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THE COURT OF APPEALS OF THE STATE OF ALASKA
JON McINTYRE, )
) Court of Appeals No. A-6065
Appellant, ) Trial Court No. 4FA-S95-2839CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1521 - March 28, 1997]
)
Appeal from the District Court, Fourth Judicial District,
Fairbanks, Charles R. Pengilly, Judge.
Appearances: James H. Cannon, Assistant Public Defender,
Fairbanks, and John B. Salemi, Public Defender, Anchorage, for
Appellant. Sara L. Gehrig, Assistant District Attorney, Harry L.
Davis, District Attorney, Fairbanks, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and Mannheimer, Judges.
COATS, Judge.
A jury convicted Jon McIntyre of fourth-degree assault,
a class A misdemeanor. AS 11.41.230. McIntyre appeals, contending
that District Court Judge Charles R. Pengilly erred by prohibiting
cross-examination into a witness's potential bias in favor of the
victim. We reverse.
In the evening of August 9, 1995, McIntyre's wife, L.M.,
was playing Scrabble at the home of a neighbor, S.D., a woman with
whom the McIntyres socialized. The three had been drinking
together at the McIntyre home earlier in the evening. McIntyre
arrived at S.D.'s home and, after a further period of socializing
and drinking, stated that he wanted to take the two young McIntyre
children, who were spending the night at S.D.'s home with S.D.'s
children, back to the McIntyre home. L.M. disagreed, saying that
their sleeping children should not be disturbed and should remain.
L.M. testified that she and McIntyre eventually agreed
that their children would stay at S.D.'s house, and the two left
S.D.'s house together; however, as soon as they were outside,
McIntyre began to yell at L.M. and punched her in the face with his
fist, choked her with both hands, and threatened to kill her.
McIntyre, in contrast, testified that he went outside first to
start the McIntyres' car to drive their children home, and that as
he returned to the house, L.M. punched him several times in the
face and jumped onto him. He testified that he struck her once in
the face in self-defense and "flipped" her off of him. In any
event, S.D., who was still inside her house, saw the commotion,
telephoned the troopers, and called out that she had done so.
McIntyre then fled the scene. The troopers located McIntyre three
days later.
After L.M. testified, S.D. corroborated L.M.'s version of
the events. S.D. testified that McIntyre and L.M. left her house
after arguing about the children. She then heard L.M. screaming
and saw through the picture window that McIntyre was choking L.M.
S.D. testified, on direct examination, that she had known and been
friends with McIntyre years longer than with L.M., and that being
involved in the trial placed her in an "uncomfortable position"
because she did not "want to take sides" with either friend against
the other. S.D. testified that she was simply telling the truth
about what she had seen. S.D. also testified that she had not
cared one way or the other about the McIntyres' argument concerning
where their children would stay the night. On redirect
examination, S.D. testified that she was not fabricating her
testimony and that she felt loyalty to both her friends, L.M. and
McIntyre, and was not willing to lie on either friend's behalf
against the other.
After S.D.'s testimony and cross-examination, McIntyre
asked Judge Pengilly, out of the presence of the jury, to allow him
to inquire into and testify on the issue of S.D.'s bias in favor of
L.M. McIntyre claimed, and offered to testify, that L.M. was
bisexual, and that just before the assault in this case he had seen
through the picture window that L.M. and S.D. were "making out."
He claimed that L.M. and S.D. were involved in a romantic
relationship.
Judge Pengilly asked McIntyre to specify what probative
value such testimony would have regarding any material fact in the
case. McIntyre responded that evidence of S.D.'s bias toward L.M.
would cast doubt on S.D.'s corroborating account of certain
disputed details of the evening, such as whether McIntyre ever re-
entered S.D.'s house or handed S.D. L.M.'s glasses.
The prosecutor did not dispute the allegation that L.M.
was bisexual but represented that S.D. was heterosexual. The
prosecutor contended that McIntyre sought merely to prejudicially
stigmatize S.D. and L.M. The prosecutor also argued that even if
S.D. had been involved in a romantic relationship with L.M. and was
biased, this was not sufficiently relevant because the details of
S.D.'s testimony that McIntyre sought to question went only to
collateral issues. Judge Pengilly ruled that he saw minimal or no
probative value in evidence that S.D. had given biased testimony
about matters "verg[ing] on the trivial," such as whether McIntyre
had handed S.D. L.M.'s glasses. He found that the potential
prejudicial effect of evidence of L.M.'s sexual orientation was
"really extreme" and "enormous," especially in light of a recent
controversy in the community about sexual orientation, and so ruled
that such evidence would not be admitted.
McIntyre appeals, contending that Judge Pengilly erred by
refusing to allow him to inquire into S.D.'s possible bias. A
defendant's constitutional right to confront and cross-examine
witnesses is violated when a trial court's restrictions on cross-
examination impair the defendant's ability to establish the
witness's bias. Davis v. Alaska, 415 U.S. 308, 316-18 (1974);
Johnson v. State, 889 P.2d 1076, 1080 (Alaska App. 1995); Wood v.
State, 837 P.2d 743, 745-47 (Alaska App. 1992). However, a trial
judge has broad discretion to exclude relevant evidence of a
witness's bias under Alaska Evidence Rule 403 if the probative
force of that evidence is outweighed by the danger of unfair
prejudice. Kameroff v. State, 926 P.2d 1174, 1179 (Alaska App.
1996); Beltz v. State, 895 P.2d 513, 518 (Alaska App. 1995);
Johnson, 889 P.2d at 1080-81. Trial judges retain wide latitude to
impose reasonable limits on cross-examination to protect against
prejudice. Kameroff, 926 P.2d at 1179-80; Wood, 837 P.2d at 746-
47. We will not reverse a trial judge's exercise of discretion in
regulating cross-examination into bias unless the jury did not
otherwise receive information adequate to allow it to evaluate the
bias and motives of a witness. Beltz, 895 P.2d at 518; Johnson,
889 P.2d at 1080; Stumpf v. State, 749 P.2d 880, 901 (Alaska App.
1988).
On appeal, McIntyre does not challenge Judge Pengilly's
finding that evidence of and inquiry into L.M.'s and S.D.'s sexual
orientation and possible relationship had a potential for "really
extreme" and "enormous" prejudice. Rather, McIntyre contends that
such evidence was highly probative of S.D.'s bias, and that in this
case Judge Pengilly unreasonably prohibited all inquiry into the
specific area of S.D.'s possible bias due to a sexual relationship
with L.M. See Kameroff, 926 P.2d at 1179-80 (reversing because the
court precluded all inquiry into a witness's probation status);
Wood, 837 P.2d at 746-47 (reversing because the court precluded all
inquiry into a witness's informal juvenile probation status under
a conduct agreement).
On consideration of the record in this case, we agree
that Judge Pengilly abused his discretion by precluding all inquiry
into S.D.'s possible bias in favor of L.M. The evidence of S.D.'s
bias had significant probative value. While Judge Pengilly could
properly find that evidence of a sexual relationship beween L.M.
and S.D. could have prejudiced the jury against them, he erred in
ruling that this potential prejudice outweighed the probative value
of the evidence.
The bias of a witness toward a party is always relevant
to the jury's consideration of the case; it is never a collateral
issue. Wood, 837 P.2d at 745; Jackson v. State, 695 P.2d 227, 230
(Alaska App. 1985). If a witness has a romantic relationship with
a party, or any other emotional attachment to a party, that fact is
clearly a source of potential bias; the jury should be aware of
such evidence in order to fully evaluate the witness's testimony.
This is true regardless of whether the witness and the party are of
the same sex or of opposite sexes.
We recognize that evidence of same-sex romantic relation-
ships may tend to prejudice or inflame the jury. Trial judges have
considerable discretion to regulate the presentation of this
evidence so as to limit its unfair prejudicial impact. However,
when evidence of a romantic relationship tends to establish a
witness's potential bias, and no other evidence is available to
establish the same bias, a court may not wholly exclude inquiry
into the relationship. (EN1)
We caution that the proponent of such evidence is not
entitled to present baseless accusations or unfounded speculation.
The trial judge may require a party to give advance notice of its
intent to introduce such evidence. As a foundational matter, the
proponent of any potentially prejudicial evidence should normally
be required to establish a good-faith factual basis before
commencing inquiry into the area. In the present case, however,
McIntyre clearly offered to provide a factual basis supporting
inquiry into the possible existence of a romantic relationship
between L.M. and S.D. McIntyre offered to take the stand and
testify that his wife was bisexual and that he had personally
observed L.M. and S.D. "making out." Such voir dire testimony
would have established a foundation for allowing McIntyre to cross-
examine S.D. about these matters.
The state contends that, even if S.D. and L.M. had been
sexually involved, this would not have been important in evaluating
S.D.'s testimony. However, although S.D. did not testify that she
knew who first assaulted whom, S.D. did testify that she looked out
the window and saw McIntyre choking L.M. McIntyre denied ever
choking L.M. or placing his hands around her neck. The issue of
whether McIntyre choked L.M. was disputed at trial and did not
"verge on the trivial." This point was clearly important to the
jury's appraisal of McIntyre's claim of self-defense, the central
disputed issue in the case.
Evidence that S.D. was romantically involved with L.M.,
and thus was potentially biased in favor of L.M., would be relevant
both to the jury's assessment of S.D.'s credibility and to its
assessment of McIntyre's guilt or innocence. Judge Pengilly
precluded McIntyre from presenting any evidence on this point. We
conclude that this decision was an abuse of discretion, and we
therefore REVERSE McIntyre's conviction.
ENDNOTES:
1. See Orkin Exterminating Co. v. McIntosh, 452 S.E.2d 159, 165
(Ga. App. 1994); see also State v. Wargo, 680 P.2d 206, 209 (Ariz.
App. 1984); Watkins v. State, 426 S.E.2d 238, 243 (Ga. App. 1992);
Vaughn v. State, 888 S.W.2d 62, 74-75 (Tex. App. 1994); Riggins v.
State, 808 P.2d 535, 539 (Nev. 1991), rev'd on other grounds, 504
U.S. 127 (1992); State v. Becraft, 236 S.E.2d 306, 306-07 (N.C.
App. 1977). But see People v. Whalen, 213 N.W.2d 116, 122-24
(Mich. 1973); State v. Wilfong, 315 S.E.2d 753, 755-56 (N.C. App.
1984) (lesbian relationships irrelevant or unsupported in both
cases).
Cf. Kvasnikoff v. State, 674 P.2d 302, 305-06 (Alaska App.
1983) ("The trial judge in this case had the difficult task of
weighing the probative value of evidence which indicated that the
defendant had engaged in other homosexual conduct, against the
danger of undue prejudice, i.e., that the jury might presume
consent simply as a result of their own prejudices or hostilities
against homosexuals, and confusion of the issues. . . . The trial
judge in this case was understandably concerned that the main issue
in the trial would become the sexuality of the victim rather than
the conduct of the defendant on the occasion in question."). The
Kvasnikoff case, however, is distinguishable from this case.
Kvasnikoff sought to introduce evidence of the rape victim's
homosexuality in order to bolster his consent defense. This court
upheld the trial court's decision to exclude the evidence for that
purpose as irrelevant under the rape shield law. Kvasnikoff did
not seek to introduce the evidence to establish a witness's bias.
Id. at 306 n.7. This court later noted that the rape shield law is
inapplicable to evidence directly intended to establish bias.
Daniels v. State, 767 P.2d 1163, 1167 n.2 (Alaska App. 1989).
