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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
RUSSELL G. JOHNSON and )
JOHN J. JOHNSON, )
) Court of Appeals Nos. A-4879/4914
Appellants, ) Trial Court Nos. 3AN-S92-6498/97CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1390 - February 17, 1995]
________________________________)
Appeal from the Superior Court, Third
Judicial District, Anchorage, Rene J.
Gonzalez, Judge.
Appearances: Thomas A. Ballantine III,
Anchorage, for Appellant Russell G. Johnson.
Linda K. Wilson, Assistant Public Defender,
and John B. Salemi, Public Defender,
Anchorage, for Appellant John J. Johnson.
William H. Hawley, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
Russell G. Johnson and his brother John J. Johnson were
indicted for kidnapping, sexual assault in the first degree,
sexual assault in the second degree, and assault in the third
degree. AS 11.41.300(a)(1)(C); AS 11.41.410(a)(1); AS
11.41.420(a)(1); AS 11.41.220(a)(1). A jury convicted both
brothers of kidnapping and John Johnson of first-degree sexual
assault.1 Superior Court Judge Rene J. Gonzalez sentenced John
Johnson to a composite term of ten years' imprisonment. Judge
Gonzalez sentenced Russell Johnson to eight years with three
years suspended.
In this consolidated appeal, the Johnsons challenge
their convictions, arguing that the trial court erred in
restricting their cross-examination of L.K., the victim,
concerning two past reports of sexual assault and concerning her
current involvement in a physically abusive relationship with
another man. The Johnsons further argue that the court erred in
excluding evidence of a false claim of paternity that L.K. had
previously filed. Russell Johnson individually contends that the
trial court erred in refusing him discovery of a presentence
report dealing with an offense previously committed by L.K. John
Johnson separately claims that his sentence is excessive. We
affirm as to John Johnson and remand for further proceedings as
to Russell Johnson.
On the night of August 21-22, 1992, L.K. left a bar in
downtown Anchorage and began to walk home, hitchhiking as she
went. John and Russell Johnson stopped to offer her a ride.
Later that night L.K. reported that she had been raped. L.K.
claimed that, instead of driving her home, the Johnsons abducted
her at gunpoint, drove her to a remote location, and raped her.
According to L.K., she escaped her abductors after the assault
and ran to a nearby house, where she reported the crime.
John Johnson's subsequent trial testimony differed from
L.K.'s version of events. According to John, when he and Russell
stopped to offer L.K. a ride, L.K. got into their truck
willingly, later asked to go with them to a party, and eventually
had consensual sexual intercourse with him; John claimed that
Russell had no sexual contact with L.K. Russell, who did not
testify, relied on the version of events presented by his
brother.
Prior to trial, the state moved for a protective order
to prevent the Johnsons from questioning L.K. about two sexual
assaults that she had reported more than thirteen years
previously, in January of 1979. The state argued that inquiry
into the prior reports was barred by Alaska's rape shield
statute, AS 12.45.045, and was inadmissible under Alaska Rule of
Evidence 404(a)(2).
In response, the Johnsons argued that both of L.K.'s
1979 reports of sexual assault were similar to her current report
and were thus relevant to L.K.'s credibility. The Johnsons
theorized that the similarity of all three reports and the fact
that the two 1979 reports had never been substantiated or
prosecuted -- due in part to a lack of cooperation on L.K.'s part
-- tended to establish L.K.'s involvement in a pattern of false
reports of sexual assault. The Johnsons insisted that, to enable
them to establish the relevance of this line of inquiry, the
court should at the very least allow them to call L.K. outside
the presence of the jury for questioning about the truthfulness
of her 1979 reports.
Judge Gonzalez granted the state's motion for a
protective order and declined to allow the Johnsons the
opportunity to question L.K. about the 1979 reports. The judge
concluded that the 1979 reports did not establish a pattern of
false reports on L.K.'s part and that they were otherwise
irrelevant to the issues of L.K.'s bias, prejudice, or motive to
testify falsely. The Johnsons argue on appeal that Judge
Gonzalez erred in precluding them from questioning L.K. In the
Johnsons' view, the error deprived them of their constitutional
rights to confrontation, compulsory process, and due process.
We find no merit to this claim. Although this court
has previously suggested that evidence of past false reports of
sexual assault may under some circumstances be admissible to
discredit an alleged victim's current claims of sexual assault,
see, e.g., Jager v. State, 748 P.2d 1172, 1177 n.3 (Alaska App.
1988), we have consistently held that the proponent of such
evidence bears the threshold burden of establishing the falsity
of the past reports. See Covington v. State, 703 P.2d 436, 442
(Alaska App. 1985), modified on other grounds on reh'g, 711 P.2d
1183 (Alaska App. 1985); see also Daniels v. State, 767 P.2d
1163, 1167 n.3 (Alaska App. 1989).
Here, the Johnsons failed to meet this burden. Neither
alone nor in conjunction with the current accusation do the 1979
reports give rise to a fair inference that L.K. has engaged in a
pattern of false reports of sexual assault. Nor have the
Johnsons cited any persuasive authority for their claim that L.K.
should have been compelled to answer questions in camera about
the past reports when no colorable grounds had been presented to
establish that the reports were false. In our view, the off
chance of discovering falsehood did not vest the Johnsons with
the right to demand that L.K. testify in camera.
In arguing that they should at least have been given
the opportunity to explore in camera the truthfulness of L.K.'s
past reports, the Johnsons rely on the commentary to A.R.E. 404.
Rule 404(a)(2)(ii) requires that the admissibility of evidence
reflecting on a sexual assault victim's character be determined
by a hearing conducted outside the presence of the jury; the rule
goes on to provide that "[t]he hearing may be conducted in camera
where there is a danger of unwarranted invasion of the privacy of
the victim." In addressing this provision, the commentary
recommends that "[e]xamination and cross-examination of witnesses
should be permitted" during such in camera hearings. Alaska
Rules of Evidence Rule 404(a) commentary at 454 (West 1994).
The Johnsons emphasize this recommendation. Yet the
commentary expressly qualifies its recommendation by adding that
witnesses should be examined in camera only "when necessary." Id.
To say that cross-examination should be permitted when necessary
to allow the defendant to make a record is not the same as to say
that cross-examination should be permitted whenever the defendant
wishes to search for discoverable information. By advising trial
courts to allow in camera examination of witnesses "when neces
sary," the commentary makes it reasonably clear that its drafters
did not view cross-examination within the context of an in camera
hearing as a discovery device -- that the drafters did not mean
to give the defense the right to an on-demand deposition of the
complaining witness.
For purposes of determining when in camera examination
of a sexual assault victim should be deemed "necessary," it is
useful to consider the commentary's approach on the ultimate
issue of admission of evidence relating to the character of a
sexual assault victim. The commentary adopts a "reasonable
probability" standard to govern the issue of admissibility:
If there is a reasonable probability
that character evidence might legitimately
help the defense, invasion of the privacy of
the victim is warranted. If the evidence is
of minimal probative value and is not
reasonably likely to assist the defense,
invasion of the privacy of the victim is
unwarranted.
Id.
Although it may be arguable that the type of showing
that would suffice to establish necessity for in camera examina
tion of a sexual assault victim should be more lenient than the
"reasonable probability" standard that governs the ultimate issue
of admissibility, the commentary's concern for the privacy of
sexual assault victims and the balancing approach it adopts to
accommodate this privacy interest strongly counsel that, at a
minimum, in camera examination of a sexual assault victim should
be deemed necessary only upon a threshold showing of good cause -
- that is, upon proof of a colorable ground to believe that
character evidence favorable to the defense actually does exist
and will be disclosed by the requested examination. Cf. Pickens
v. State, 675 P.2d 665, 669 (Alaska App. 1984) (requiring a
specific showing of good cause to justify psychiatric evaluation
of sexual assault victim); Alaska Criminal Rule 15(a) (allowing
depositions in criminal cases only "[u]pon order of the court for
good cause shown").
In the present case, the prosecution represented that,
at the time of the Johnsons' trial, L.K. continued to maintain
the truthfulness of her prior claims of sexual abuse. There is
nothing in the record to suggest the likelihood, or even the
possibility, of a recantation. The mere existence of two
generically similar reports of sexual assault made almost
fourteen years before L.K.'s current accusation hardly amounts to
colorable grounds for believing that in camera examination of
L.K. was necessary under A.R.E. 404(a)(2)(ii).
The Johnsons next contend that they were prejudiced by
Judge Gonzalez' refusal to allow them to cross-examine L.K. about
physical abuse inflicted upon her by a man with whom she lived.
At trial, the prosecution sought to corroborate L.K.'s claim of
sexual assault by proving that L.K. had fresh bruises on her
shoulder and thigh when she reported the crime. The Johnsons, in
turn, sought to question L.K. about her abusive relationship with
a man named Ronald Ivanof. They contended that the inquiry was
relevant because Ivanof might have caused L.K.'s bruises. In
addition, they argued that L.K.'s fear of abuse from Ivanof might
have motivated her to fabricate her claim of sexual assault.
Judge Gonzalez allowed limited inquiry into the area.
Defense counsel were allowed to establish that L.K. was involved
in a sexual relationship with Ivanof, that in fact Ivanof was the
father of two of L.K.'s children, that L.K. had left her three
children with Ivanof on the night of the alleged assault, and
that Ivanof had physically abused L.K. at times, both before and
after the date of the alleged assault. Although L.K. initially
denied ever seeking medical treatment following Ivanof's abuse,
the defense was allowed to refresh her recollection with medical
records showing that she received treatment for injuries she had
attributed to him. L.K. also admitted to seeking an emergency
injunction against Ivanof approximately two weeks after the
August 22 incident.
Judge Gonzalez did not allow the Johnsons to prove the
exact duration of L.K.'s abusive relationship with Ivanof. The
judge also precluded them from dwelling on the details of
Ivanof's abusive conduct toward L.K., and refused to allow the
defense to ask L.K. whether she had acted as Ivanof's third-party
custodian on a recent occasion, apparently after Ivanof had been
arrested for abusing her.
The Johnsons argue on appeal that these limitations
prevented them from identifying Ivanof as a potential source of
L.K.'s bruises and from establishing L.K.'s motive to claim
falsely that she had been raped. They contend that their right
of confrontation was thereby violated. See Davis v. Alaska, 415
U.S. 308 (1974). Yet the Johnsons fail to specify how the
restrictions placed on their cross-examination impeded their
ability to get their point across to the jury. The scope of
cross-examination that the trial court actually allowed made
Ivanof's identity as a potential source of L.K.'s injuries
abundantly clear. The jury's awareness of L.K.'s relationship
with Ivanof, and of its abusive character, made obvious L.K.'s
possible motive to concoct her claim of rape in order to prevent
Ivanof from learning that she had had consensual sexual
intercourse with John Johnson. Based on the evidence presented,
counsel were able to argue these points fully to the jury.
Allowing the Johnsons to hammer longer on the details of the
relationship between Ivanof and L.K. certainly would have enabled
them to pound a few extra nails, with much attendant noise, into
a plank they had already securely fixed in place; but it would
have added no new material to the structure of their defense
case.
Limitations on the right to cross-examination amount to
constitutional error when they impair the accused's ability to
establish bias, prejudice, or motive. Davis, 415 U.S. at 316-18.
However, the scope of cross-examination is generally a matter
within the trial court's discretion. Stumpf v. State, 749 P.2d
880, 901 (Alaska App. 1988). An abuse of discretion occurs only
when the jury fails to receive adequate information to allow it
to understand and evaluate fairly a witness' potential bias,
prejudice, or motive. Id. (citing United States v. Ray, 731 F.2d
1361, 1364-65 (9th Cir. 1984)). Applying this standard here, we
find no abuse of discretion.
The Johnsons next argue that Judge Gonzalez erred in
excluding evidence that L.K. had filed a false claim of paternity
in 1985, more than seven years before the current offense. The
Johnsons offered to call Lee Warren Palmer as a defense witness.
Palmer would have testified that he was involved in a romantic
relationship with L.K. from 1981 until 1983 or 1984 and that in
early 1985, after the relationship had ended, L.K. filed a
paternity claim against him. According to Palmer, a blood test
eventually proved that he was not the father, and the case was
dismissed. Palmer claimed that, a short time later, L.K. told
him that she had known he was not the father but had named him
because she had to name someone.
Judge Gonzalez ruled this evidence inadmissible because
the allegation involved in the former case was dissimilar to
L.K.'s current allegation, and because the former allegation was
too remote and "would lead to confusion of the issues that are
before the jury."
Alaska Rule of Evidence 403 states:
Although relevant, evidence may be excluded
if its probative value is outweighed by the danger
of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of
cumulative evidence.
This rule gives the trial court broad discretion to restrict the
admission of relevant evidence if its probative value is
outweighed by unfair prejudice or confusion of the issues. Brown
v. State, 779 P.2d 801, 803-04 (Alaska App. 1989). See, e.g.,
Lerchenstein v. State, 770 P.2d 1150, 1153 (Alaska App. 1989).
When properly applied, Alaska Rule of Evidence 403 does not
violate a defendant's constitutional right to confrontation.
Larson v. State, 656 P.2d 571, 575 (Alaska App. 1982). A trial
judge's ruling on the admissibility of evidence will be reversed
only when a clear abuse of discretion has been shown. Kvasnikoff
v. State, 674 P.2d 302, 304-05 (Alaska App. 1983).
The evidence of L.K.'s previous paternity claim that
was proffered in this case had no logical bearing on L.K.'s bias,
prejudice, or motive to fabricate; given its remoteness in time
and dissimilarity to the circumstances of the current case, it
did not establish a pattern or scheme of falsification on L.K.'s
part. At most, the evidence amounted to character evidence
reflecting negatively on L.K.'s general credibility. As such,
however, the evidence of L.K.'s past misconduct was classic
propensity evidence and was therefore inadmissible. A.R.E.
404(b)(1); A.R.E. 608(b).2 Under A.R.E. 608(a), the Johnsons
were free to ask Palmer to state his opinion of L.K.'s
credibility, or to testify as to L.K.'s reputation for
truthfulness. But they had no right to impeach L.K.'s
credibility by recourse to evidence of specific incidents of past
misconduct. Exclusion of the disputed evidence did not amount to
error. See Latham v. State, 790 P.2d 717, 721-22 (Alaska App.
1990).
Prior to trial, Russell Johnson moved for production
of a presentence report that had been prepared upon L.K.'s
conviction of third-degree assault in 1981. In moving for
production of the report, Russell Johnson argued that it
may contain information affecting L.K.'s
credibility in that there may be other misdemeanor
convictions involving dishonesty or false
statement, other verified police contacts, drug
and alcohol records, psychological or psychiatric
records, or situations where she may have provided
false information to the presentence officer.
In response, the state pointed out that the conviction for which
the presentence report had been prepared was over eleven years
old, and the defense already had been provided with a copy of
L.K.'s criminal history. Judge Gonzalez subsequently issued a
summary written order denying the motion. Russell Johnson claims
that the court erred in its ruling.
Alaska Criminal Rule 16 permits the state to withhold
disclosure of records whose contents are potentially discoverable
only if a two-step procedure has been met: first, the state must
make a threshold showing of good cause to maintain the records'
confidentiality; second, if, but only if, such a showing is made,
the trial judge must review the records in camera and determine
that the material therein is not relevant. Braham v. State, 571
P.2d 631, 643 (Alaska 1977).
In the present case, the first step of this procedure
was obviously met, since disclosure of presentence reports is
expressly restricted by rule. See Alaska Criminal Rule 32(d)(2).
With respect to the second step of the Braham procedure, however,
the record is uncertain. The presentence report itself has never
been made a part of the court record. The state's copy of the
original report was apparently archived in Juneau and not
immediately available to the prosecutor in the Johnsons' case
when the state responded to Russell Johnson's motion for
production. It is unclear from the record whether Judge Gonzalez
reviewed, or even had ready access to, the court system's copy of
the report.
Although the age of the disputed report in this case
makes it highly unlikely that it contains any information that
would be deemed discoverable, it is impossible to say with
certainty that no discoverable information would be found upon in
camera review by the trial court. Accordingly, we think it
necessary to remand this issue to the trial court.3 If the court
has already conducted an in camera review of the presentence
report, it should so indicate on remand; a sealed copy of the
report should then be included in the court record. If the court
has not yet conducted such a review, it should do so and make
appropriate findings.4 We will retain jurisdiction over Russell
Johnson's appeal pending completion of the remand.
We lastly address John Johnson's claim that his
sentence was excessive. John Johnson was convicted of first-
degree sexual assault and kidnapping. First-degree sexual
assault is an unclassified felony punishable by incarceration for
up to thirty years. AS 11.41.410(b); AS 12.55.125(i). As a
first offender, Johnson was subject to a presumptive term of
eight years on the sexual assault charge. AS 12.55.125(i)(1).
Kidnapping is an unclassified felony separately punishable by a
maximum of ninety-nine years' imprisonment and by a minimum of
five. AS 11.41.300- (c); AS 12.55.125(b).
For first-degree sexual assault, Judge Gonzalez
sentenced John Johnson to the presumptive term of eight years.
Because Johnson established no mitigating factors or exceptional
circumstances, the sentencing court could not have imposed a
lesser term. See State v. LaPorte, 672 P.2d 466, 467 (Alaska
App. 1983). The court sentenced Johnson to the minimum term of
five years for his kidnapping and ordered two years of that
sentence to be served consecutively to the eight-year term for
sexual assault, for a composite term of ten years. Thus, for his
commission of the separate unclassified crime of kidnapping,
Johnson in effect received only two years beyond the minimum
composite term the sentencing court was empowered to impose.
Even if, as John Johnson proposes, we view the
kidnapping, not as a separate crime, but merely as a circumstance
aggravating Johnson's sexual assault, Johnson's total term of ten
years hardly seems beyond the zone of reasonableness within which
the sentencing court may properly exercise its discretion.
Having independently reviewed the entire sentencing record, we
conclude that the sentence imposed below was not clearly
mistaken. McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
John J. Johnson's conviction and sentence are AFFIRMED.
As to Russell G. Johnson, this case is REMANDED for further
proceedings.
_______________________________
1. The state dismissed the charges of second-degree
sexual assault against both John and Russell. The jury
deadlocked on the first-degree sexual assault charge against
Russell and on the third-degree assault charges against both John
and Russell.
2. Alaska Rule of Evidence 608(b) allows specific
instances of conduct probative of truthfulness or untruthfulness
to be admitted to attack or support a witness' credibility only
after the witness' general character for truthfulness or
untruthfulness has been placed into issue. See Snyder v. Foote,
822 P.2d 1353, 1359 (Alaska 1991). Here, the state did not
place L.K.'s character for truthfulness into issue.
3. The state appears to argue that information contained
in presentence reports should be categorically barred from the
discovery provisions of Criminal Rule 16. In support of this
argument, the state cites several federal cases barring
disclosure of federal presentence reports except upon a
compelling showing of necessity. See, e.g., United States v.
Charmer Indus., Inc., 711 F.2d 1164, 1175 (2d Cir. 1983).
Criminal discovery in federal cases, however, differs
significantly from discovery as prescribed by Alaska Criminal
Rule 16. We see no basis for categorically exempting
presentence reports from the in camera review procedure set out
in Braham. Such a review, when called for, will not be unduly
burdensome on the trial court; nor is the court's in camera
review of an already existing court record likely to result in
more than a de minimis incremental incursion on the privacy
interests of the person who is the subject of the report.
4. In the unlikely event that in camera review yields
discoverable information that was not previously available to
Russell Johnson from another source, the superior court should
permit the parties to argue its significance and may, in its
discretion, entertain a motion by Russell Johnson for a new trial
based on the information.
