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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
THOMAS L. BELTZ, ) Court of Appeals Nos. A-4812 &
5092
) Trial Court Nos. 3PA-93-198 Civ
Appellant, ) and 3PA-92-294 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1409 - May 12, 1995]
______________________________)
Appeal from the Superior Court, Third
Judicial District, Palmer, Beverly W. Cutler,
Judge.
Appearances: A. Lee Petersen,
Anchorage, for Appellant. James L. Hanley,
Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, and Coats
and Mannheimer, Judges.
MANNHEIMER, Judge.
Thomas L. Beltz appeals his convictions for first-
degree sexual abuse of a minor, AS 11.41.434(a), as well as the
superior court's denial of his ensuing petition for post-
conviction relief. We reverse Beltz's conviction because we
conclude that the trial court improperly prohibited Beltz from
introducing evidence to impeach his wife.
In January 1991, Beltz and his wife were living apart.
Beltz's three children were living with him. According to the
evidence in the light most favorable to the State, Beltz awakened
his 11-year-old daughter, T.B.; he told her that she felt hot and
that she should take some medicine. Beltz escorted T.B.
downstairs, where Beltz gave his daughter both Tylenol and a
cough medicine similar to Nyquil. When T.B. began to fall asleep
on the couch, Beltz took her to sleep in his bed. T.B. came
awake when Beltz began to pull down her panties; however, she
pretended to be asleep. Beltz then proceeded to perform sexual
penetration upon his daughter.
T.B. did not report this incident to her mother until
almost a year later. When she heard her daughter's account,
T.B.'s mother confronted Beltz. Beltz denied any misconduct, but
he made an appointment for his family to receive counseling at
Charter North Hospital. The hospital staff informed Beltz that
no counseling could begin until he apprised authorities of his
daughter's report of sexual abuse. So Beltz and his wife drove
to the Palmer office of the Alaska State Troopers, where he
reported that his daughter had accused him of sexual abuse.
Alaska State Trooper Investigator Jamie Hall was
informed by a clerk that there was a gentleman at the front
counter who wished to "talk to somebody about sex abuse".
Investigator Hall met Beltz and interviewed him for forty
minutes. During the interview, Beltz at first asserted that his
daughter's account was false, but he eventually did an about-face
and admitted the sexual abuse. Beltz told Hall, "Everything my
daughter says is true."
Beltz was indicted on two counts of first-degree sexual
abuse of a minor (Count I alleging cunnilingus and Count II
alleging fellatio). Following a jury trial, Beltz was convicted
of both counts.
Beltz first argues that the superior court improperly
prevented him from cross-examining his daughter regarding the
fact that she had complained to school authorities about a male
teacher who had put his arm around her. In the trial court,
Beltz asserted that his daughter had lodged the complaint to
retaliate against the teacher for his attempts to discipline her.
Beltz argued that the complaint was relevant to his trial because
it was "quasi-sexual" in nature, because it occurred "near in
time" to his alleged offenses, and because it suggested that his
daughter had engaged in a series of false accusations. Superior
Court Judge Beverly Cutler ruled that Beltz could not cross-
examine his daughter concerning this incident.
On appeal, Beltz asserts that he should have been
permitted to engage in this cross-examination. However, before
Beltz would be entitled to impeach his daughter with her
complaint against the teacher, it was essential for Beltz to
establish that his daughter's complaint against the teacher was
unfounded. Covington v. State, 703 P.2d 436, 442 (Alaska App.
1985); Daniels v. State, 767 P.2d 1163, 1167 n.3 (Alaska App.
1989). Beltz presented no evidence that T.B.'s complaint was
fabricated. In fact, Beltz's attorney candidly admitted to Judge
Cutler, "We don't have any [reason] to think that ... anything
she's saying [is] false". For this reason, Judge Cutler
correctly prohibited Beltz from impeaching his daughter with her
complaint against the teacher.
Beltz next argues that he should have been permitted to
introduce evidence that T.B. had been involved in a burglary that
was informally adjusted by the Division of Family and Youth
Services. Beltz contended that this incident illustrated Beltz's
role as the family disciplinarian and that, because Beltz
attempted to discipline his daughter for the burglary, T.B. was
motivated to fabricate allegations of sexual abuse against him.
Judge Cutler agreed that the episode did have probative
value to the extent that it tended to show that T.B. might have
had a motive to retaliate against her father's discipline by
accusing him of sexual abuse. The judge ruled that Beltz was
entitled to present evidence that there was an incident for which
Beltz disciplined T.B.. However, Judge Cutler instructed Beltz
and his attorney to characterize the incident as "trouble",
referring to it generally rather than going into the specifics of
what the trouble was (burglary). She entered a protective order
against Beltz's use of the words "burglary" or "juvenile
delinquent" or "juvenile prosecution" when eliciting information
about the burglary from T.B. in front of the jury. However,
Judge Cutler left the door open for more detailed evidence about
the burglary if, during the course of the trial, it became
apparent that the specifics of the incident would be more
probative than prejudicial.
During the ensuing cross-examination of T.B., Beltz
asked T.B. (1) whether she had had some problems in the neighbor
hood, (2) whether it had taken a long time to resolve these
problems, (3) whether it was her father who usually punished her
(spanked and grounded her), and (4) whether her father became so
upset after hearing, at a parent-teacher conference, that T.B.
was doing poorly in school that he beat her with a belt. T.B.
gave affirmative answers to all of these questions. When asked
whether she felt that Beltz had picked on her, T.B. said no, but
that she had received special punishment (the beating with a
belt) as a result of her poor grades.
It appears that the jury also heard about the burglary
when the audio tape was played of the interview between Beltz and
Investigator Hall. On the tape, Beltz told Hall that, when his
wife returned to live with the family,
It was pretty rough, [pretty] rocky ...
. My daughter was charged with burglary
[and,] shortly thereafter, we were dealing
with Youth [and] Family Services. [T.B.] had
[had] a 3.5 grade average from sixth grade,
[but] when my wife returned we started having
all kinds of problems with [T.B.]. [Her]
grades went down, [and] coupled with the
burglary and everything else, ... I just
wondered. And [we] went through Youth
Services on that, and had that resolved.
This audio tape was played twice, once during the State's case-in-
chief and once during Beltz's case.
In addition, when Beltz took the stand at his trial he
began to describe the burglary incident. He stated, "In July of
that year, [T.B.] was overnighting next door ... at this little
girl's house. There was [sic] some girls come up from Anchorage
..." Beltz was interrupted by a bench conference about Beltz's
anticipated testimony. When direct examination resumed, Beltz's
attorney asked him whether the incident he had been describing
was the same one that he described to Investigator Hall during
his interview. Beltz said yes.
On appeal, Beltz again asserts that he should have been
allowed to refer to the incident as a "burglary" and to inform
the jury that the juvenile authorities had been involved.
However, his argument rests on generalized assertions of the
right of cross-examination. Beltz does not discuss the details
of the trial court's ruling, nor does he specifically argue how
that ruling failed to afford him the opportunity to apprise the
jury of the substance of the incident and its potential biasing
influence on T.B.. We find no error. Moreover, the record
indicates that, despite the trial judge's ruling, Beltz was able
to present all his desired evidence. Thus, we alternatively find
no prejudice.
Beltz next challenges the superior court's decision to
allow the State to present evidence of another sexual incident
involving Beltz and T.B.. Sometime after Beltz sexually abused
T.B., but before T.B. revealed the abuse, T.B. was in bed
sleeping with her parents when she felt something poking her in
the back. Thinking that it was her brother, T.B. turned around
to find that it was her father; Beltz was poking her with his
penis and laughing about it. T.B. told her mother about the
incident, but her mother dismissed it; she told T.B. that Beltz
did that same thing to her and that he must have mistaken T.B.
for her.
Beltz asked the superior court for a protective order
precluding the State from introducing evidence of this second
incident. Beltz argued that this incident should be excluded
because it was "remote in time" (it occurred "at least three
months" after the incident charged in the indictment) and because
it did not "seem to advance the case one way or another for the
State". In response, the State argued that this incident was
relevant to explain why T.B. had waited so long to reveal the
more serious acts of abuse to her mother (because she revealed
the less serious incident and her mother did not support her).
After hearing these arguments, Judge Cutler ordered the
State not to mention this second incident in its opening
statement and also ordered the State to seek a hearing outside
the presence of the jury before introducing any evidence
regarding the incident.
The issue resurfaced when T.B. began to explain why she
had waited nearly a year to tell her mother about the sexual
abuse charged in the indictment. Outside the presence of the
jury, T.B. testified that she was reluctant to tell her mother
about the more serious abuse because, when she told her mother
about the less serious incident, her mother simply excused her
father's conduct. After hearing T.B.'s proposed testimony,
Beltz's attorney stated that he no longer had any objection to
the testimony. The jury was recalled, and T.B. reiterated her
answers in open court.
On appeal, Beltz argues that this testimony should not
have been admitted. However, the record plainly reveals that
Beltz affirmatively withdrew his objection to this testimony
after he heard the State's offer of proof. If it was error to
admit T.B.'s testimony about the other incident, it was clearly
invited error. See Barrett v. State, 772 P.2d 559, 568-69 n.10
(Alaska App. 1989).
Moreover, we find no error. The evidence was plainly
relevant to explain T.B.'s year-long delay in revealing Beltz's
sexual abuse. Judge Cutler did not abuse her discretion when she
ruled that this evidence could be heard by the jury.
Finally, Beltz argues that the trial judge improperly
prevented him from impeaching his wife with evidence that she had
beat him with her fists during one argument and had pointed a gun
at him during another argument in 1986.
Judy Beltz took the stand as a government witness at
her husband's trial. During cross-examination by Beltz's
attorney, Ms. Beltz testified that the couple had had serious
fights during the entire 16-year course of the marriage. When
asked about the six years they lived in Kenai (from 1984 to
1990), Ms. Beltz admitted that she had slapped her husband and
had falsely accused him of being a homosexual.
The couple moved to Anchorage in 1990, but then Mr.
Beltz took the children to Wasilla without Ms. Beltz's
permission. Ms. Beltz came to live with her husband and the
children in Wasilla, but she moved out twice when her husband
ordered her to leave. Ms. Beltz also conceded that, when Beltz
ordered her to move out the second time, she believed that he was
considering divorcing her, that there would be a custody fight
over the children, and that her husband would probably win. Ms.
Beltz testified that she was worried about her husband's
obtaining custody of the children, and she also told the jury
that when she moved back to Wasilla in June 1991 to resume living
with her husband, it was not out of love for him but rather her
desire to be with her children.
During this cross-examination, Beltz's attorney sought
to elicit more details of physical violence that Judy Beltz had
inflicted on her husband. In voir dire outside the presence of
the jury, Judy Beltz testified that she and Beltz had had several
arguments during the six years they lived in Kenai, and that on
one occasion she beat her husband with her fists and tore his
clothing. During another argument, after Beltz had threatened to
take custody of their children, Judy Beltz pointed a gun at him.
This gun-pointing incident occurred in 1986.
Beltz's attorney argued that the evidence of these
violent confrontations showed the intensity of the disputes
between the Beltzes and, in particular, showed the intensity of
Judy Beltz's response when Beltz threatened to take the children
from her. The defense attorney asserted that this evidence
tended to support his theory of the case _ that Judy Beltz had
influenced her daughter to concoct a false report of sexual abuse
so that she could obtain custody of the children.
Judge Cutler ruled, however, that this evidence would
not be admitted. Noting that the jury had already heard evidence
about the Beltzes' bad marital relationship, the judge concluded
that additional evidence that Judy Beltz had assaulted her
husband six years before would not materially help the jury
decide the case and would instead distract them with collateral
issues.
Generally speaking, trial judges should freely allow
counsel to demonstrate the grounds for a witness's potential
bias. R.L.R. v. State, 487 P.2d 27, 44 (Alaska 1971). However,
the question of what specific questions will be allowed and what
specific evidence will be admitted is entrusted to the trial
judge's discretion, and we will not reverse the trial judge's
ruling absent a showing that this discretion has been abused.
"An abuse of discretion occurs only when the jury did not
otherwise receive information adequate to allow it to evaluate
the bias and motives of a witness." Stumpf v. State, 749 P.2d
880, 901 (Alaska App. 1988).
In Beltz's case, the jury heard that the Beltzes'
marriage had been rocky for sixteen years. The jury heard that,
in 1990, Beltz took the children to live in Wasilla, leaving his
wife behind in Anchorage, and that when Ms. Beltz moved to
Wasilla to rejoin her family, Beltz twice ordered her to leave.
The jury also heard that Judy Beltz feared that her husband was
contemplating a divorce and that he would successfully fight her
for custody of the children. Additionally, the jury heard that
Ms. Beltz, when she finally moved back in with her husband, made
this choice only to be with her children and not because she
loved her husband.
However, we conclude that the additional evidence
offered by the defense _ in particular, the evidence of Ms.
Beltz's armed assault on her husband _ was materially different
from the evidence recited in the previous paragraph. We agree
with the defense attorney that the offered evidence showed the
intensity of Ms. Beltz's feelings toward her husband, and her
feelings about the child custody issue, in a manner not
replicated by the other evidence.
Judge Cutler was, of course, entitled to weigh the
probative value of the evidence against its potential for "unfair
prejudice, confusion of the issues, or misleading the jury", and
to exclude the evidence if these prejudicial aspects outweighed
the evidence's probative value. See Alaska Evidence Rule 403.
However, under the particular facts of Beltz's case, the offered
evidence had few or no prejudicial aspects. Ms. Beltz readily
admitted committing the two assaults on her husband. Moreover,
unlike most cases in which a witness is alleged to have committed
an assault, Ms. Beltz never asserted that she acted in self-
defense or in response to serious provocation from her husband.
Under these facts, the possibility that Beltz's trial would be
side-tracked by a "mini-trial" (extensive litigation concerning
the details or the reasons underlying the assaults) was uniquely
small.
Judge Cutler pointed out that the incidents of violence
had occurred six years before. However, given the ongoing nature
of the Beltzes' dispute over custody of their children, this
passage of time does not significantly weaken the probative force
of the evidence. Rather, it supports the inference argued by the
defense attorney: that Ms. Beltz had abandoned violence toward
her husband in favor of a more sophisticated scheme to obtain
custody of the children (manufacturing allegations of sexual
abuse).
Finally, there was little or no possibility that the
jury would misuse the evidence. Even if the jury concluded,
after hearing evidence of the two assaults on Thomas Beltz, that
Ms. Beltz was a violent and unlikable person, there was little or
no possibility that the jury would be tempted to use this
proffered evidence of Ms. Beltz's bad character as a basis for
acquitting Beltz of sexually abusing his daughter.
Given the probative value of the evidence and its
uncommonly low potential for prejudicing the proceedings, we
conclude that Judge Cutler abused her discretion when she refused
to allow Beltz to cross-examine his wife about the domestic
violence connected with the Beltzes' custody dispute. And, again
based on our conclusion that this evidence was uniquely probative
of Ms. Beltz's motives, we conclude that the trial judge's ruling
was not harmless error. Love v. State, 457 P.2d 622, 629-631
(Alaska 1969). Beltz is entitled to a new trial.
Although we are reversing Beltz's convictions, we must
nevertheless address Beltz's appeal of the superior court's
denial of his petition for post-conviction relief. In this
petition, Beltz asserted a single ground for relief: that his
confession to Trooper Hall was involuntary.
Under Alaska Criminal Rule 12(b)(3), a motion "to
suppress evidence on the ground that it was illegally obtained"
must be filed before trial. Under Criminal Rule 12(e), a
defendant's failure to raise such a motion before trial "shall
constitute waiver thereof". In the original trial court
proceedings, Beltz did not challenge the admissibility of his
statements to Trooper Hall. Because of this, Beltz is not
entitled to raise a suppression argument in a petition for post-
conviction relief. Gudmundson v. State, 822 P.2d 1328, 1332
(Alaska 1991); Marrone v. State, 653 P.2d 672, 674-75 (Alaska
App. 1982). See Fajeriak v. State, 520 P.2d 795, 803 (Alaska
1974) (a defendant's failure to object at trial to the
composition of his jury precluded his raising this issue in a
petition for post-conviction relief).
Beltz's petition for post-conviction relief did not
assert that his attorney acted incompetently by failing to attack
the voluntariness of Beltz's statements to Hall. Beltz did,
however, argue that the suppression issue should not be viewed as
waived. Beltz asserted that it was his attorney's decision not
to attack the voluntariness of Beltz's statements to Trooper
Hall, and that his attorney failed to obtain Beltz's personal
assent to this decision. Therefore, Beltz concluded, he never
personally waived his right to seek suppression of his interview
with Hall.
The answer to this argument is that Beltz's personal
assent to his attorney's tactical decision was not required. The
supreme court's decisions in Gudmundson and Fajeriak, like this
court's decision in Marrone, do not rest on principles of
personal waiver. Rather, these decisions enforce the principle
of finality embodied in Criminal Rule 12: that the non-
jurisdictional defenses listed in Rule 12(b) must be raised
before trial or they are forfeited (absent a showing of good
cause for the defendant's failure to raise them). Because Beltz
failed to attack the admissibility of his statements during the
trial proceedings, he would be precluded from attacking those
statements on direct appeal. And as this court pointed out in
Marrone, it would be illogical to allow Beltz to raise issues in
a petition for post-conviction relief that he would be precluded
from raising in a direct appeal. Marrone, 653 P.2d at 675.
Beltz might still be entitled to litigate his claim
under the rubric of plain error. See the discussion in Marrone,
653 P.2d at 675. However, we find no plain error. The trial
court record does not reveal that Beltz's statements to Hall were
plainly involuntary. If anything, the trial court record
indicates the opposite.
Beltz came voluntarily and unannounced to the State
Trooper office. Having arrived, he asked the desk clerk to
summon an officer so that he (Beltz) could report the fact that
his daughter had accused him of sexual abuse. At trial, Beltz
conceded that he knew he could have left the interview at any
time he wished. Beltz was plainly not in custody. See Long v.
State, 837 P.2d 737, 740-41 (Alaska App. 1992) (the test for
custody is an objective one: "would a reasonable person have felt
free to break off the interrogation and, depending on the
location, either leave or ask the police to leave?").
Beltz argues that there was a point during his
interview with Trooper Hall when Hall began to regard Beltz as
the subject of a criminal investigation. Beltz asserts that Hall
violated the law when, at this point, he failed to advise Beltz
of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct.
1602, 16 L.Ed.2d 694 (1966), and instead continued to interview
Beltz with the aim of obtaining further incriminating
information.
However, the fact that Hall may have come to suspect
Beltz of sexually abusing his daughter during the interview did
not trigger any obligation for Hall to advise Beltz of his
rights. A suspect's right to receive Miranda warnings hinges on
whether the suspect is in custody, not whether the interviewing
officer has identified the suspect as the focus of investigative
suspicion. Both the Alaska Supreme Court and the United States
Supreme Court have explicitly rejected "focus of suspicion" as a
test for whether a suspect is in custody. Hunter v. State, 590
P.2d 888, 892-93 (Alaska 1979); Beckwith v. United States, 425
U.S. 341, 346-47; 96 S.Ct. 1612, 1616-17; 48 L.Ed.2d 1, 5 (1976).
Beltz argues that his statements to Hall were
involuntary because he was under significant stress in his
personal life, stress that led him to feel that he might as well
confess to any crime his daughter had alleged. However, to the
extent that Beltz might have felt private pressures to confess,
these pressures do not render his statement involuntary. A claim
of involuntariness must rest on coercive police activity.
Colorado v. Connelly, 479 U.S. 157, 167; 107 S.Ct 515, 522; 93
L.Ed.2d 473 (1986); Macauly v. State, 734 P.2d 1020, 1023 (Alaska
App. 1987).
Moreover, Beltz was a former police officer and correc
tions officer. He was familiar with the Miranda rights, and he
was aware that those rights applied to him during his interview
with the trooper.
Beltz points to various times during the interview when
Trooper Hall expressed sympathy with him. Beltz argues that
Hall's remarks caused him to relax his guard and confess to
sexually abusing his daughter when he otherwise would not have.
However, an interviewing officer's expressions of sympathy do not
render an ensuing confession involuntary. Thompson v. State, 768
P.2d 127, 131-32 (Alaska App. 1989).1
The test for the voluntariness of a statement is
whether, after examination of all the circumstances, the record
"discloses that the conduct of law enforcement [officers] was
such as to overbear [the defendant's] will to resist and bring
about confessions not freely self determined". Stobaugh v.
State, 614 P.2d 767, 771-72 (Alaska 1980) (quoting United States
v. Ferrara, 377 F.2d 16, 17 (2nd Cir. 1967)). To prove plain
error, it is Beltz's burden to demonstrate that the trial court
record plainly reveals that Hall engaged in conduct that overcame
Beltz's will to resist. The trial court record does not show
this.
In an affidavit that Beltz filed with his petition for
post-conviction relief, Beltz asserts that he subjectively
interpreted Hall's sympathetic statements as an implicit
indication that Hall did not intend to initiate a criminal
prosecution against him, even though such an interpretation of
Hall's remarks might not have been objectively warranted. These
assertions of Beltz's subjective state of mind are not part of
the trial court record; Beltz can not rely upon them to establish
plain error.
For these reasons, the superior court's judgement in
the post-conviction relief action is AFFIRMED. However, the
superior court's judgement in the criminal prosecution is
REVERSED; Beltz is entitled to a new trial.
_______________________________
1 Thompson pursued habeas corpus relief in federal court.
His case is currently pending in the United States Supreme Court;
Thompson v. Keohane, cert. granted, 115 S.Ct. 933 (January 23,
1995).
