 P.2d at 352. Although Gottschalk was allowed to
describe two prior confrontations between himself and Clayton,
the jury may well have discounted Gottschalk's description as
self- serving, particularly because Clayton's testimony
concerning the prior confrontations minimized them and suggested
that Clayton had acted in self-defense when he injured
Gottschalk's ribs.6
The trial court has considerable discretion to weigh
the probative value of character evidence against its prejudicial
potential, to regulate the amount of character evidence received,
and to determine the form in which it should be admitted. In the
present case, a good deal of the disputed evidence concerning
specific instances of Clayton's misconduct -- particularly the
incidents of which Gottschalk was unaware -- could properly have
been excluded as too remote or as inadequately related to the two
issues for which they were ostensibly offered: whether Clayton
likely was the first aggressor and whether Gottschalk could
reasonably have feared for his safety, given what he knew about
Clayton's violent temperament. However, the trial court's
decision to exclude all of the proffered character evidence,
particularly the strong opinion and reputation testimony,
amounted to a clear abuse of discretion.
Clayton's lack of reputation for using weapons or
engaging in deadly violence, while perhaps relevant to the weight
of the character testimony, is not determinative of its
admissibility. The chief probative force of this evidence was to
establish the likelihood that Clayton was the first aggressor,
not the likelihood of his using deadly force. Neither is it
determinative that witnesses like Mancuso could not remember the
exact sources for their knowledge of Clayton's reputation. The
traditional view is that, to be admissible, evidence of
reputation must be "broadly general rather than that of a
particular group[.]" See A.R.E. 405(a) Commentary at 456 (1994)
(quoting Mason Ladd, Techniques and Theory of Character
Testimony, 24 Iowa L. Rev. 498, 513 (1939)).
Moreover, we are aware of no basis for the trial
court's belief that the proffered evidence of Clayton's violent
character when intoxicated -- such as Abe Williams' proposed
testimony that Clayton becomes "uncontrollably violent" when
drinking and that, "in one of his violent stages he doesn't like
to lose. He'll keep coming back for more, and more, and more" --
would have shown nothing more than Clayton's tendency to act like
a drunk when he became intoxicated. For some individuals,
intoxication may invariably trigger violent aggression, but for
many it does not. Certainly the jury might have found it useful
to hear evidence indicating that Clayton fell into the former
category, not the latter.
Finally, we find no realistic indication that this
character evidence would have been particularly prejudicial: this
was not the type of evidence that would typically risk arousing
deep-seated hostility among jurors; it would seemingly not have
been time-consuming; and, in context, it would apparently have
posed little danger of distraction. See Keith, 612 P.2d at 983-
84 (listing these factors as the common components of prejudice
warranting exclusion of character evidence).
Our review of the record convinces us that the trial
court erred in excluding the disputed character evidence in its
totality. Given the substantial quantities of alcohol admittedly
consumed by both Clayton and Woods on the night of the alleged
assault, their numerous inconsistent statements describing the
incident, and the potentially powerful effect of the excluded
character evidence, we are further convinced of the strong
likelihood that this error appreciably affected the jury's
verdict. Love v. State, 457 P.2d 622, 632 (Alaska 1969).
CONCLUSION
We therefore conclude that Gottschalk's conviction must
be reversed.
The conviction is REVERSED.
_______________________________
1. At the time of this offense, AS 11.41.200(a)(1)
provided:
Assault in the first degree. (a) A
person commits the crime of assault in the
first degree if
(1) that person recklessly causes
serious physical injury to another by means
of a dangerous instrument[.]
2. Although it was eventually established that Clayton's
leg injury actually resulted from a snowmachine or "three-
wheeler" accident, Gottschalk claimed he was unaware of the cause
at the time of Clayton's stabbing.
3. A.R.E. 404(a)(2) reads:
(a) Character Evidence Generally.
Evidence of a person's character or a trait
of character is not admissible for the
purpose of proving that he acted in
conformity therewith on a particular
occasion, except:
. . . .
(2) Character of Victim. Evidence of a
relevant trait of character of a victim of
crime offered by an accused, or by the
prosecution to rebut the same, or evidence of
a character trait of peacefulness of the
victim offered by the prosecution in a
homicide case to rebut evidence that the
victim was the first aggressor[.]
4. A.R.E. 405 reads:
Methods of Proving Character.
(a) Reputation or Opinion. In all cases
in which evidence of character or a trait of
character of a person is admissible, proof
may be made by testimony as to reputation in
any community or group in which the
individual habitually associated or by
testimony in the form of an opinion. On
cross-examination, inquiry is allowable into
relevant specific instances of conduct.
(b) Specific Instances of Conduct. In
cases in which character or a trait of
character of a person is an essential element
of a charge, claim, or defense, proof may
also be made of specific instances of his
conduct.
5. The state's further reliance on Norris v. State, 857
P.2d 349 (Alaska App. 1993), is equally misguided. Norris was
charged with murder for the shooting death of his female
companion. Although Norris had arguably armed himself with a
rifle because he feared that his victim would assault him, the
undisputed evidence at trial established that he thereafter
assaulted his victim. He smashed her in the face with the rifle,
knocked her to the floor, and pointed the gun at her head as he
straddled her. Id. at 352. Norris claimed that the rifle
accidentally discharged when his victim reached for the barrel.
Norris did not maintain that he feared his victim at the time of
the shooting. He sought to introduce evidence of the victim's
prior violent acts, not to pursue a claim of self-defense, but to
support his theory of accident. Indeed, on appeal, Norris
implicitly conceded that he presented no evidence of self-
defense. Id. In rejecting Norris' argument that the disputed
character evidence had improperly been excluded, we concluded
that, "[g]iven [the] progress of events" after Norris armed
himself, "the reasonableness of [his] initial decision to pick up
the rifle had essentially no bearing on [his] guilt," because
that decision "would not affect the reasonableness of Norris's
act of threatening an unarmed and helpless person with a loaded
firearm when he feared no immediate danger from her." Id. In
the present case, under Gottschalk's version of events, there was
no "progress of events" dispelling his fear of Clayton; to the
contrary, Gottschalk's testimony indicated that Clayton's conduct
confirmed the fear that originally led Gottschalk to arm himself
with the knife.
6. In fact, in the state's closing argument to the jury,
the prosecutor argued that the prior conflicts between Gottschalk
and Clayton were trivial; the prosecutor went on to argue that
"in this case there's a distinct zero. There's a distinct
absence of any evidence involved in the relationship with George
Gottschalk and Clayton Gottschalk that would require him to use
deadly force to protect himself."
