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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
DANNY L. RUSSELL, )
) Court of Appeals No. A-5709
Appellant, ) Trial Court No. 1KE-94-950 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1520 - March 28, 1997]
______________________________)
Appeal from the Superior Court, First Judicial
District, Ketchikan, Thomas M. Jahnke, Judge.
Appearances: Averil Lerman, Anchorage, for
Appellant. Eric A. Johnson, 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.
Danny L. Russell appeals his conviction for first-degree
sexual assault, AS 11.41.410(a). Russell questions various
evidentiary rulings made by the trial court, and he asserts that the
trial court committed plain error in two of its jury instructions.
Russell also challenges his sentence. We affirm.
Russell was charged with raping his wife, T.R., from whom
he was separated. Russell and T.R. married in April 1993, but they
separated eleven months later (in March 1994). T.R. remained in
Ketchikan, and Russell went to Prince of Wales Island.
The marriage was marked by several episodes in which
Russell physically abused his wife. Russell once punched his wife
in the head and gave her a black eye. On a different occasion,
Russell attempted to run T.R. over with a car. In August 1993,
Russell attacked T.R. so brutally that she had to be medivacked to
Ketchikan, where she was treated by Dr. Ernest Meloche for head
trauma as well as cervical and lumbar sprains. In January 1994,
Russell was convicted of harassment based on another assault on
T.R..
During the marriage, T.R. sought refuge several times at
the Ketchikan's women's shelter. She also received repeated medical
treatment from Dr. Meloche.
In May 1994, after the couple had been separated for two
months, T.R. obtained dissolution papers, completed her portion of
the papers, and sent them to Russell. Russell refused to sign the
papers. T.R. also obtained a restraining order that barred Russell
from contacting T.R. or her children (from a prior marriage).
Russell repeatedly violated this order by telephoning T.R. and
writing her letters. Over the next two months, Russell sent
approximately 60 letters to T.R. (essentially, one every day). One
of Russell's letters from late June contained a threat to rape T.R..
Russell wrote:
Please answer [my letters]. [T.R.], do you
love me or is it just for the money? You told
me that you liked me to take matters into my
own hands. So I guess I will even if it means
raping you. I do need and want you.
On July 1, 1994, unbeknown to T.R., Russell returned to
Ketchikan. Wishing to see T.R., and believing that she was living
at the women's shelter, Russell set up watch at a distance from the
shelter. T.R. was not living at the shelter, but by coincidence she
and her son happened to walk into downtown Ketchikan near the
shelter that day. Russell saw them and approached T.R.. T.R. told
Russell that the restraining order was still in effect, but she and
her son nevertheless accompanied Russell to a nearby McDonald's
restaurant.
At the restaurant, Russell made physical advances toward
T.R.. According to T.R.'s son, Russell "kept jerking [T.R.'s] head
to kiss him"; T.R. "covered her face" to avoid the physical contact.
The resulting commotion attracted the attention of another customer.
Attempting to defuse the situation, T.R. gave Russell a "peck" on
the cheek. She then told him that she wanted him to sign the
dissolution papers.
After about 20 minutes at the restaurant, T.R. told
Russell that she and her son were leaving for the video store. When
Russell suggested that he come along, T.R. told Russell that they
did not want him to accompany them. In response, Russell told T.R.
that "he intended to follow her wherever she went". Fearing that
Russell would follow her home (and thus discover where she was
living), T.R. offered to walk Russell back to his hotel.
At the hotel, Russell invited T.R. and her son up to his
room. He then gave T.R.'s son some money to play video games; the
boy departed, leaving Russell and T.R. alone in Russell's room.
Thereafter, Russell engaged in sexual intercourse with T.R.. This
act of sexual penetration formed the basis of the ensuing sexual
assault charge against Russell. The State alleged that Russell had
sexually assaulted T.R..
In general, a charge of first-degree sexual assault
requires proof of two main elements: first, that the act of sexual
penetration occurred without the victim's consent, and second, that
the defendant acted recklessly with regard to the victim's lack of
consent. See Reynolds v. State, 664 P.2d 621 (Alaska App. 1983).
Russell asserted that his sexual intercourse with T.R. had occurred
with her consent.
At trial, T.R. testified that she repeatedly told Russell
that she did not wish to have sex with him. She tried to leave the
room, but Russell barred the door. T.R. stated that she repeatedly
asked Russell to stop and that she cried throughout the assault.
While the assault was taking place, T.R.'s son returned to Russell's
hotel room and knocked on the door; T.R. attempted to speak, but
Russell covered her mouth with his hand.
T.R.'s account was corroborated by a card that Russell
wrote to T.R. a few days later. In this card, Russell said:
[T]hank you so much for seeing me. I am so
sorry if you know what I mean. Honest, I told
myself years ago I would never ever really
force you. I'm so ashamed for what I did.
Don't hate me for it. I thought maybe you
might have liked it. I did. Don't hate me,
please. ...
T.R. conceded, however, that she did not physically resist
Russell. She explained that she decided not to resist because of
Russell's past acts of violence. T.R. also conceded that she did
not report the sexual assault for three days, and that, in the
meantime, she made a payment on her wedding ring.
According to Russell, T.R. was the one who suggested that
she and her son walk Russell back to his hotel room. When they
reached the room, Russell put his arms around T.R. and kissed her;
she responded by "mov[ing] in a romantic way, ... looking out the
window." About this time, Russell gave T.R.'s son money to play
video games, and Russell and T.R. were left alone. Russell and T.R.
kissed, and then Russell placed T.R. on the bed. T.R. told Russell,
"Dan, ... we shouldn't be doing this ... because my counselors don't
want me to have any contact with you." However, according to
Russell, T.R. then willingly had sexual intercourse with him.
Russell conceded that T.R. began to cry afterwards, but
he attributed T.R.'s reaction to remorse and embarrassment. Russell
suggested that T.R. felt these emotions because she had promised her
women's shelter counselors that she would build a life without
Russell, but now she had just engaged in intimate relations with him
again.
Russell relied on a similar theory to explain his letter
of apology to T.R.. Russell claimed that he told T.R. he was sorry
because he understood her ambivalence about having sex with him and
because he was ashamed of having convinced T.R. to ignore the advice
of her counselors.
Before trial, Russell asked the superior court to bar the
State from introducing evidence of Russell's physical abuse of T.R.
while they were living together in 1993. Russell argued that such
evidence would do nothing more than paint him as an abusive husband,
and thus the evidence was barred by Alaska Evidence Rule 404(b).
The State responded that Russell's assaults upon T.R. were relevant
to explain T.R.'s behavior during the events being litigated þ in
particular, why she agreed to go to Russell's hotel room and why she
did not physically resist Russell's sexual advance.
Superior Court Judge Thomas M. Jahnke decided to reserve
his final ruling on this issue until after he heard T.R.'s
testimony. However, he did indicate that it seemed likely that
evidence of Russell's prior assaults on T.R. would prove relevant
in the ways the State suggested.
During T.R.'s testimony, she described Russell's various
physical assaults on her during their marriage. Russell did not
object.
On appeal, Russell argues that this evidence should not
have been admitted. However, as just explained, Judge Jahnke never
made a final ruling on this evidentiary question because Russell
never asked for one. When Russell raised this issue (by asking for
a protective order before T.R. testified), Judge Jahnke stated that
he would reserve his ruling. Later, when T.R. testified about
Russell's prior assaults, Russell did not object, nor did he remind
Judge Jahnke that the judge had yet to rule on the motion for a
protective order. Under these circumstances, Russell failed to
preserve this issue for appeal. Torres v. State, 519 P.2d 788, 794-
95 (Alaska 1974).
Even if this issue had been preserved, we would find no
error. Evidence of a defendant's prior crimes is admissible to
explain the relationship between two people. See Braham v. State,
571 P.2d 631, 641 (Alaska 1977). In particular, such evidence is
relevant to explain why one person might fear another person or
might submit to another person's will. Dulier v. State, 511 P.2d
1058, 1061 (Alaska 1973). This same rationale is employed to admit
evidence of the victim's past acts of violence when a defendant is
charged with assault or homicide and defends by claiming self-
defense: on the issue of whether the defendant acted reasonably in
using force upon the victim, the defendant is entitled to introduce
evidence that he was aware of the victim's past acts of violence.
See McCracken v. State, 914 P.2d 893, 898-99 (Alaska App. 1996).
In the present case, the State alleged that Russell had
engaged in sexual intercourse with T.R., that T.R. had not consented
to this, and that Russell had recklessly disregarded T.R.'s lack of
consent. Russell argued that his wife had consented to have sexual
intercourse with him, or at least she never resisted or gave any
other manifest indication that she did not consent. Russell's prior
assaults on T.R. were relevant to the jury's evaluation of these
issues. Such evidence could explain why T.R. would agree to
accompany Russell to the hotel room and why she did not physically
resist Russell when she was alone with him in the room. Moreover,
Russell's past assaults on T.R. were also potentially relevant to
the State's proof of Russell's recklessness þ Russell's awareness
of a substantial and unjustifiable possibility that T.R. felt
coerced to engage in the act of sexual intercourse. (EN1)
Russell argues that, in a recent legislative amendment to
Evidence Rule 404(b), the legislature indicated its intention to
exclude the type of other-crimes evidence that was introduced at
Russell's trial. In 1994, the legislature added subsection (b)(3)
to Evidence Rule 404(b). See 1994 SLA, ch. 116, sec. 2. Evidence
Rule 404(b)(3) states:
In a prosecution for a crime of sexual
assault in any degree or attempt to commit
sexual assault in any degree, evidence of other
sexual assaults or attempted sexual assaults by
the defendant against the same or another
person is admissible if the defendant relies on
a defense of consent.
Russell argues that, because Rule 404(b)(3) refers to evidence of
a defendant's other sexual assaults, the legislature must have
intended to exclude evidence of a defendant's non-sexual assaults.
Russell's interpretation of subsection (b)(3) does not
make sense. When the legislature enacted subsection (b)(3), its
declared intent was to expand the scope of admissible evidence, not
restrict it. See the declaration of purpose contained in SLA 1994,
ch. 116, sec. 1. Evidence of Russell's physical assaults on T.R.
would have been admissible under Rule 404(b) before the legislature
added subsection (b)(3). We reject Russell's suggestion that
subsection (b)(3) was intended to exclude evidence of a defendant's
prior crimes against the victim, evidence that would have been
admissible before the legislature amended the rule.
Russell also argues that evidence of his prior assaults
on T.R. should have been excluded because Russell's attorney was not
given adequate advance notice of the State's intention to introduce
this evidence. In the trial court, Russell's attorney claimed that
he was surprised when the State announced that it intended to elicit
testimony regarding Russell's other assaults on T.R.. The prosecu-
tor responded that, during pre-trial discovery, the State had
provided Russell's attorney with information about these prior
assaults. The prosecutor also pointed out that Russell's attorney
must have known that the State would try to introduce this evidence
because the defense attorney filed a pre-trial motion for a
protective order, asking the superior court to exclude evidence of
the prior assaults.
After hearing these arguments, Judge Jahnke asked
Russell's attorney if he needed a continuance to prepare for the
other-crimes evidence. Russell's attorney asked to be given until
noon to review the information. Later, just before T.R. testified,
Judge Jahnke asked the defense attorney, "What's the situation at
the defense table with regard to a request for a continuance[?]"
Russell's attorney answered, "I'm ready to go."
Assuming for purposes of argument that Russell was in fact
surprised by the State's intention to introduce evidence of his
prior assaults on T.R., Russell's remedy was a continuance, not
exclusion of the evidence. Des Jardins v. State, 551 P.2d 181, 187
(Alaska 1976). See also Bostic v. State, 805 P.2d 344, 347-48
(Alaska 1991) (when a defendant is prejudiced by a mid-trial
discovery violation, the remedy is a continuance or a mistrial, not
exclusion of the evidence). Judge Jahnke offered Russell's attorney
a continuance, and the defense attorney declared that he did not
need one. There was no error.
We now turn to a separate point on appeal that is closely
related to this last one. At trial, Dr. Ernest Meloche testified
about the times he had treated T.R. for physical injuries. He also
testified that, based on his experience with T.R., he diagnosed her
as suffering from "battered woman syndrome" þ a psychological
condition in which a woman who is repeatedly subjected to violence
at the hands of her husband or domestic partner will nevertheless
stay with her abuser, being psychologically unable to sever the
relationship.
Russell argues on appeal that Dr. Meloche was not
qualified to offer an opinion regarding whether T.R. suffered from
battered woman syndrome. This argument is not preserved. Dr.
Meloche testified on voir dire concerning his medical qualifications
and concerning his diagnosis of battered woman syndrome. Following
this voir dire examination, Russell did not question Dr. Meloche's
qualifications as an expert witness on these subjects. Russell
argued only that Dr. Meloche's testimony would constitute an
improper "validation" of T.R.'s testimony.
By failing to object to Dr. Meloche's qualifications
following the voir dire, it appears that Russell implicitly
acknowledged that Dr. Meloche was sufficiently qualified to offer
an expert opinion on the subjects described in his testimony.
Moreover, regardless of whether Russell's failure to object
constituted an implicit acknowledgement of the doctor's qualifica-
tions, that failure to object constituted a waiver of this issue.
It is true that the trial court failed to make an explicit
finding that Dr. Meloche was qualified to testify concerning
battered woman syndrome; however, this failure did not constitute
plain error. As revealed by his testimony, Dr. Meloche is a board-
certified expert in emergency medicine, and he has received
extensive training in battered woman syndrome. Battered woman
syndrome is often relevant to the emergency treatment of women, and
this diagnosis is often made by emergency-room physicians. Dr.
Meloche himself had made this diagnosis many times during his years
as an emergency medicine practitioner.
This testimony sufficiently established Dr. Meloche as an
expert witness under the test contained in Alaska Evidence Rule 702.
See Dymenstein v. State, 720 P.2d 42, 45 (Alaska App. 1986) (Under
Evidence Rule 702, "[t]he criterion in determining whether a person
qualifies as an expert is whether the fact-finder can receive
appreciable help from that person", and a trial judge has
considerable discretion in deciding what expert testimony should be
admitted.). See also Hilburn v. State, 765 P.2d 1382, 1385-86
(Alaska App. 1988) (upholding the trial court's ruling that, based
on a physician's experience in the Indian Health Service, the
physician was qualified to testify as an expert on the behavioral
characteristics of Eskimo women who have undergone trauma).
Russell also claims that Judge Jahnke should have
precluded Dr. Meloche from testifying (or, at least, from testifying
as an expert witness) because Russell did not receive pre-trial
notice of this testimony. Russell relies on the current version of
Alaska Criminal Rule 16(b)(1) þ specifically, subsection (v)(B) þ
for the proposition that the State was obliged to furnish Russell
with a pre-trial "written description of the substance of [Dr.
Meloche's] proposed [expert] testimony". However, this version of
the rule was not in effect at the time of Russell's trial. Under
the version of Rule 16(b)(1) that was in effect, the State was
obliged to give Russell "any reports or statements of experts made
in connection with the case". The State complied with this
provision by furnishing Russell with a copy of Dr. Meloche's report.
This report included Meloche's diagnosis of T.R. as suffering from
battered woman syndrome.
Russell's claim of surprise is further undercut by the
fact that, prior to trial, Russell filed a motion for a protective
order, asking the superior court to "preclude any evidence of Dr.
Meloche's conclusions of 'battered wife syndrome'". It appears that
Russell's attorney was aware of at least a substantial possibility
that the State would call Dr. Meloche as an expert witness. (EN2)
Finally, Russell argues that even if his procedural
objections to Dr. Meloche's testimony are not well-taken, Dr.
Meloche nevertheless should not have been allowed to testify about
his diagnosis of T.R. as a battered woman. According to Russell,
when Dr. Meloche described battered woman syndrome and diagnosed
T.R. as suffering from this condition, the doctor improperly vouched
for T.R.'s credibility. Russell likens Dr. Meloche's testimony to
the psychological "profile" evidence that this court rejected in
such cases as Cox v. State, 805 P.2d 374, 377-79 (Alaska App. 1991),
and Haakanson v. State, 760 P.2d 1030, 1036 (Alaska App. 1988).
Cox and Haakanson prohibit the State from introducing
evidence that there is a psychological "profile" characteristic of
sexual abuse or sexual assault victims to prove that the victim in
a particular case fits this profile, and thus that the victim must
be telling the truth when he or she claims to have been abused or
assaulted. However, Dr. Meloche's testimony did not violate this
rule.
Although the State can not use psychological profile
evidence as an offensive weapon, the State is entitled to introduce
"profile" testimony in response to a defense claim that the victim's
conduct was inconsistent with a claim of sexual assault or sexual
abuse. Haakanson, 760 P.2d at 1036; Rodriquez v. State, 741 P.2d
1200, 1203-05 (Alaska App. 1987). Russell claimed that T.R.'s
conduct before, during, and after her encounter with Russell in the
hotel room was inconsistent with her allegation of rape. The State
was therefore entitled to introduce evidence explaining how T.R.'s
behavior was not necessarily inconsistent with the State's
allegation of sexual assault. Dr. Meloche's description of battered
woman syndrome and his diagnosis of T.R. as suffering from this
syndrome were relevant and admissible on this issue. (EN3)
Russell argues that, assuming Dr. Meloche's testimony was
admissible, the trial judge should have given the jury a special
instruction limiting the jurors' consideration of this testimony.
As Russell concedes on appeal, his trial attorney did not ask for
such an instruction. Thus, Russell must establish that the failure
to give a limiting instruction was plain error.
To prove plain error, Russell must establish that the
court's failure to act was a manifest error, obvious to any
competent lawyer or judge. Massey v. State, 771 P.2d 448, 453
(Alaska App. 1989); Carman v. State, 658 P.2d 131, 137 (Alaska App.
1983); Marrone v. State, 653 P.2d 672, 675-681 (Alaska App. 1982).
We find no such error here. The relevance of Dr. Meloche's
testimony about battered woman syndrome was fairly clear; it
explained why T.R. might stay in an abusive relationship and place
herself in situations where she could be abused. The relevance of
Russell's prior physical abuse of T.R. was also fairly clear; it
explained why T.R. might not physically resist Russell's attempt to
have sexual intercourse with her. Russell does not contend that the
prosecution attempted to misuse this evidence by arguing pure
propensity to the jury.
Moreover, to prove plain error, Russell must show that
there is no apparent reason for his attorney's failure to seek a
limiting instruction. Massey, 771 P.2d at 453; Potts v. State, 712
P.2d 385, 394 n.11 (Alaska App. 1985). In Wortham v. State, 689
P.2d 1133 (Alaska App. 1984), this court rejected a similar claim
of plain error based on a trial court's failure to give a limiting
instruction concerning the defendant's prior criminal conviction.
This court concluded that "[the defense attorney] might have felt
that a limiting instruction was not necessary and would only have
drawn more attention to the conviction." Wortham, 689 P.2d at 1139.
The record in Russell's case leads to the same conclusion.
Russell next argues that the trial court erroneously
allowed T.R.'s friend, Connie Taylor, to testify concerning T.R.'s
first complaint that she had been raped. Russell concedes that
hearsay evidence of a victim's first report of a sexual assault is
admissible. See Greenway v. State, 626 P.2d 1060 (Alaska 1980);
Nitz v. State, 720 P.2d 55, 62 (Alaska App. 1986). However, Russell
argues that Taylor was allowed to exceed the proper scope of this
hearsay exception when she described T.R.'s report in some detail.
Having examined the record, we conclude that even if Taylor's
testimony exceeded the proper scope of the "first complaint" hearsay
exception, the err by Taylor.
Russell's next point on appeal is that the trial court
erroneously precluded Russell from presenting the testimony of his
ex-wife, Rosemary Morris. Morris was prepared to testify that,
during her fourteen years of marriage to Russell, Russell never beat
her. Russell argues that Morris's testimony should have been
admitted under Alaska Evidence Rule 404(a)(1).
Evidence Rule 404(a)(1) allows a defendant to offer
evidence of "a relevant trait of character" to prove that he or she
acted in conformity with that trait of character during the episode
in question. Under Rule 404(a)(1), it appears that Russell was
entitled to introduce evidence of his character for peacefulness or
non-violence; further, Morris appears to have been qualified to
offer an opinion on Russell's character. However, Russell's
attorney expressly told the court that he was not offering Morris's
testimony for this purpose: "I [will not be] asking for any of her
opinions. I'm not [presenting] any character witnesses about Mr.
Russell's þ that he is, you know þ I'm not having her say [that]
he's not a violent person. I'm just saying that she was not
beat[en] in [14] years of marriage."
Thus, even though Russell argues on appeal that Morris's
testimony was admissible under Evidence Rule 404(a)(1) to prove
Russell's character for non-violence, the record shows that
Russell's trial attorney explicitly announced that he had chosen not
to offer Morris's testimony (or any other evidence) for the purpose
of establishing Russell's character. That is, the argument Russell
makes on appeal was not preserved in the trial court.
In the trial court, Russell's sole argument in favor of
Morris's testimony was that if Russell had not beaten or raped an
earlier wife, he was not likely to have beaten or raped a later
wife. With Russell's attorney declaring that he intended to make
no assertion about Russell's character, Judge Jahnke properly
rejected this offer of proof.
Russell's next point on appeal concerns the jury
instruction on the meaning of "recklessly". As noted above, one of
the State's elements of proof was that Russell recklessly
disregarded the fact that T.R. did not consent to the act of sexual
intercourse. Judge Jahnke instructed the jury on the meaning of
"recklessly" as follows:
A person acts "recklessly" with respect to
a circumstance described by the law when the
person is aware of and consciously disregards
a substantial and unjustifiable risk that the
circumstance exists. The risk must be of such
a nature and such a degree that disregard of it
constitutes a gross deviation from the standard
of conduct that a reasonable person would
observe in the situation. A person who is
unaware of a risk of which the person would
have been aware had he or she not been
intoxicated acts recklessly with respect to
that risk.
This language is taken from AS 11.81.900(a)(3). Russell's trial
attorney made no objection to this instruction, but on appeal
Russell argues that this instruction was plain error.
Russell asserts that this instruction contains "convoluted
clauses" and that it is "full of self-importance and devoid of
clarity". We disagree. While this instruction requires a closer
reading than the morning newspaper, the jurors were presumably aware
of their duty to read the instructions closely. Moreover, the
syntax of this instruction is more straightforward than many of the
instructions commonly given to jurors.
Russell argues that the instruction contains "numerous
terms of art". In particular, Russell notes that the instruction
does not define "unjustifiable risk", nor does it define the concept
of a "gross deviation from the standard of conduct that a reasonable
person would observe in the situation". While these phrases may
constitute "terms of art", all the words they comprise are part of
everyday English.
It is true that the instruction did not provide definitive
answers to the questions the jury faced: "What standard of conduct
would a reasonable person have observed in Russell's situation?",
"Given that standard, did Russell take an unjustifiable risk that
T.R. was not consenting to the act of sexual intercourse?", and "If
Russell did deviate from a reasonable standard of conduct, was
Russell's deviation from that standard of conduct minimal or gross?"
These are necessarily questions of fact and of degree; they can not
be answered in a jury instruction. But the challenged instruction
fulfilled its function of informing the jury of the questions that
needed to be asked and answered.
Russell fails to suggest how the terms used in the
challenged instruction might have been better defined, nor does he
cite any case law holding that it is error to instruct a jury using
these terms. In fact, from perusing criminal law texts, it can
readily be seen that the definitions of "recklessly" and "with
criminal negligence" contained in AS 11.81.900(a)(3) and (a)(4) are
far more precise than the words employed at common law to define the
concept of criminal negligence to juries. See, for example, the
discussion found in Wayne R. LaFave and Austin W. Scott, Jr.,
Substantive Criminal Law (1986), sec. 3.7(a)-(b), Vol. 1, pp. 326-
333, and the discussion found in R. Perkins & R. Boyce, Criminal Law
(3rd ed. 1982), p. 107-08. In sum, we find no plain error.
Russell next argues that plain error occurred during the
prosecutor's rebuttal summation to the jury. The issue arose in the
following way:
Russell took the stand at trial. During his cross-
examination, he admitted (without objection) that he had read the
police reports, had discussed them with his attorney, and had
prepared his testimony before he took the stand. Later, during
summation, Russell's attorney argued to the jury that Russell's
version of events should be credited because it was consistent with
the testimony given by two government witnesses: T.R.'s son and a
state trooper.
In rebuttal, the prosecutor argued that the consistency
between Russell's testimony and the boy's testimony did not prove
that Russell's testimony was believable:
I want to talk to you again about Dan
Russell's testimony. [Defense counsel] told
you that Dan Russell's testimony was completely
consistent with what [T.R.'s son] testified to,
[and that] it was completely consistent with
what he had told the troopers before. Of
course it was consistent. Do you think Dan
Russell would get on the stand and place
himself in a position where he could be cross-
examined about the statements he had made
before to the troopers and make inconsistent
ones? Do you think he would get on the stand
and call a 12-year-old child a liar[?]
Of course he's not going to do that. What
he's going to do is take a look at what he can
get away with. And he's going to carefully
craft and tailor his testimony so that it is
consistent. ... Place yourself in the shoes
of Mr. Russell, who has [forcibly] had sex with
... his wife and has been charged with [this
crime]. And in his possession [are] the
testimony that [T.R.] is going to give, [the]
testimony that [her son] is going to give, and
[the] testimony that the trooper is going to
give. How would you testify if you were going
to convince a jury untruthfully that you didn't
do it?
Russell made no objection to this argument. However, on appeal,
Russell asserts that the prosecutor's argument was plain error.
Russell argues that the prosecutor's remarks constituted
unfair comment on Russell's exercise of his rights to attend his
trial and confront his accusers. The State responds that, once
Russell chose to take the stand, the prosecutor and the jury could
properly subject Russell's testimony to the same methods of
evaluation used to assess the credibility of any other witness.
Thus, the State argues, the jury could properly take into account
the fact that Russell was able to prepare for trial knowing what the
government's witnesses were likely to say, as well as the fact that
Russell was able to prepare his own testimony after hearing what
those witnesses in fact did say.
As explained above, "plain error" exists only when the
alleged error would have been obvious to any competent lawyer and
judge. There is little authority in support of Russell's position.
In fact, Russell cites only one case in support of his claim that
the constitution bars this type of prosecutorial comment, and that
case þ State v. Cassidy, 672 A.2d 899 (Conn. 1996) þ was decided a
year after Russell's trial.
In Marrone v. State, 653 P.2d 672, 679 & 681 (Alaska App.
1982), this court clarified that the asserted "plainness" of an
error generally must be evaluated under the legal standards in
existence at the time of the occurrence, not in light of later-
decided cases. Therefore, the fact that Connecticut now outlaws
this type of argument does not establish that plain error was
committed in Russell's trial. Indeed, Russell's appellate counsel
filed her opening brief without spotting this ostensibly obvious
error; she sought special permission to file a supplemental brief
raising this issue after she read the Connecticut court's decision
in Cassidy. This sequence of events provides additional support for
the conclusion that, if the prosecutor's argument was error, the
error was not plain.
Moreover, even after Cassidy, there are apparently only
two jurisdictions that find a constitutional flaw in this type of
prosecution argument: Connecticut and the District of Columbia.
See Dyson v. United States, 418 A.2d 127, 131 (D.C. App. 1980).
While we respect the decisions of these courts, "one swallow does
not make a summer" (EN4), nor can a claim of plain error be
predicated on a constitutional interpretation adopted by two
jurisdictions out of fifty-one.
Finally, whatever might be the merit of a rule prohibiting
this type of argument as an offensive weapon, we would still find
that the prosecutor's argument was not plain error in Russell's
case. In Russell's case, the prosecutor used the argument defen-
sively in response to a claim made by Russell's attorney. The
defense attorney opened up this issue by explicitly arguing that
Russell's version of events should be believed because it was
consistent with the testimony given by two other witnessess. In
response, the prosecutor pointed out that this testimonial
consistency did not necessarily prove Russell's credibility.
Compare Haakanson v. State, 760 P.2d 1030, 1036 (Alaska App. 1988),
and Rodriquez v. State, 741 P.2d 1200, 1203-05 (Alaska App. 1987)
(although the State can not use psychological profile evidence as
an offensive weapon, the State is entitled to introduce profile
evidence in response to a defense claim that the victim's conduct
was inconsistent with a claim of sexual assault or sexual abuse).
We now turn to Russell's sentencing issues.
Russell was a first felony offender convicted of first-
degree sexual assault. Russell did not use a weapon or cause
serious injury to his victim. He therefore faced a presumptive term
of 8 years' imprisonment. See AS 11.41.410(b) and AS 12.55.-
125(i)(1). Judge Jahnke found two aggravating factors under
AS 12.55.155(c): (c)(18)(A) þ that Russell's crime was committed
against his spouse, and (c)(8) þ that Russel had a criminal history
of repeated or aggravated instances of assaultive behavior.
On appeal, Russell challenges aggravator (c)(8). He notes
that a grand jury refused to indict him for the acts of abuse that
resulted in T.R.'s hospitalization in 1993. In fact, Russell had
previously been convicted only once for abusing T.R., and that was
a misdemeanor. Russell's argument, however, appears to be based on
a misunderstanding of the aggravator. When aggravator (c)(8) speaks
of a defendant's "criminal history", this includes incidents that
were not prosecuted or that otherwise did not result in convictions.
Fagan v. State, 779 P.2d 1258, 1260 (Alaska App. 1989).
Russell also argues that, if aggravator (c)(8) was proved,
application of this aggravator to his case would violate "double
jeopardy". Russell perceives a double jeopardy violation because
one element of his offense was recklessly disregarding T.R.'s lack
of consent to an act of sexual intercourse. Russell asserts that
the evidence of his prior physical abuse of T.R. was the only
evidence to support a finding of recklessness, and thus it would be
a second jeopardy to use this same evidence to prove aggravator
(c)(8).
Russell cites no cases to support his assertion that this
dual use of the evidence violates the constitution, and we are aware
of no such cases. We conclude that Russell's double jeopardy
argument is meritless.
Russell also relies on AS 12.55.155(e). This statute
declares that an aggravating factor may not be used to enhance a
defendant's sentence if that factor is a necessary element of the
offense for which the defendant was convicted, or if that factor by
itself requires imposition of a higher presumptive term.
Russell is incorrect when he asserts that, apart from his
prior physical abuse of T.R., there wa Russell to stop þ that she
did not want to have sex with him.
More important, Russell's basic legal premise is
incorrect. It does not violate AS 12.55.155(e) for the State to
rely on the same evidence to prove both the charged offense and an
applicable aggravating factor. AS 12.55.155(e) speaks only to those
cases in which the aggravating factor is a necessary element of the
offense. To prove that Russell committed first-degree sexual
assault, it was not necessary for the State to prove that Russell
had previously engaged in repeated or aggravated assault on T.R..
Evidence of these prior assaults was relevant, but the State did not
have to prove this aggravator in order to convict Russell. Thus,
AS 12.55.155(e) was not violated. See Krasovich v. State, 731 P.2d
598, 600 (Alaska App. 1987) (holding that, because negligent
homicide is not invariably committed by use of a dangerous
instrument, AS 12.55.155(e) does not bar the application of
aggravator (c)(4) to negligent homicide cases).
Russell next argues that Judge Jahnke should have found
mitigator AS 12.55.155(d)(9) þ that Russell's offense was among the
least serious within its class. Russell suggests that, because his
sexual assault upon T.R. "arose in a marital relationship", this may
have "created confusion about intent"; Russell asserts that there
was "significant evidence that Russell believed ... his wife desired
intimacy with him". Whatever the evidence on this point, the jury
found beyond a reasonable doubt that Russell was not confused about
T.R.'s state of mind.
Russell points out that he used no weapon. However, we
can not view the lack of a weapon as a mitigator: if Russell had
used a weapon, he would have faced a higher presumptive term. See
AS 12.55.125(i)(2).
Russell asserts that he did not act with "malicious
intent" or with intent to harm his wife. Russell does not define
what he means by "malicious intent", but we assume he is referring
to some mental state more blameworthy than the recklessness required
to prove first-degree sexual assault. Because proof of recklessness
suffices, the fact that Russell acted without "malicious intent"
does not establish his crime as being among the least serious within
the definition of first-degree sexual assault. Similarly, the fact
that Russell did not intend to physically harm T.R. does not
establish the mitigated nature of his offense. If Russell had
injured T.R., his offense would be aggravated. Woods v. State, 667
P.2d 184, 187-88 (Alaska 1983).
For these reasons, we uphold Judge Jahnke's rejection of
mitigator (d)(9).
Russell next argues that Judge Jahnke should have referred
his case to the three-judge sentencing panel under AS 12.55.165
because imposition of the 8-year presumptive term constituted
manifest injustice. He points out that he had a lengthy, non-
violent marriage to Rosemary Morris and that he "lived for most of
his adult life as a productive [citizen]". However, Russell had a
history of violence toward T.R.. Judge Jahnke believed that Russell
was obsessed with T.R. at the time of the rape, and he further
believed that this obsession potentially continued to control
Russell's thoughts even at sentencing. Judge Jahnke concluded that
Russell's outlook for rehabilitation was "at best guarded", and that
Russell had yet to accept responsibility for his crime. Given this
record, Judge Jahnke did not abuse his discretion when he declined
to send Russell's case to the three-judge panel.
Finally, Russell argues that even if both aggravators were
proved, even if the mitigator was not proved, and even if Judge
Jahnke properly declined to refer Russell's case to the three-judge
sentencing panel, it was still unfair to "increase Mr. Russell's
sentence by a factor of fifty percent" based on the aggravating
factors. Judge Jahnke did not increase the 8-year presumptive term
by fifty percent. He added 4 years, but he suspended them. Thus,
Russell was sentenced to serve only the 8-year presumptive term
mandated by statute for his crime. He faces additional jail time
only if he violates the terms of his probation.
The judgement of the superior court is AFFIRMED.
ENDNOTES:
1. Under AS 11.41.470(8)(A), an act of sexual penetration or
sexual contact occurs without the victim's consent when the victim,
"with or without resisting, is coerced by the use of force ... or
by the express or implied threat of death, imminent physical
injury, or kidnapping to be inflicted on anyone".
2. We again note that, even assuming the State had violated its
duty of pre-trial disclosure, the remedy would have been a
continuance of Russell's trial, not preclusion of Dr. Meloche's
testimony. Des Jardins, 551 P.2d at 187.
3. In two conclusory sentences, Russell argues that testimony
about battered woman syndrome does not meet the Frye test for
admissibility of scientific evidence. Frye v. United States, 293
F. 1013 (D.C. Cir. 1923); Contreras v. State, 718 P.2d 129 (Alaska
1986). This sort of briefing is not adequate to preserve an issue,
Petersen v. Mutual Life Insurance Co. of New York, 803 P.2d 406,
410 (Alaska 1990), particularly an issue that was not raised in the
trial court.
4. Aristotle, Nicomachean Ethics, book 1, chapter 7, quoted in
Barlett's "Familiar Quotations" (Emily Morison Beck, ed., 15th ed.
1980), p. 87.
