NOTICE: This opinion is subject to formal
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
ALBERT L. ALLEN, )
) Court of Appeals No. A-5922
Appellant, ) Trial Court No. 3AN-94-4614 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1547 - September 12, 1997]
______________________________)
Appeal from the Superior Court, Third Judicial
District, Anchorage, Karen L. Hunt, Judge.
Appearances: Christine S. Schleuss, Anchorage,
for Appellant. Kenneth M. Rosenstein, 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.
Albert L. Allen was convicted of second-degree murder,
AS 11.41.110(a), stemming from an altercation with another man.
At his trial, Allen claimed that he acted in self-defense that
the ostensible victim was in fact the first aggressor. The State
countered with evidence that Allen himself had acted violently on
past occasions (thus suggesting that Allen had been the first
aggressor).
Allen's attorney objected to the State's evidence of
Allen's past violent acts. The defense attorney first argued that
the rules of evidence do not allow the State to introduce evidence
of a defendant's character for violence, even after the defense has
introduced evidence of the victim's character for violence.
Alternatively, the defense attorney argued that even if the rules
of evidence authorized the State to introduce evidence of Allen's
character for violence, Alaska Evidence Rule 405 limited the State
to proving Allen's character by means of reputation or opinion
evidence, and it barred the State from introducing evidence of
specific instances of Allen's violence.
As we explain in more detail below, we agree with Allen
that Evidence Rule 405 barred the State from introducing evidence
of particular instances of Allen's violent behavior. We therefore
reverse Allen's conviction.
Facts of the case [Fn. 1]
In the early morning hours of June 15, 1994, Devron
Labatt, Julie Yourell, and Mindy Famulski were driving around
Anchorage. They decided to visit Allen's apartment to speak to him
about a friend of theirs, Michelle Acquino. There was some tension
between Labatt and Allen, because Acquino had had intimate relations
with both men.
Yourell and Labatt came to Allen's door. When Allen
answered, Yourell asked him whether Acquino was present in the
apartment. Allen replied that she was not. Yourell apparently did
not believe Allen. At this point, Labatt (who had been standing to
one side) entered the doorway. It appeared to Allen that Labatt was
holding something behind his back.
Allen repeated that Acquino was not there. In response,
Labatt threatened to kill Allen. Allen then heard a sound like the
cocking of a handgun. Yourell encouraged Labatt to "smoke" Allen
(i.e., shoot him).
Allen retreated into his apartment and closed the door.
He called 911, but during his ensuing conversation with the
emergency dispatcher, Allen told the dispatcher that he would handle
the situation himself. At this point, Allen saw a shadow outside
his bedroom window. Fearing that Labatt was getting ready to shoot
him, Allen retrieved a knife from his kitchen and then crawled out
the bedroom window, knife in hand, to "see what was going on".
As Allen patrolled the area outside his house, he
discovered Labatt kneeling by a parked truck. Labatt ran away, and
Allen gave chase. Eventually, Labatt stopped running and turned to
face Allen. Allen stabbed Labatt; he then dropped the knife and
began a hand-to-hand struggle with Labatt. Labatt died as a result
of the stab wound, and Allen was indicted for first-degree murder.
Evidence of Allen's character for violence: admissibility
At trial, Allen asserted that he had acted in self-defense
when he armed himself with the knife, chased Labatt, and ultimately
stabbed him. To rebut Allen's assertion that Labatt had been the
first aggressor, the State introduced evidence tending to prove
Allen's character for violence specifically, evidence that Allen
had been convicted of assault in 1987 and that Allen had assaulted
Michelle Acquino with a sword or machete in 1993. On appeal, the
parties continue to dispute the admissibility of this evidence.
At common law, when a criminal defendant asserted that the
ostensible victim of an assault or a homicide had in fact been the
initial aggressor, the defendant was entitled to introduce evidence
of the victim's character for violence, as circumstantial evidence
that the victim had acted violently during the episode in question.
The government was then entitled to introduce rebutting evidence of
the victim's character for peacefulness. John W. Strong et al.,
McCormick on Evidence (4th ed. 1992), sec. 193, p. 820-21 & n.1.
One might argue that these two types of character evidence
did not really round out the picture that if the question is to
identify the initial aggressor, the characters of both the defendant
and the victim (for violence or for peacefulness) are equally
relevant. This was the view espoused by Professor John Wigmore.
Wigmore on Evidence (Tillers rev'n 1983), sec. 63, Vol. 1A, pp.
1372-73.
However, in Keith v. State, 612 P.2d 977 (Alaska 1980),
the Alaska Supreme Court rejected the notion that "proof of the
character of the victim and the accused [were] interrelated". Id.,
at 984. The court recognized that "one could plausibly argue ...
[that] evidence of the defendant's character for violence does tend
to 'rebut' proof of the victim's character [for violence] offered
to prove that he was the first aggressor". Id. at 985 n.23 (quoting
Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice &
Procedure, Evidence (1978), sec. 5237, p. 406). The court
nevertheless
concluded that, under the version of Evidence Rule 404(a) that was
in effect in 1980, "the character of the accused and [the character]
of the victim were intended to be separable", so that "the defendant
[could] attack the character of the victim without exposing his own
character to prosecutorial attack". Id.
In 1994, the Alaska Legislature changed this result by
amending Evidence Rule 404(a)(2). Rule 404(a)(2) now authorizes
trial courts to admit evidence of a defendant's character for
violence when this evidence is offered by the government to rebut
a claim that the victim was the first aggressor. See 1994 SLA ch.
116, section 2. In its present form, Rule 404(a)(2) states:
Evidence of a person's character or a
trait of character is not admissible for the purpose of proving that
the person acted in conformity therewith on a particular occasion,
except:
. . .
(2) Character of Victim [sic].
Evidence of a relevant trait of character of a victim of crime
offered by an accused, or by the prosecution to rebut the same, or
evidence of a relevant character trait of an accused or of a
character trait for peacefulness of the victim offered by the
prosecution in a case to rebut evidence that the victim was the
first aggressor[.]
(The language added by the legislature in 1994 is in italics.)
Under this rule of evidence, evidence of Allen's character for
violence was admissible to rebut Allen's claim that Labatt was the
initial aggressor.
Allen argues that the amended version of Evidence Rule
404(a)(2) did not, and lawfully could not, govern the admission of
evidence at his trial. Allen points out that his offense is alleged
to have occurred on June 15, 1994, while the amended version of
Evidence Rule 404(a)(2) did not take effect until three months later
(September 15, 1994). Because the amended version of the rule took
effect after his alleged crime, Allen contends that application of
this evidence rule at his trial would be "retrospective", in
violation of both AS 1.10.090 [Fn. 2] and the ex post facto clauses
of the United States Constitution and the Alaska Constitution. [Fn.
3]
Allen relies on language from Miller v. Florida, 482 U.S.
423, 430; 107 S.Ct. 2446, 2451; 96 L.Ed.2d 351 (1987), where the
Supreme Court stated that the ex post facto clause forbids
application of any retrospective law that "disadvantage[s] the
offender affected by it". He argues that he was disadvantaged by
the amendment of Evidence Rule 404(a)(2) because, under prior
evidence law, the government would not have been able to introduce
evidence of his character for violence. However, the language from
Miller is an over-simplification of the ex post facto test. In
California Dept. of Corrections v. Morales, 514 U.S. 499, 115 S.Ct.
1597, 131 L.Ed.2d 588 (1995), the Supreme Court disavowed Miller's
phrasing of the test, as well as similar phrasing the Court had used
in Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17
(1981), and Lindsey v. Washington, 301 U.S. 397, 57 S.Ct. 797, 81
L.Ed. 1182 (1937). The Morales Court stated:
Our opinions in Lindsey, Weaver, and
Miller suggested that enhancements to the
measure of criminal punishment fall within the ex post facto
prohibition [if] they operate to the "disadvantage" of covered
offenders. See Lindsey, 301 U.S. at 401, 57 S.Ct. at 799; Weaver,
450 U.S. at 29, 101 S.Ct. at 964; Miller, 482 U.S. at 433, 107 S.Ct.
at 2452-53. ... [T]hat language was unnecessary to the results in
those cases and is inconsistent with the framework developed in
Collins v. Youngblood, 497 U.S. 37, 41, 110 S.Ct. 2715, 2718, 111
L.Ed.2d 30 (1990). After Collins, the focus of the ex post facto
inquiry is not on whether a legislative change produces some
ambiguous sort of "disadvantage"[.] ... [Rather, the test is]
whether any [new law] alters the definition of criminal conduct or
increases the penalty by which a crime is punishable.
Morales, 514 U.S. at 506 n.3; 115 S.Ct. at 1602 n.3.
Under Collins v. Youngblood (cited in the just-quoted
passage from Morales), the ex post facto clause prohibits the
retrospective application of laws that "alter the definition of
crimes or increase the punishment for criminal acts". 497 U.S. at
43, 110 S.Ct. at 2719. The amendment of Evidence Rule 404(a)(2)
does neither.
Moreover, we conclude that the amendment to Evidence Rule
404(a)(2) was not applied "retrospectively". Evidence rules
generally do not alter people's rights or liabilities; rather, they
govern the admission of evidence in court proceedings where those
rights and liabilities are litigated. Intuitively, one would
suppose that evidence rules are, by nature, prospective: that is,
newly enacted evidence rules will normally be applied only at court
proceedings held after their enactment. This accords with the rule
that "a court is to apply the law in effect at the time it renders
its decision". Bradley v. Richmond School Board, 416 U.S. 696, 711;
94 S.Ct. 2006, 2016; 40 L.Ed.2d 476 (1974).
It is, of course, possible to argue that any litigation
concerning an event should be governed by the evidence rules that
were in effect at the time of that event. However, the law's
presumption against retrospective legislation is not applied so
broadly.
A statute does not operate "retro-
spectively" merely because it is applied in a
case arising from conduct antedating the statute's enactment [or
because it] upsets expectations based on prior law. Rather, the
court must ask whether the new provision attaches new legal
consequences to events completed before its enactment.
. . .
Changes in procedural rules may often be
applied in suits arising before their enactment[.] ... Because
rules of procedure regulate secondary rather than primary conduct,
the fact that a new procedural rule was instituted after the conduct
giving rise to the suit does not make application of the rule at
trial retroactive.
Landgraf v. USI Film Products, 511 U.S. 244, 269-270, 275; 114 S.Ct.
1483, 1499, 1502; 128 L.Ed.2d 229 (1994) (citations and footnotes
omitted).
With regard to Allen's specific contention his argument
that recently-enacted evidence rules should not be applied at the
trial of a lawsuit based on events that pre-date the enactment of
those evidence rules we note that the United States Supreme Court
has repeatedly rejected this argument in its ex post facto cases.
See Collins v. Youngblood, supra, 497 U.S. at 43 n.3; 110 S.Ct. at
2719 n.3; Thompson v. Missouri, 171 U.S. 380, 387-88; 18 S.Ct. 922,
924-25; 43 L.Ed. 204 (1898). See also State v. Creekpaum, 753 P.2d
1139, 1143 (Alaska 1988), where the Alaska Supreme Court declared
that it "saw no reason to construe [Alaska's] ex post facto
prohibition ... differently from [its] federal [counterpart]".
Under these precedents, we conclude that AS 1.10.090 (the
statutory prohibition against retrospective legislation) does not
bar a trial judge from applying a recently-enacted evidence rule at
the trial of a lawsuit based on events that pre-date the enactment
of the evidence rule. We further conclude that the ex post facto
clause does not give Allen the right to insist on application of the
evidence rules that were in effect on the date of his alleged crime.
Thus, the trial judge was correct when she applied Evidence Rule
404(a)(2) at Allen's trial.
Allen next argues that the amended version of Evidence
Rule 404(a)(2) denies him the due process of law guaranteed by the
the Fourteenth Amendment to the United States Constitution and
Article I, Section 7 of the Alaska Constitution. Allen basically
argues that evidence of a defendant's bad character is invariably
so prejudicial that no jury will be able to return a fair verdict
after hearing it. We conclude that Allen's due process attack is
baseless.
As courts and commentators have repeatedly recognized,
evidence of a person's character is relevant to assessing their
likely actions. See Wigmore on Evidence (Tillers rev'n 1983),
sec. 55,
Vol. 1A, pp. 1157-1160; McCormick on Evidence (4th ed. 1992),
sec. 188, p. 793. In particular, evidence of a defendant's good or
bad
character is relevant when determining the likelihood that the
defendant did or did not commit a crime.
Allen objects that this use of character evidence as
circumstantial proof of a defendant's likely conduct during a
particular episode amounts to "propensity" evidence, a type of
evidence normally prohibited. This is true, but it is not a valid
objection to admission of the evidence. As we explained in
McCracken v. State, 914 P.2d 893, 898 (Alaska App. 1996), character
evidence admitted under Evidence Rule 404(a)(2) "is introduced for
the very purpose normally barred by the evidence rules: to prove
that [a person] acted in conformity with his or her [character]
trait".
The law traditionally allowed criminal defendants the
option of deciding whether to allow litigation of their character.
A defendant could open the subject of character by introducing
evidence of his or her good character; once this occurred, the
government could introduce rebuttal evidence of the defendant's bad
character. Michelson v. United States, 335 U.S. 469, 479; 69 S.Ct.
213, 220; 93 L.Ed.2d 168 (1948). However, the government was not
permitted to act first by independently introducing evidence of the
defendant's bad character. Id., 335 U.S. at 475-76, 69 S.Ct. at
218-19. This bar was based, not on the theory that the defendant's
character lacked relevance, but rather on the policy consideration
that a jury might be tempted to relax the government's normal burden
of proof if they were convinced that the defendant was a bad person:
[Evidence of a defendant's bad character] might
logically be persuasive that he is by
propensity a probable perpetrator of the crime. The inquiry [into
character] is not rejected because character is irrelevant; on the
contrary, it is said to weigh too much with the jury and to so
[]persuade them ... to prejudge one with a bad general record and
deny him a fair opportunity to defend himself against [the]
particular charge.
Michelson, 335 U.S. at 475-76; 69 S.Ct. at 218. See also Wigmore
on Evidence, supra, sec. 54.1, Vol. 1A, pp. 1150-56.
Because of the competing relevance and potential prejudice
of character evidence, the common law put the weighing in the
defendant's hands: if the defendant judged that he or she would
ultimately benefit from a litigation of his or her character, then
character evidence (both good and bad) would be heard. This common-
law rule itself strongly suggests that Allen's due process argument
is misguided. If evidence of a defendant's bad character were
invariably so prejudicial as to destroy any possibility of a fair
trial, then the common-law rule and the former version of Alaska
Evidence Rule 404(a) would be unconstitutional since they allowed
the prosecution to introduce evidence of a defendant's bad character
(after the defendant "opened the door" by introducing evidence of
his or her good character).
Moreover, it is important to note that the amended version
of Evidence Rule 404(a)(2) does not eliminate the weighing of
relevance versus potential prejudice. Instead, under Evidence Rule
404(a)(2)(i)-(iii), this weighing is now done by the court. When
either party seeks to admit character evidence under Rule 404(a)(2),
that party must first make application to the court. See Evidence
Rule 404(a)(2)(i). The admission of this evidence is then governed
by the following procedure:
(ii) The court shall conduct a hearing
outside the presence of the jury in order to determine whether the
probative value of the evidence is outweighed by the danger of
unfair prejudice, confusion of the issues, or unwarranted invasion
of the privacy of the victim. The hearing may be conducted in
camera where there is a danger of unwarranted invasion of the
privacy of the victim.
(iii) The court shall order what evidence
may be introduced and the nature of the questions which shall be
permitted.
It is clear, from these provisions, that the legislature
recognized the potential danger of introducing character evidence
at a criminal trial; they took steps to ensure that, before
character evidence was admitted, the trial judge would actively
weigh the probative force of the evidence against its potential for
unfair prejudice. Allen's due process attack on Rule 404(a)(2) thus
reduces to the following question:
whether it is acceptable to deal with the
potential for abuse [of character evidence] through
nonconstitutional sources like the ... [r]ules of [e]vidence, or
whether the introduction of this type of evidence is so extremely
unfair that its admission violates "fundamental conceptions of
justice."
Dowling v. United States, 493 U.S. 342, 352; 110 S.Ct. 668, 674; 107
L.Ed.2d 708 (1990) (footnote and citation omitted).
As explained above, courts and commentators universally
recognize that character evidence is relevant because it is circum-
stantial proof of a person's likely actions. For this reason, the
law has traditionally allowed character evidence to be admitted at
criminal trials to prove the likely identity of the initial
aggressor both as circumstantial proof of the victim's actions
and, at the defendant's option, as circumstantial proof of the
defendant's actions. Although the Alaska Legislature has broadened
the instances in which character evidence can be admitted, the
underlying relevance of the evidence remains unchanged. Moreover,
the legislature has specifically provided a judicial safeguard
against abuse of character evidence. We conclude that Evidence Rule
404(a)(2) does not violate the guarantee of due process.
Evidence of Allen's character for violence: permissible
methods of proof
Because Evidence Rule 404(a)(2) authorized the State to
offer evidence of Allen's character for violence, the remaining
question is whether the State was authorized to prove Allen's
character for violence by introducing evidence of his specific acts
of violence. We conclude that the answer is "no": in criminal
cases involving claims of self-defense, Evidence Rules 404(a)(2) and
405 allow only reputation and opinion evidence to prove the
character of the defendant or the victim.
While Evidence Rule 404(a) lists the instances in which
character evidence is admissible to prove that a person acted in
conformity with their character, another evidence rule Evidence
Rule 405 governs the method of proof in "all cases in which
evidence of character or a trait of character ... is admissible".
Under Rule 405(a), when a party seeks to prove a person's character
or trait of character,
proof may be made by testimony as to [the
person's] reputation in any community or group in which the
individual habitually associated or by testimony in the form of an
opinion.
Except for cases governed by Rule 405(b) (discussed
below), these two methods of proof reputation evidence and opinion
evidence are intended to be the sole means by which a party can
establish a person's character. See Commentary to Evidence Rule
405(a), first, third, and fifth paragraphs; Commentary to Evidence
Rule 405(b), first paragraph.
Rule 405(a) does allow inquiry into specific instances of
a person's conduct, but only during cross-examination. That is,
when a party attempts to prove a person's character by presenting
a "character witness" who either has an opinion concerning the
person's character or who knows of the person's reputation in the
community, the opposing parties are allowed on cross-examination to
inquire into the person's specific acts (to the extent these acts
are relevant to the character trait being litigated). Thus,
evidence of a person's specific acts is admissible to rebut an
assertion concerning a person's character, but evidence of specific
acts is normally not admissible to establish character.
The exception to this general rule is found in Evidence
Rule 405(b):
(b) Specific Instances of Conduct. In
cases in which [a person's] character or a trait of character is an
essential element of a charge, claim, or defense, proof may also be
made [by introducing evidence] of specific instances of [the
person's] conduct.
As explained in the commentary to Evidence Rule 405(b), the
distinction drawn by Rule 405(b) is between (a) cases in which a
person's character is being used as circumstantial evidence of their
likely conduct on a particular occasion, and (b) cases in which a
person's character or trait of character is an essential element of
a claim or defense that is, when a litigant must, as a matter of
law, prove a person's character in order to prevail. The first
paragraph of the commentary states:
Of the three methods of proving character
provided by the rule, evidence of specific instances of conduct is
the most convincing. At the same time[,] it poses the greatest
capacity to arouse prejudice, to confuse, to surprise, and to
consume time. Consequently the Rule confines the use of evidence
of this kind to cases in which character is, in the strict sense,
in issue and hence deserving of a searching inquiry. When character
is used circumstantially and hence occupies a lesser status in the
case, proof may be only by reputation and opinion. These latter
methods are also available when character is in issue. This
treatment is, with respect to specific instances of conduct and
reputation, [in accord with] conventional contemporary common law
doctrine. McCormick [on Evidence] (2d ed. [1972])[,] sec.sec. [186-
]187[, pp. 442-43].
In Allen's case, the charge was murder and the defense was
self-defense. As part of his defense of self-defense, Allen
asserted that Labatt had been the first aggressor in their
encounter. See AS 11.81.335(a) and AS 11.81.330(a). Under Evidence
Rule 404(a)(2), Allen was authorized to support this assertion with
evidence of Labatt's character for violence. Similarly, once Allen
asserted that Labatt had been the first aggressor, the State was
authorized to offer evidence concerning Allen's own character for
violence.
However, neither Labatt's character for violence nor
Allen's character for violence was "an essential element" of the
State's murder charge or of Allen's self-defense defense. The jury
could adopt Allen's self-defense theory even if they concluded that
Labatt was not a characteristically violent man; that is, a charac-
teristically peaceful person may yet be an aggressor. Similarly,
the jury could acquit Allen under a self-defense theory even if they
concluded that Allen was characteristically given to violence; the
defense of self-defense is available to all, even to character-
istically violent people. By the same token, the jury could reject
Allen's claim of self-defense and convict Allen of murder even if
they disbelieved the State's evidence of Allen's violent character
and instead concluded that Allen was, by nature, a peaceful man.
In sum, when a defendant raises a claim of self-defense
and the court admits evidence of either the victim's or the
defendant's character for violence or non-violence, this evidence
is not admitted to prove an essential element of the crime or of the
defense. The character evidence is relevant, not because character
is an essential element of self-defense, but because the
participants' character is circumstantial proof of the participants'
likely conduct during the episode in question. This being so,
Evidence Rule 405 limits the parties to the use of reputation or
opinion evidence when they seek to prove the victim's or the
defendant's character.
Our conclusion is reinforced by the interpretation given
to Federal Evidence Rule 405. (Alaska's Evidence Rule 405 is
modeled upon Federal Evidence Rule 405. See Commentary to Alaska
Evidence Rule 405, third paragraph.) In cases involving claims of
self-defense, when a person's character for violence or non-violence
is being litigated, Federal Rule 405 has consistently been
interpreted as limiting the proof to reputation and opinion
evidence, and as prohibiting proof of specific acts. See Stephen
A. Saltzburg, Michael M. Martin, and Daniel J. Capra, Federal Rules
of Evidence Manual (6th ed. 1994), Rule 405, p. 448; Jack B.
Weinstein & Margaret A. Berger, Weinstein's Evidence (2nd ed. 1997),
sec. 405.05[03], Vol. 2, pp. 405-39 to 405-40; Christopher B.
Mueller & Laird C. Kirkpatrick, Federal Evidence (2nd ed. 1994),
sec. 119, Vol. I, pp. 709-710.
For federal cases recognizing and applying this
limitation, see United States v. Keiser, 57 F.3d 847, 855-57 (9th
Cir. 1995), cert. denied, 116 S.Ct. 676, 133 L.Ed.2d 525 (1995)
(after careful analysis of this point of law, the court concluded
that Rule 405 barred the defendant from introducing evidence of the
victim's specific acts to prove the victim's aggressive character,
because the victim's character was not an essential element of the
defendant's self-defense claim); United States v. Talamante, 981
F.2d 1153, 1156 (10th Cir. 1992) (same); Perrin v. Anderson, 784
F.2d 1040, 1045 (10th Cir. 1986) (same); United States v. Barry, 814
F.2d 1400, 1402-04 (9th Cir. 1987) (defendant, attempting to prove
his own good character, could not introduce evidence of various
specific instances of his good conduct); United States v. Hill, 40
F.3d 164, 168-69 (7th Cir. 1994), cert. denied, 514 U.S. 1029, 115
S.Ct. 1385, 131 L.Ed.2d 238 (1995) (same); United States v. Gravely,
840 F.2d 1156, 1164 (4th Cir. 1988) (same); United States v. Piche,
981 F.2d 706, 712-13 (4th Cir. 1992) (defendant could not introduce
evidence of specific acts to prove the victims' character for
violence because the victims' character was relevant only as
circumstantial evidence of their likely actions); United States v.
Kills Ree, 691 F.2d 412, 414 (8th Cir. 1982) (same).
State courts construing their own counterparts to Federal
Evidence Rule 405 reach the same conclusion: Halfacre v. State, 639
S.W.2d 734, 735-36 (Ark. 1982), and McClellan v. State, 570 S.W.2d
278, 279-280 (Ark. 1978); Klaes v. Scholl, 375 N.W.2d 671 (Iowa
1985); State v. Doherty, 437 A.2d 876, 877-78 (Me. 1981); State v.
Buchanan, 431 N.W.2d 542, 551 (Minn. 1988); McDonald v. State, 538
So.2d 778, 779-780 (Miss. 1989); State v. Arney, 731 S.W.2d 36, 40
(Mo. App. 1987); State v. McCarter, 604 P.2d 1242, 1245-46 (N.M.
1980); Dahlen v. Landis, 314 N.W.2d 63, 70-71 (N.D. 1981); State v.
Woodson, 382 S.E.2d 519, 522-24 & n.5 (W.Va. 1989); Werner v. State,
226 N.W.2d 402, 405-06 & n.6 (Wis. 1975).
We recognize that this court's decision in Amarok v.
State, 671 P.2d 882 (Alaska App. 1983), is seemingly at odds with
this interpretation of Evidence Rule 405. Amarok was a self-defense
case in which the defendant unsuccessfully tried to introduce
evidence of the victim's specific acts of violence. We held that
this specific-act evidence should have been admitted because it "was
necessary to enable the jury to determine how much force a person
with Amarok's knowledge of [the victim's] propensity for violence
would have felt compelled to use in self-defense". Id., 671 P.2d
at 883.
There is nothing wrong with this holding. However, this
court's ensuing discussion of the law of evidence contains some
inexact language. In particular, we stated in Amarok that, in self-
defense cases,
specific instances of the victim's prior
[violent] conduct are considered to be admissible under Evidence
Rule 405(b) to show (1) who was the aggressor, in which case the
defendant's knowledge of the [prior] incident[s] is immaterial, and
(2) that [the] defendant acted reasonably in using the degree of
force he did, in which case [the] defendant must know of the
victim's past acts of violence.
Amarok, 671 P.2d at 883-84 (citation omitted). This passage
addresses two different points of evidence law. Only the second
point (introduction of evidence to prove the defendant's state of
mind and the reasonableness of the defendant's actions) was at issue
in Amarok. The first point of evidence law (introduction of
evidence to prove the victim's character for violence, as
circumstantial evidence of the victim's actions) was not at issue
in Amarok and, as occasionally happens when courts make pronounce-
ments about matters that are not at issue, we misdescribed this area
of the law.
The issue in Amarok, as stated in the holding, was
"Amarok's knowledge of [the victim's] propensity for violence".
Amarok held that evidence of a defendant's knowledge of the victim's
specific acts of violence is admissible for this purpose. This
holding is unobjectionable.
When a defendant is aware of the victim's past acts of
violence, and evidence of those acts of violence is offered to prove
the reasonableness of the defendant's use of defensive force, this
evidence of the victim's specific acts is not barred by Evidence
Rule 405 because the evidence is not being used as "character
evidence" of the type governed by Evidence Rules 404(a) and 405.
We recently explained this distinction in McCracken v. State, supra:
[W]hen evidence of the victim's character for
violence is introduced ... to prove the reasonableness of the
defendant's fear of imminent deadly attack[], it is not being used
as "character evidence" in the usual sense. Although evidence of
a victim's reputation for violence or a victim's past acts of
violence may, indeed, tend to show that the victim had a violent
character, the primary relevance of the evidence is not to prove the
victim's violent character, nor to prove that the victim acted in
conformity with a violent character at the time of the incident in
question. Rather, the primary relevance of this evidence is to
prove the defendant's state of mind when he or she used deadly force
against the victim in particular, the reasonableness of the defen-
dant's fear that the victim was about to attack with deadly force.
. . .
As Wigmore explains [J.H. Wigmore,
Evidence in Trials at Common Law (Chadbourne
rev'n 1979), sec. 248], "the real purpose [of this evidence] is
merely to show such conduct as would naturally excite apprehension
[on the
part of the defendant], whether it objectively indicates a fixed
trait of [the victim's] character or not." [Vol. 2,] p. 71.
McCracken, 914 P.2d at 898-99. (In the second paragraph of this
quote, the first and last bracketed texts have been added; the
middle three are in the original.)
The law is different, however, when the question is to
identify the first aggressor, and when evidence of a participant's
character for violence is offered as circumstancial evidence tending
to show that this person, if they acted true to character, was
probably the first aggressor. Amarok erroneously asserts that
evidence of a person's specific acts of violence is admissible for
this purpose as well; it is not.
At common law, courts reached differing conclusions about
the admissibility of specific-act evidence to establish character
for violence and, thus, to identify the likely first aggressor. The
Alaska Supreme Court recognized this split in Pedersen v. State, 420
P.2d 327, 336 (Alaska 1966), but did not resolve the issue.
Fourteen years later, in Loesche v. State, 620 P.2d 646 (Alaska
1980), the supreme court again confronted this issue but did not
need to resolve it. The defendant in Loesche wished to introduce
evidence that the victim had engaged in violent conduct toward third
parties. The supreme court offered some general observations about
the law of evidence in this area:
[E]vidence establishing the turbulent or
dangerous character of the victim is deemed admissible in many
jurisdictions, and may be shown by reputation and opinion testimony,
and, occasionally, by particular instances of violent conduct.
Given the proper foundation, most of these jurisdictions allow
testimony concerning specific instances of the victim's past conduct
when it is offered either to corroborate the reasonableness of the
defendant's alleged apprehensions of the victim or to corroborate
the defendant's self-defense claim by demonstrating the probability
that the victim, rather than the defendant, was the actual
aggressor.
Loesche, 620 P.2d at 650-51 (footnotes and citations omitted).
However, as in Pedersen, the court did not need to resolve Alaska
law on this point. Instead, the court concluded that even if the
evidence was potentially admissible, the trial judge acted within
his discretion in excluding the evidence: Loesche had already
introduced testimony "about a recent threat the victim had made to
[Loesche] at a local bar", and the trial judge had already allowed
the defense to present several character witnesses (including a
state trooper), who testified that the victim was known as a violent
person. Loesche, 620 P.2d at 651.
Loesche, like Pedersen, was decided under the law of
evidence as it existed before the promulgation of Alaska's current
rules of evidence. [Fn. 4] When the court promulgated the current
evidence rules in particular, Evidence Rule 405 the court
resolved this issue of evidence law. As we have already explained,
Evidence Rule 405(a) allows a person's character for violence to be
established through reputation and opinion evidence in all cases;
however, under Evidence Rule 405(b), a party propounding or opposing
a claim of self-defense may not offer evidence of specific acts of
violence to prove a person's character for violence.
For these reasons, we conclude that Alaska Evidence Rule
405 did not permit the State to introduce evidence of Allen's
specific acts of violence (his 1987 assault conviction and his 1993
attack on Michelle Acquino) to prove Allen's character for violence.
Having reviewed the record of Allen's trial, we further conclude
that there is a substantial possibility that this wrongly admitted
evidence affected the jury's verdict. Allen is therefore entitled
to a new trial. Love v. State, 457 P.2d 622, 629-631 (Alaska 1969).
The judgement of the superior court is REVERSED.
FOOTNOTES
Footnote 1:
Because the ultimate issue in this case is whether Allen
acted in self-defense, the facts are presented in the light most
favorable to Allen. Compare Paul v. State, 655 P.2d 772, 775
(Alaska App. 1982) (a defendant is entitled to an instruction on
self-defense if the evidence, "viewed in the light most favorable
to the accused, might arguably lead a juror to entertain a
reasonable doubt as to the defendant's guilt").
Footnote 2:
"No statute is retrospective unless expressly declared
therein."
Footnote 3:
United States Constitution, Art. I, Sec. 10; Alaska
Constitution, Art. I, Sec. 15.
Footnote 4:
Loesche was decided in October 1980, a little over one year
after the effective date of the current rules of evidence (August
1, 1979). See Supreme Court Order 364. However, the court
specifically noted that the older rules of evidence were in effect
at the time of Loesche's trial. Loesche, 620 P.2d at 649.
