NOTICE: This opinion is subject to formal
correction before publication in the Pacific Reporter. Readers are
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
CHARLES SMITHART, )
) Court of Appeals No. A-5138/5378
Appellant, ) Trial Court No. 3GL-91-164 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1553 - October 31, 1997]
______________________________)
Appeal from the Superior Court, Third Judicial
District, Glennallen, Glen C. Anderson, Judge.
Appearances: Larry Cohn, Anchorage, for
Appellant. John A. Scukanec, 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.
COATS, Judge, dissenting.
Charles Smithart appeals his convictions for kidnapping,
AS 11.41.300(a)(1)(c), first-degree sexual assault, AS 11.41.-
410(a)(1), and first-degree murder, AS 11.41.100(a)(1). He
questions three of the trial court's evidentiary rulings. Having
reviewed the record, we conclude that two of the trial court's
rulings were correct and the error in the third ruling was harmless.
We therefore affirm Smithart's conviction.
Factual background
On the afternoon of August 22, 1991, at approximately 3:00
p.m., eleven-year-old M.L. disappeared as she walked to a friend's
house near the Tazlina Trading Post, a store located on the
Richardson Highway between Glennallen and Copper Center, near the
confluence of the Tazlina and Copper Rivers. She was last seen at
2:50 p.m., walking along Tazlina Terrace Drive. Around 4:30, M.L.'s
father began searching the area. An hour later, still unable to
find his daughter, he contacted an Alaska State Trooper and told him
that his daughter was missing.
Beginning that evening, law enforcement officers and
members of the community participated in various search efforts.
Ten days later, on September 1st, M.L.'s body was found in a wooded
area known as the Indian Subdivision, located between Tazlina
Terrace Drive and Copper Valley School Road. M.L.'s body bore
numerous bruises and abrasions, including linear marks on her ankles
indicating that she had been tied up. She was partially disrobed,
and a later examination revealed that she had been sexually
assaulted. She had been shot twice in the head.
The ensuing criminal investigation ultimately focused on
Smithart, a retired pipeline worker who lived at Mile 105« of the
Richardson Highway, approximately six miles from the scene of the
abduction. David DeForest reported seeing Smithart's truck turning
from the Richardson Highway onto Tazlina Terrace Drive at
approximately 3:00 p.m. on the day of the crime. Smithart's cousin,
Tanya Nutter, reported seeing Smithart's truck driving on Copper
Valley School Road two hours later (at approximately 5:00 p.m.),
headed out of the Indian Subdivision toward the Richardson Highway.
These two roads, Tazlina Terrace Drive and Copper Valley School
Road, are the only roads off the Richardson Highway affording direct
access to (and egress from) the Indian Subdivision.
Smithart was interviewed by the state troopers, who
confronted him with their suspicions that he had been involved in
the crime. Smithart declared that he was invariably home at 3:00
in the afternoon so that he could watch his favorite television
shows ("Wheel of Fortune" and "Jeopardy"), and then he and his
mother would eat dinner at 6:00. In short, Smithart told the
troopers that he was at home on the afternoon of August 22nd.
Smithart further asserted that M.L. had never been in his
truck, and he told the troopers that no one had borrowed his truck
on August 22nd. Smithart reacted somewhat strangely, however, when
the troopers suggested that evidence had been found in his truck:
Smithart responded by asking the troopers whether M.L.'s hair or
jewelry had been found in his truck, and whether there was a
bloodstain on the seat.
During the ensuing days, Smithart showed a marked interest
in the search for M.L.'s body and the overall progress of the
investigation. After the body was discovered, Smithart conducted
his own independent search for evidence connected to the crime. In
addition, Smithart made statements to the trooper investigators
which indicated that Smithart had knowledge of certain details of
the crime that had not been made public. [Fn. 1]
During the investigation, Smithart made repeated
statements to the troopers and to residents of Copper Center
indicating his sexual interest in girls as young as eleven and
twelve years old. Moreover, Smithart, an Alaska Native, repeatedly
volunteered (both to the authorities and to Copper Center residents)
that he did not pick up white girls, and that he never tried to pick
up young girls who were jogging. Smithart volunteered many of these
comments during conversations that had nothing to do with his
activities on the day in question.
The troopers collected trace samples of metal flakes,
paint chips, carpet fibers, and hair from M.L.'s body and clothing.
These were compared to samples obtained from Smithart's truck. Two
head hairs with physical characteristics consistent with M.L.'s hair
were found in Smithart's truck. According to the State's expert
witness, paint chips found in M.L.'s clothing (a yellow chip and an
orange chip) matched paint samples taken from Smithart's truck. (A
defense expert testified that the orange chips did not match and
that the yellow chips were questionable.) Samples of red and blue
"trilobel" fibers (a fairly distinctive carpet fiber) obtained from
M.L.'s clothing were identical to fibers taken from Smithart's
truck. In addition, tiny metal spheres found in M.L.'s clothing
were similar to metal particles found in Smithart's workshop and
truck, but the State's expert could not determine whether these
metal particles came from a common source.
Smithart's basic defense was alibi. [Fn. 2]ntances of
Smithart testified that he invariably stayed home in the afternoons
between 3:00 and 4:00 to watch "Wheel of Fortune" and "Jeopardy".
More important was the testimony of Darlene Craig (the wife of
Smithart's cousin) and Lucille Brenwick (Smithart's mother, who
resided with him), both of whom claimed to have been with Smithart
throughout the afternoon of August 22, 1991.
According to testimony given by Craig and Brenwick, Craig
and her husband visited the Smithart-Brenwick residence on the
afternoon of August 22nd because Craig wished to sell Brenwick some
wild blueberries and an afghan blanket. Craig was certain that she
and her husband arrived at 3:20 and stayed until 5:15. (Brenwick
testified that the Craigs might have stayed a little later until
5:30 or 6:00.) Craig and Brenwick both asserted that Smithart was
at home during the entire visit.
To corroborate this testimony, both Craig and Brenwick
identified the check that Brenwick had written to Craig to pay for
the berries and the rug. This check, number 6012 in the amount of
$70.00, was dated August 22, 1991.
However, Smithart's alibi was substantially weakened when
the prosecutor cross-examined Brenwick about her check register.
The check register contained an entry for the check Brenwick wrote
to Darlene Craig (check number 6012). The next entry in Brenwick's
register was check number 6013, a check for $45.42 that Brenwick
wrote to the Copper River Cash Store (a grocery store), also on
August 22nd. Brenwick testified that she must have gone to the
grocery store later that evening, after Craig and her husband had
left. However, the prosecutor then confronted Brenwick with the
cash register tape from the Copper River Cash Store; this register
tape showed that Brenwick's $45.42 grocery purchase was rung up at
3:17 p.m.. Thus, Craig's August 22nd visit to the Smithart-Brenwick
residence apparently was over before 3:00 in the afternoon, because
Brenwick was purchasing groceries with her next check (number 6013)
at 3:17 the approximate time of M.L.'s abduction and the time for
which Smithart needed an alibi.
The jury convicted Smithart of kidnapping, sexual assault,
and murder. Superior Court Judge Glen C. Anderson sentenced
Smithart to a composite term of 114 years in prison.
Did the trial judge commit error in allowing the State to
introduce evidence of Smithart's attempts to offer rides to two
young girls, K.G. and J.M.?
Before Smithart's trial, the parties litigated whether the
State would be allowed to introduce evidence of Smithart's contacts
with two young girls in the weeks just prior to M.L.'s abduction.
As indicated above, during the investigation of M.L.'s
disappearance, Smithart repeatedly told the troopers that he would
never pick up white girls "because it would look bad" and that he
would "never pick up girls who were jogging". On September 22, 1991
(three weeks after M.L.'s body was found), Smithart told the
troopers that he never tried to pick up a particular teenage girl
who worked at a local business. The troopers' suspicions were
aroused by Smithart's repeated denials, so they began to investigate
the possibility that Smithart had approached other young girls.
K.G., a 15-year-old girl, reported that she had been
jogging near Copper Center in July 1991 when Smithart drove by in
his truck. Driving alongside her, Smithart mouthed the words,
"Would you like a ride?" K.G. recognized Smithart because he
frequented her family's restaurant in Copper Center. When K.G. did
not accept the offer, Smithart drove on. However, a short time
later, Smithart (now heading in the opposite direction) drove by
K.G. again, and he again mouthed the question, "Would you like a
ride?" Again, K.G. did not accept the ride. Smithart drove by K.G.
a third time; this time, he motioned for K.G. to come over to his
truck. K.G. shook her head and kept on jogging.
One week later, Smithart went to the place where K.G.
worked and told her that if she ever needed a ride, he would be
happy to give her one.
On September 12th (eleven days after M.L.'s body was
found), P.G., the mother of K.G., chanced to meet Smithart at a
local restaurant. At that time, P.G. did not know anything about
Smithart's attempt to get K.G. to accept a ride in his vehicle.
However, P.G. did know that Smithart's mother had just undergone eye
surgery, so she asked Smithart how his mother was doing. Smithart
became upset and replied, "What the fuck does my god-damned mother
have to do with this?" Smithart then told P.G., "By the way, I saw
your daughter jogging, and I didn't pick her up because it wouldn't
look right to the community." That night, because of Smithart's
remark, P.G. asked her daughter if Smithart had ever tried to pick
her up; this is how Smithart's approach to K.G. was revealed.
Another young girl, 14-year-old J.M., contacted the
troopers after she recognized a photograph of Smithart that appeared
in the newspapers in November 1991 (following his arrest). At
trial, J.M. testified that she had been riding her bicycle on the
Richardson Highway near Glennallen in August 1991 (before M.L.'s
abduction) when she heard a truck come up behind her. The truck
slowed down as it passed her, and the driver waved to her. The
driver of the truck paced J.M. for a short distance, but he sped up
when another vehicle came down the road.
After the other vehicle had gone, J.M. saw the truck's
brake lights come on, and the truck started to turn around. J.M.
turned her bike and headed in the opposite direction, toward her
home. The truck came after her and pulled up even with her again.
The driver waved again and mouthed, "Hello." At that point, another
vehicle approached, and the driver of the truck sped up again. J.M.
described the driver of the truck as "[a]n older Native-looking man"
with "black hair and ... with a little bit of gray." She identified
Smithart in a photographic line-up. At trial, J.M. conceded that
she was "not a hundred percent sure" that Smithart was the man in
the truck, but she stated that Smithart "really closely resemble[d]"
that man.
The prosecuting attorney argued that Smithart's attempts
to pick up K.G. and J.M. were evidence of his planning or
preparation to abduct a young girl like M.L.. The prosecutor also
argued that Smithart's attempts to pick up K.G. and J.M. showed
Smithart's fixation with young girls of a particular physical
description. From photographs contained in the record, it appears
that both K.G. and J.M. bore a striking resemblance to M.L. so
great a resemblance that when K.G.'s mother saw a sketch of M.L. in
the newspaper on the day after the disappearance, she thought the
sketch was of her own daughter.
Smithart argued that the testimony of K.G. and J.M. was
barred by Alaska Evidence Rule 404(b), but Judge Anderson ruled that
this evidence was admissible to prove Smithart's identity as M.L.'s
abductor. Judge Anderson noted that both K.G. and J.M. bore a
strong physical resemblance to M.L.. The judge also noted that,
before the troopers knew of the incidents involving K.G. and J.M.,
Smithart made numerous statements specifically denying the very
conduct described by the two girls. Judge Anderson expressed some
doubt whether K.G.'s and J.M.'s testimony actually fell within the
prohibition of Evidence Rule 404(b) since the evidence, by itself,
did not reveal any other crime or immoral conduct. Nevertheless,
the judge concluded that the evidence was admissible under Rule
404(b).
Smithart challenges this ruling on appeal. He argues that
the sole purpose of K.G.'s and J.M.'s testimony was to show that
Smithart had an interest in young girls and was therefore the type
of man who would abduct M.L.. Thus, in Smithart's view, the girls'
testimony was "propensity" evidence barred by Evidence Rule 404(b).
Evidence Rule 404 governs the admission of evidence
concerning a person's character; within that rule, section (b) is
by far the most litigated portion. At the time of Smithart's trial,
Rule 404(b) stated:
(1) Evidence of other crimes, wrongs, or
acts is not admissible if the sole purpose for offering the evidence
is to prove the character of a person in order to show that the
person acted in conformity therewith. [Such evidence] is, however,
admissible for other purposes, including, but not limited to, proof
of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.
(2) In a prosecution for a crime involving
physical or sexual assault or abuse of a minor, evidence of other
acts by the defendant toward the same or another child is admissible
to show a common scheme or plan if admission of the evidence is not
precluded by another rule of evidence and if the prior offenses
(i) are not too remote in time;
(ii) are similar to the offense
charged; and
(iii) were committed upon persons
similar to the prosecuting witness.
Evidence of Smithart's approaches to K.G. and J.M. in the
weeks just before the abduction and murder of M.L. was admissible
under subsection (2) of this rule. The charges against Smithart
involved both physical and sexual assault upon a minor. Smithart's
attempts to pick up K.G. and J.M. occurred in the weeks preceding
the abduction/murder. Both K.G. and J.M. were young females of
essentially the same age as M.L., and M.L.'s murderer appears to
have made the same kind of approach to M.L. as Smithart did to K.G.
and J.M. approaching the girls in a vehicle as they traveled by
foot or bike along a sparsely traveled road, inviting them inside.
The fact that this evidence was admissible under Rule
404(b)(2) constitutes a short answer to Smithart's contention that
the evidence should have been excluded because it proved his
"propensity" to engage in sexual misconduct with minors. Even
assuming that this evidence would be characterized as "propensity"
evidence for purposes of Rule 404(b)(1), Rule 404(b)(2) declares
that the evidence is nonetheless admissible.
Moreover, we alternatively hold that the evidence of
Smithart's approaches to K.G. and J.M. was not offered as
"propensity" evidence. Evidence Rule 404(b)(1) contains the general
rule governing the admission of evidence that a person has committed
other crimes or wrongful acts. Under Rule 404(b)(1), evidence of
a person's other wrongful acts is not admissible "if the sole
purpose for offering the evidence is to prove the character of a
person in order to show that the person acted in conformity
therewith", but such evidence is admissible if it is relevant for
any other purpose. Our cases use the term "propensity" as judicial
shorthand for the forbidden purpose stated in Rule 404(b)(1): "to
prove the character of a person in order to show that the person
acted in conformity therewith".
If evidence has no genuine purpose other than to show the
defendant's character and the consequent likelihood that the
defendant acted in conformity with that character during the episode
being litigated, then Rule 404(b)(1) declares that the evidence
shall not be admitted. If, on the other hand, the judge determines
that the evidence is genuinely relevant for some other purpose, then
the judge must weigh the evidence under Evidence Rule 403,
considering whether the probative value of the evidence on the
non-propensity issue(s) outweighs its potential for unfairly
prejudicing the defendant by suggesting his or her criminal
propensity. Miller v. State, 866 P.2d 130, 133 (Alaska 1994);
Lerchenstein v. State, 697 P.2d 312, 315-16 (Alaska App. 1985),
aff'd, 726 P.2d 546 (Alaska 1986).
As one of the leading evidence texts candidly admits, "the
distinction between acts offered to prove propensity and acts
offered for another purpose is not easily drawn". Stephen A.
Saltzburg, Michael M. Martin, and Daniel J. Capra, Federal Rules of
Evidence Manual (6th ed. 1994), Rule 404, p. 322. The authors do,
however, suggest the following test:
[W]e think that it is helpful to consider
whether the factfinder is [being] asked to engage in a two-step
reasoning process: to infer from [a person's] behavior on one
occasion something about the nature of [the] person[,] and then to
infer from [the person's nature] how the person probably would have
behaved on another occasion when the only connection between the two
occasions is that the factfinder believes that people of a certain
type would act the same way both times.
Federal Rules of Evidence Manual, pp. 322-23. In other words, Rule
404(b) bars evidence of the defendant's other wrongful acts if the
only relevance of those other wrongful acts is to show that the
defendant is a person who, by nature, engages in such wrongful acts,
and if there is no connection between those prior acts and the
episode being litigated other than the assumption that people of a
certain character would act the same way on both occasions. [Fn.
3]
Using this test, we conclude that Smithart's approaches
to K.G. and J.M. were admissible for non-propensity purposes under
Evidence Rule 404(b)(1). We acknowledge that Smithart's approaches
to these two girls potentially showed that he was a man of
questionable character a man who showed sexual interest in young
girls. And under Rule 404(b)(1), this evidence would not have been
admissible if its sole ground of relevance had rested on the
assertion that any man who was generally sexually interested in
young girls was the kind of person who was likely involved in the
abduction, sexual assault, and murder of the young girl in this
case, M.L.. But under the facts of Smithart's case, this evidence
had a more specific, tightly defined relevance.
The contested evidence did not merely show that Smithart
had a general sexual interest in young girls. Rather, the evidence
tended to show that Smithart had a fixation on the type of young
girl involved in this case. K.G., J.M., and M.L. all bore unusual
physical resemblance to each other. All three were girls in their
younger teens, all three were blond-haired, and all three had
strikingly similar facial features. In the weeks just prior to
M.L.'s abduction and murder, Smithart approached both K.G. and J.M.
while they were alone on sparsely-traveled roads; in each case,
Smithart tried to convince the girls to accept a ride in his
vehicle. M.L. had been walking alone along a sparsely-traveled road
when she disappeared, and the State's evidence strongly suggested
that M.L. had been enticed into a motor vehicle when she was
abducted. [Fn. 4]M.L.'s abduction, Smithart went out of his way to
tell several people (including K.G.'s mother) that he would not try
to pick up young caucasian girls in his truck.
Under these circumstances, the relevance of Smithart's
approaches to K.G. and J.M. did not rest merely on the assumption
that people having a certain general trait of character (people
sexually interested in young girls) could be expected to act in
conformity with that trait of character if given the opportunity to
be alone with a young girl. Taken together, the timing of
Smithart's approaches to K.G. and J.M., the circumstances under
which Smithart approached these two girls, the two girls' striking
resemblance to M.L., and Smithart's over-eagerness to deny that he
had engaged in such conduct (before the police were even aware that
this conduct had occurred), establish that Smithart's approaches to
K.G. and J.M. had a case-specific relevance that is, a non-
propensity relevance to the issues litigated at Smithart's trial.
We concede that there is no ready dividing line between
prior acts that reveal only the defendant's propensity to commit
that same type of wrongful act, and prior acts that reveal a genuine
case-specific ground for believing that the defendant committed the
crimes being litigated. However, both this court and the supreme
court have confronted a similar issue in a slightly different
context in prosecutions for sexual assault where evidence of the
defendant's other sexual assaults is introduced to prove that the
defendant was the person who committed the sexual assault being
litigated.
In Coleman v. State, 621 P.2d 869 (Alaska 1980), the
supreme court discussed the question of how to determine whether
prior crimes are so distinctive that, aside from showing the
defendant's bad character, they independently tend to establish the
defendant's identity as the perpetrator of the crime at issue. The
supreme court gave the following explanation for admitting evidence
of another sexual assault committed by Coleman:
The testimony showed [that] the two crimes
shared common elements in the race and age of the victims, the situs
chosen for the attack, the manner of subduing the victim, the type
of intercourse which occurred, and the behavior of the assailant
following the attack. Both victims were relatively young caucasian
women, and were on foot near a wooded area when attacked. Each
indicated that the first awareness of the assailant's presence was
the sound of running footsteps behind her, and that the first
realization that she was being assaulted was when the attacker
placed his arm around her throat, choking her. In both instances,
the attacker rapidly propelled the victim from behind, with his arm
still around her throat, into the woods. In both instances oral
intercourse was performed as well as an effort at vaginal
intercourse (the prior rape also involved anal intercourse).
Following both attacks the assailant discussed whether the victim
would report him to the police, and allowed the victim to walk away.
These characteristics are not so unique as to constitute a
"signature crime," as one commentator suggests should be required
to prove like identity, nor is each of the above common features
material standing alone. But a review of cases in this and other
jurisdictions indicate that the similarities in the attacks, taken
together, compare favorably with other instances where evidence of
prior rapes has been held properly admitted for the purpose of
proving identity.
Coleman, 621 P.2d at 875 (footnotes omitted).
As noted in this passage, the supreme court did not insist
that Coleman's prior crime be so distinctive as to represent his
"signature" (so distinctive as to practically identify him from
among all other potential culprits). Rather, the court asked
whether, under the totality of circumstances, Coleman's other sexual
assault bore a striking enough similarity to the crime being
litigated that it took on a probative aspect above and beyond the
fact that Coleman might be a repeat rapist.
We applied a similar analysis in Harmon v. State, 908 P.2d
434 (Alaska App. 1995). In Harmon, we concluded that evidence of
the defendant's prior sexual assaults was admissible because those
assaults were sufficiently distinctive and similar to the offense
being litigated. Each of Harmon's victims was a white single female
who had previously met Harmon in a social setting and had rejected
his offers of a romantic relationship. Each victim was sexually
assaulted in her home shortly after midnight; each victim was also
beaten. In each case, Harmon was armed with a knife and had used
electrical cord to tie up his victims. Harmon, 908 P.2d at 437-38.
Smithart's case is arguably distinguishable from Coleman
and Harmon in one respect: Smithart's prior approaches to K.G. and
J.M. did not end in abduction or assault. Standing by themselves,
these prior acts appear at most to be suspicious or distasteful; it
is only in retrospect that they take on a more sinister visage.
Even so, Smithart's approaches to K.G. and J.M. share so many case-
specific similarities with the abduction and murder of M.L. that
evidence of these approaches was admissible under Rule 404(b)(1).
As the supreme court noted in Coleman, these similarities need not
be so unique as to constitute a "signature crime", nor do the
various common features need to be persuasive when viewed
individually. But, taken together, they establish a pattern of
behavior that exhibits probative force above and beyond the mere
fact that Smithart might like to offer rides to, or have a general
sexual preference for, young girls. We thus conclude that this
evidence was genuinely relevant for a non-propensity purpose.
The remaining question is whether the evidence would
create a risk of unfair prejudice to outweigh its probative value.
We agree with Judge Anderson that the risk of unfair prejudice was
slight. Smithart's contacts with K.G. and J.M. were not criminal.
By themselves, they tended only to show that Smithart liked to
invite (and perhaps pester) young girls into his truck. The jury
was unlikely to put weight on this evidence outside its proper scope
of relevance.
Having reviewed the facts of Smithart's case, we conclude
that Judge Anderson did not abuse his discretion when he ruled that
Smithart's contacts with K.G. and J.M. were admissible on the issue
of whether Smithart was the person who abducted M.L..
Did the trial judge allow the State to introduce
inadmissible "profile" evidence of Smithart's guilt?
Smithart's next contention on appeal concerns the
testimony of State Trooper Sergeant James McCann. Sergeant McCann
was the lead investigator in this case; in his testimony, he
described the progress of the investigation and how the authorities
had come to suspect Smithart. Smithart claims that some of McCann's
testimony was inadmissible.
Prior to trial, Smithart sought a protective order against
the State's introduction of testimony regarding the psychological
or behavioral profile of sexual murderers. Judge Anderson granted
this protective order. The judge ruled that police witnesses would
be permitted to explain why the investigation focused on Smithart,
but he made it clear that the prosecution would not be permitted to
suggest that there was some scientific or statistical basis for the
investigators' suspicions:
THE COURT: I'll permit [an investigator]
to say if it is ... his or her experience that person[s] [whom] they
ultimately develop as suspects interject themselves into an
investigation. I think that's proper, and I'll permit that kind of
testimony to say [that] that's not unusual or not uncommon. [But
to] say that ... there's some scientific basis for it, or anything
beyond an individual witness's experience, or [to] even suggest ...
that a certain percentage do and a certain percentage don't, I would
preclude that kind of evidence.
During McCann's direct examination, the following colloquy
occurred:
PROSECUTOR: You were aware ... that this
[murder investigation] involved a sexual assault as well, is that
correct?
McCANN: Yes.
PROSECUTOR: What did that mean to you, as
an investigator?
McCANN: It meant an awful lot to me,
really. ... I have learned, through my own experience and that of
my colleagues, and through the literature, that sexual murderers
have a certain type of behavior. Now, they don't always --
At this point, McCann's incomplete answer drew an objection from
Smithart's attorney. The jury was excused, and Judge Anderson
reiterated his earlier ruling. The jury was then resummoned, and
McCann's testimony resumed.
PROSECUTOR: Sergeant McCann, what were
you telling other investigators [to look] for?
McCANN: Well, ... one of the first things
I did was to assign an investigator ... to go to the fire hall,
[which was] a central place of gathering and assignment-giving for
[the] searchers, [and I told this investigator] ... to look for
anyone that perhaps had acted unusual in any way, and to ... talk
with [the search] organizers [to see] if they had seen someone there
[who] was acting unusual or out of the ordinary. ... [I told the
same thing to] all of the other investigators on the task force[.]
They knew [that] that [was] something I wanted to know about. And
we discussed the fact that we're looking for someone who may be
interjecting himself into this investigation where he normally would
not. Someone who was overly concerned. And certainly someone who,
after the body was found, [showed] particular interest in [the] area
[where the body was found].
Later in his testimony, McCann described how the investigation had
come to focus on Smithart:
PROSECUTOR: [W]hat were the factors that
you took into consideration [when you made Smithart] the focus of
your investigation?
McCANN: Well, ... there were many
factors. All these things that we've [already] discussed -- about
how we first got to know who Charlie Smithart was, [and] all the
contacts with him, all the comments. ... All these sorts of things
started to ... create a picture for us. And that, combined with the
eyewitness testimony from David DeForest, and Mr. Smithart's
interjecting himself into this investigation, his focus on the area
of the four-wheel drive roads where [M.L.]'s body was found, when
no one else did. Everybody else was organized, everybody else was
searching other areas together, [but] Mr. Smithart from day one --
and, I think in his words, [for] four or five days there later --
spent all his time right down there in that particular area where
[M.L.] was eventually found. He had intimate knowledge of that
area, of the gullies, the bluffs, the what-have-you. He knew it was
a good place to throw a body off the bluff. He knew a lot about
that area, and [he] admitted that no one else drives down there or
would know where the hell they were going. All those things -- his
interest in the clothing, specifically in the shoes, [was] very
interesting and certainly would eventually make him [the] number-one
suspect.
On appeal, Smithart portrays Judge Anderson's ruling as
a rejection of Smithart's objection and, in effect, a rescission of
the protective order that the judge had earlier granted. Smithart
contends that McCann's ensuing testimony was filled with forbidden
"profile" evidence.
We do not agree. The first-quoted portion of McCann's
testimony (in which he started to tell the jury about the things he
had learned "through the literature" about the behavior of sexual
murderers) constituted an impending violation of Judge Anderson's
protective order. When Smithart objected, Judge Anderson sustained
the objection. The judge noted that McCann had not been qualified
as a psychological expert, and he declared that his ruling with
respect to such profile evidence remained "the same". The judge
cautioned the prosecutor and McCann to limit McCann's testimony to
such things as "Mr. Smithart's interjection into the case". When
McCann resumed his testimony, he made no further reference to "the
literature" or to the scientifically established behavioral
characteristics of sexual murderers.
Smithart argues that, even though McCann made no further
reference to scientific or statistical studies, his ensuing
testimony still constituted "profile" evidence because McCann
discussed the inferences that might be drawn from Smithart's
behavior his unusual degree of interest in the progress of the
investigation, and his keen interest in the area where M.L.'s body
was found.
This was not "profile" evidence within the meaning of such
cases as Haakanson v. State, 760 P.2d 1030, 1036-37 (Alaska App.
1988), Anderson v. State, 749 P.2d 369, 373-74 (Alaska App. 1988),
and State v. Braham, 841 P.2d 785, 789-790 (Wash. App. 1992). The
jury did not need to hear expert testimony to understand the
potential relevance of Smithart's unusual interest in the search for
the missing girl and, later, the murder investigation. The
inference to be drawn from Smithart's behavior rests on common life
experience, not scientific or statistical studies. We uphold Judge
Anderson's ruling on this issue.
Did the trial judge commit error by denying Smithart the
opportunity to argue that the crimes might have been committed by
David DeForest?
Prior to trial, Smithart's attorney filed a motion seeking
permission to introduce evidence that other (unspecified) suspects
had committed the abduction/murder. The prosecution responded with
a request for a protective order that would prohibit the defense
from introducing evidence that another person had committed the
crime, at least until the defense made a specific showing that such
evidence was admissible. These competing pleadings, supplemented
by oral motions at trial, engendered a series of rulings and
clarifications concerning Smithart's ability to introduce evidence
that David DeForest (the man who reported seeing Smithart on Tazlina
Terrace Road) had actually committed the crime.
(a) The law on this subject.
Beginning with the Alaska Supreme Court's decision in
Marrone v. State, 359 P.2d 969, 984-85 (Alaska 1961), Alaska law has
restricted a defendant's ability to introduce evidence that someone
else committed the crime. It might be argued that a defendant
should be able to present any evidence tending to establish the
possibility, no matter how remote, that another person could have
committed the crime. However, the rule has traditionally been more
stringent. As the Alaska Supreme Court explained in Marrone,
[The essentially unanimous rule is] that mere
evidence of [another person's motive to commit the crime], or [even]
of motive coupled with threats [made by] such other person, is
inadmissible unless coupled with other evidence tending to directly
connect such other person with the actual commission of the crime
charged. ... [The] sound basis for this rule ... rests
fundamentally upon the [concept] that evidence to be admissible must
be both relevant and material. [The rule] rests upon the necessity
that trials of cases must be both orderly and expeditious, [that]
they must come to an end, and that it should be a logical end. ...
[I]t is necessary that the scope of inquiry into collateral and
unimportant issues must be strictly limited. It is quite apparent
that if evidence of motive alone upon the part of some other person
were admissible, that in a case involving the killing of a man who
had led an active and aggressive life it might easily be possible
for the defendant to produce evidence tending to show that hundreds
of other persons had some motive or animus against the deceased;
that a great many trial days might be consumed in the pursuit of
inquiries which could not be expected to lead to any satisfactory
conclusion.
Marrone, 359 P.2d at 984 n.19 (quoting People v. Perkins, 59 P.2d
1069, 1074-75 (Cal. App. 1936)) (internal citations omitted).
As indicated in Marrone, most courts enforce the rule that
evidence of another person's guilt, to be admissible, must do more
than simply raise the suspicion that the other person may have
committed the crime. Rather, the evidence must "tend[] to directly
connect [this] other person with the actual commission of the crime
charged". However, as is true with many other legal rules, it is
much easier to state the rule in the abstract than to apply the rule
to a given case. Smithart's appeal requires us to look more closely
at the Marrone rule.
It is apparent, from the supreme court's explanation, that
the Marrone rule rests on the same considerations that are embodied
in Alaska Evidence Rules 401, 402, and 403. First, only relevant
evidence is admissible "relevant" meaning "having any tendency
to make the existence of any [material] fact ... more probable or
less probable than it would be without the evidence". Second, even
though evidence is relevant, a court still has the authority to
exclude the evidence "if its probative value is outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading
the jury". The Marrone rule is, in essence, an attempt to apply
this balancing of probative value against prejudicial impact in the
specific context of evidence offered to show that a third party
committed the crime.
As the commentary to Evidence Rule 401 recognizes,
"[r]elevancy is not an inherent characteristic of any item of
evidence". Rather, relevancy is the "relation between an item of
evidence and a matter properly provable in the case", a relation
revealed by "experience or science, applied logically to the
situation at hand". Commentary to Evidence Rule 401, fourth para-
graph. Similarly, the question put by Marrone whether evidence
"tends to directly connect" another person to the crime must be
answered in the factual context of the defendant's particular case.
For instance, the law has traditionally placed little
probative value on character evidence evidence that a person has
committed the same or similar acts in the past, offered to
demonstrate that the person has a "propensity" to commit the kind
of crime being litigated. This court has repeatedly affirmed trial
court rulings that a defendant can not introduce evidence that
another person has been convicted of a crime similar to the one
charged against the defendant, when this evidence is offered for the
purpose of demonstrating that the other person has a propensity to
commit the kind of crime charged against the defendant. D'Antorio
v. State, 837 P.2d 727, 736 (Alaska App. 1992); Brandon v. State,
839 P.2d 400, 413 (Alaska App. 1992). This is true even when the
other person was present at the scene of the crime. Jordan v.
State, 895 P.2d 994, 999 (Alaska App. 1995).
This same rule is applied in other states. For example,
in State v. Briggs, 776 P.2d 1347 (Wash. App. 1989), the defendant
was accused of attacking several women in a particular area of
Seattle. Id. at 1349. The Washington Court of Appeals upheld the
trial court's refusal to allow the defendant to introduce evidence
that a man named Abram, who resembled the defendant and who had a
record of purse-snatching, had been stopped by the police during a
stake-out of the area. The court ruled that this evidence did not
establish a sufficiently direct connection between Abram and the
crimes for which Briggs stood accused. Id. at 1359-60.
On the other hand, this court has ruled that evidence of
another person's prior commission of similar crimes can be
admissible if, combined with all the other circumstances of the
case, this evidence tends to establish a real possibility that the
other person committed the crime charged against the defendant. In
James v. State, 671 P.2d 885, 892-94 (Alaska App. 1983) rev'd on
other grounds, 698 P.2d 1161 (Alaska 1985), the defendant was tried
for assault. This court held that the defendant should have been
able to present testimony tending to establish that another person
(1) was present when the assault occurred and (2) had uttered
contemporaneous threats of violence against the victim.
This court recognized that, under Marrone, "threats by a
third person against the victim may not be shown unless coupled with
other evidence having an inherent tendency to connect such other
person with the actual commission of the crime". James, 671 P.2d
at 893 (quoting Marrone, 359 P.2d at 984). However, this court
indicated that Marrone's foundational requirement would be satisfied
if the defendant presented evidence
sufficient to establish that the third party
alleged to have threatened the assault victim was present at the
scene of the offense when it occurred or otherwise had the
opportunity to commit the crime. To require more would in effect
... establish a requirement of independent proof [of the third
party's guilt] rather than of corroboration [of the defendant's
contention].
James, 671 P.2d at 893.
A different variation of this problem was presented in
Garner v. State, 711 P.2d 1191 (Alaska App. 1986). The defendant
was charged with killing his girlfriend's infant child through
physical abuse. Only two people could have inflicted the child's
injuries: Garner or J.H., the next-door neighbor who had watched
the child for part of the day. Id. at 1192. Garner asked the trial
court for permission to introduce the testimony of two witnesses who
had seen J.H. abuse her own child. The trial judge ruled that
Garner could cross-examine J.H. about these alleged instances of
child abuse but could not introduce independent evidence on this
point. Id. at 1193. On appeal, this court reversed:
In Garner's trial the issues were tightly
focused. [The child] died from injuries which were [undeniably] the
result of child abuse, and either Garner or J.H. inflicted the
injuries. There was no question that J.H. had the opportunity to
inflict the injuries since she had been alone with [the child].
Under these circumstances it was
particularly critical for Garner's defense to present evidence which
suggested that J.H., not Garner, had inflicted the injuries which
killed [the child]. We agree with [the trial judge] that the
offered evidence had some weaknesses[.] However, the jury could
have reasoned that if J.H. had abused her own daughter, she might
have been the person who abused [the child in this case].
Garner, 711 P.2d at 1194 (citations & footnotes omitted).
Garner is instructive because of the light it sheds on the
meaning of the Marrone requirement of evidence "tending to directly
connect" the other person to the crime. In Garner, there was no
eyewitness who could "directly connect" J.H. to the infliction of
the child's injuries. However, the same was true of the State's
case against Garner himself. The State's case was circumstantial,
based largely on the fact that Garner had been alone with the child
during the time when the injuries were inflicted, coupled with
evidence tending to show that Garner had abused the child in the
past. 711 P.2d at 1192. This court held that, under these circum-
stances, Garner was entitled to present the same kind of
circumstantial case against J.H..
Other courts have reached similar conclusions in cases
where the government's evidence against the defendant was
circumstantial. For instance, in State v. Clark, 898 P.2d 854
(Wash. App. 1995), the defendant was tried for arson. The
government asserted that Clark had been heavily in debt and had set
fire to his own office to collect the insurance proceeds. Clark
defended by asserting that his girlfriend's estranged husband,
Arrington, had set the fire to retaliate against Clark for having
an affair with his wife, and also because Arrington believed that
Clark had sexually molested his 15-year-old daughter. 898 P.2d at
856-57.
Clark offered to prove Arrington's motives to retaliate
against him. In addition, Clark offered to prove: (1) that, two
days before the fire, Arrington called the phone company and,
falsely representing himself to be Clark, had Clark's telephone
disconnected; (2) that a note was found, written by Arrington, with
Clark's phone number on one side and the fire marshall's phone
number on the other; (3) that Arrington's whereabouts at the time
of the fire were unknown; (4) that Arrington had stated that it was
"too bad" that Clark was in jail for something he did not do, and
that he (Arrington) was the reason that Clark was in jail; (5) that
witnesses had seen Arrington's truck pull into Clark's driveway
twice during the two weeks immediately preceding the fire; (6) that
notes written by Arrington indicated that he was keeping track of
Clark's movements; (7) that, two months before the fire in Clark's
office, Arrington had threatened his estranged wife, telling her
that she had better "watch it" because he (Arrington) had learned
in the military how to set fires without being detected; and
(8) that the firefighters who responded to the fire found a broken
window in Clark's office. Id.
Washington follows a rule much like the Marrone rule. As
stated by the Washington court in Clark,
[W]hen a defendant seeks to introduce evidence
connecting another person with the charged crime, a proper
foundation must be laid:
Before such testimony can be received,
there must be such proof of connection with the crime, such a train
of facts or circumstances as tend clearly to point out someone
besides the accused as the guilty party.
Mere evidence of another party's motive, or
motive coupled with threats by such other person, is inadmissible,
unless coupled with other evidence tending to connect such other
person with the actual commission of the crime charged.
Clark, 898 P.2d at 857-58 (citations omitted). Nevertheless, the
Washington court concluded, the trial judge had been wrong to
exclude Clark's evidence against Arrington:
[But] if the prosecution's case against the
defendant is largely circumstantial, then the defendant may
neutralize or overcome such evidence by presenting sufficient
evidence of the same character tending to identify some other person
as the perpetrator of the crime.
Clark, 898 P.2d at 858 (citation omitted). The court ruled that
Clark had presented a sufficiently strong circumstantial case
against Arrington to warrant admission of this evidence under
Washington's version of the Marrone rule. Thus, Clark was entitled
to a new trial. Id. at 859. See also State v. Hamons, 805 P.2d 6,
12-13 (Kan. 1991) (holding that when the government's murder case
against the defendant was circumstantial, it was error to refuse to
allow the defendant to introduce evidence tending to show that two
other people, both having a motive to commit the crime, had recently
argued angrily with the victim and were at the scene of the crime
on the day the victim's body was discovered).
Thus, even though the Marrone rule calls for evidence that
tends to "directly connect" the other person to the crime being
litigated, it is possible (depending on the facts of the particular
case) for a defendant to meet this foundational requirement by
offering a sufficiently substantial circumstantial case against that
other person. This follows from the fact that the admissibility of
such evidence is ultimately governed by a balancing of probative
force versus potential for prejudice. The concepts of "probative
force" and "potential for prejudice" can not be evaluated in a
factual vacuum; these concepts can be assessed only in the context
of the other evidence presented at trial and the parties' theories
of the case. Thus, circumstantial evidence of another person's
guilt can properly be excluded when, viewed in light of the other
evidence in the case, it does no more than raise speculative
possibilities. When, however, the evidence as a whole discloses a
substantial possibility that the defendant has been wrongly charged,
a trial judge would abuse his or her discretion to exclude the
offered evidence of third-party guilt.
There is admittedly some imprecision in this rule. On the
one hand, Marrone calls upon a trial judge to exclude evidence of
another person's guilt when its probative value is outweighed by its
tendency to confuse the issues and divert the jury from its proper
task. On the other hand, if the defendant's offered evidence
reaches a certain threshold of probativeness, it should be admitted;
at that point, it is the jury's function, not the trial judge's
function, to determine the ultimate credibility of that evidence.
As stated above, the proper classification of the defendant's offer
of proof must rest on the facts of the particular case. The best
that an appellate court can do is provide guidance to trial judges
by clarifying the principles that should inform their decisions in
this area.
One facet of Marrone deserves special emphasis. The
Marrone rule restricts a defendant's ability to introduce evidence
when the purpose of that evidence is to show that another person may
have committed the crime(s) for which the defendant is charged.
Like many other rules of evidentiary exclusion (for example, the
hearsay rule), the Marrone rule merely states that evidence is not
admissible if it is offered for a particular prohibited purpose.
Marrone restricts a defendant's ability to introduce evidence when
the sole relevance of the evidence is to show that someone besides
the defendant committed the crime. However, when evidence is
primarily relevant for a different purpose, Marrone does not require
exclusion of the evidence simply because it might also have the
subsidiary effect of suggesting that someone else committed the
crime.
This is not to say that trial judges are to ignore the
potential improper use of the evidence. Under Alaska Evidence Rule
403, trial judges have the discretion to exclude evidence if its
proper probative force is outweighed by the danger that the jury
will use the evidence for an improper purpose. In combination, the
Marrone rule and Evidence Rule 403 authorize a trial judge to
exclude evidence whose primary purpose is to prove someone else's
guilt, even if the evidence is arguably relevant for some other
purpose.
One other aspect of Marrone also merits emphasis. Marrone
is an evidentiary rule; it does not directly control the scope of
a defendant's argument to the jury. A party is allowed to argue any
inference that can be fairly drawn from the evidence. Dorman v.
State, 622 P.2d 448, 461 (Alaska 1981); Sam v. State, 842 P.2d 596,
600 (Alaska App. 1992). As explained above, even when the Marrone
rule is correctly applied, evidence admitted for other purposes may
reasonably suggest that another person committed the crime. If such
evidence has been admitted, Marrone does not forbid the defendant
from arguing this inference, nor does Marrone bar the defendant from
naming a specific suspect if the evidence logically suggests that
person.
(b) The trial judge's initial Marrone ruling at the
time of Smithart's opening statement
As described above, Smithart's attorney filed a pre-trial
motion seeking permission to introduce evidence that other people
could have committed the abduction/murder, and the prosecution
answered with a request for a protective order. These motions were
heard three weeks before Smithart's trial. At that time, Smithart's
attorney told Judge Anderson that he would be glad to present his
evidence that other people might have committed the abduc-
tion/murder, but he would only do so ex parte because he did not
want to reveal his case to the prosecutor. Judge Anderson was
unwilling to hear an ex parte offer of proof, at least until
Smithart presented some legal authority for such a procedure. The
judge then made a preliminary ruling on the prosecutor's motion:
[The defense] must make a presentation prior to
offering that evidence. ... [The prosecutor's motion] only asks
that there be a hearing; and, at this point, I won't determine
whether it can be in camera or not.
. . .
I do want to make it clear, though, [that]
I'm not preventing the defendant from [suggesting], from the
beginning, ... that other people could have committed this offense,
in the abstract, without naming names. I see no problem with that
... in [the defense] opening statement.
Three weeks later, just before the defense delivered its
opening statement (at the beginning of trial), Smithart's attorney
sought the court's permission to suggest in the opening statement
that a specific individual David DeForest had committed the
kidnapping/murder. The defense attorney offered to prove that
DeForest had been on Tazlina Terrace Drive near the time of the
abduction, that DeForest had given inconsistent statements regarding
his whereabouts on the afternoon of August 22, 1991, that DeForest's
shop was a possible source of paint chips and metal particles such
as were found on M.L.'s clothing, that DeForest was on felony
probation (having been convicted of attempted burglary in New York),
that DeForest (contrary to the conditions of his probation)
possessed firearms, including a .22 caliber weapon (the type of
firearm believed to be the murder weapon), and that the parents of
a 15-year-old girl had accused DeForest of having (consensual) sex
with their daughter (a charge which the daughter denied).
In the ensuing discussion, the prosecutor asserted that
DeForest's statements concerning his whereabouts were in fact
consistent, that DeForest had never lied to the authorities, and
that the sexual abuse of a minor accusation was not pursued because
it was not true. Also, in response to questioning from the court,
Smithart's attorney conceded that he had not sought forensic testing
of the paint and metal particles from DeForest's shop, so he had no
way of knowing if they matched the evidence found on M.L.'s
clothing.
Based on Marrone and Garner, Judge Anderson denied the
defense request to single out DeForest as an alternative suspect
during the opening statement. The judge concluded that Smithart's
offered evidence failed to directly connect DeForest to the crime,
thus failing to meet the foundational requirement established in
Marrone:
THE COURT: Marrone provides that [even if
there is] a person who is in a position to
commit the offense, ... there has to be some evidence directly
connecting that person with the offense. What's suggested here in
terms of that "some evidence" is [DeForest's] presence at the scene
[and his] inconsistent statements. I suspect there will be a lot
of witnesses in this trial where persons will point to prior ...
inconsistent statements, or at least those that one party or another
may wish to construe as inconsistent. I'm less than clear how
inconsistent [DeForest's statements] are at this point. [The
defense also states] that he was a person who worked in an area
where there was grease and paint of multiple colors. No showing as
such that would directly connect him with the occurrence of the
criminal event. No apparent showing that would connect him directly
with the victim of that event. Nothing of that kind of character
other than the kinds of things that could apply potentially to quite
a number of people in the Glennallen area. I suspect there are
other people who work around grease, paint, and so on. That does
not meet the standard that is set out in those cases.
However, Judge Anderson took some pains to explain that
he did not interpret Marrone as precluding Smithart from introducing
evidence that suggested DeForest's guilt. Judge Anderson told the
defense attorney that such evidence could be introduced if it was
relevant on some independent ground:
[I]f Mr. DeForest made inconsistent
statements, [evidence of those statements] is admissible just under
[the] general rules of impeachment; ... of course, the defense is
not denied the opportunity to do that. ... [W]ith regard to the
possibility of bias, if there's any indication that there might have
been a deal cut with the State, or even slack cut ... to Mr.
DeForest because of his status as a potential witness in the case,
... [then] the defense certainly has a right to inquire into the
possibility of that bias [i.e., DeForest's prior felony conviction
and probation status]. I think ... that's clear. It really has
nothing to do with whether he's possibly a suspect or not. It's
admissible. ...
In the discussion that immediately followed, Judge
Anderson clarified that Smithart's attorney would still be able to
suggest that the State's evidence did not point exclusively to
Smithart. For example, Judge Anderson noted, Smithart's attorney
could point out that other people besides Smithart worked in shops
where they might have picked up paint and metal particles. The
Marrone rule, Judge Anderson explained,
focuses on individual [accusations] you know,
getting into a [specific] other suspect. [Notwithstanding Marrone,
you] can suggest that there are other possible people who committed
this offense. It appears identity is a major issue. I don't think
the defense is ever denied [the] opportunity ... , in opening
statement or otherwise, to suggest that there are a lot of other
people who ... could have committed this offense ... [but] without
focusing on a particular one.
Judge Anderson then reiterated that Marrone did not
prohibit Smithart from introducing any and all evidence that might
cast suspicion on someone else. The judge told the defense attorney
that "some of the things [you mentioned as tending to cast suspicion
on DeForest] are things that ... would be admissible anyway, either
as impeachment or to show bias", assuming DeForest testified. Judge
Anderson explained,
[My] ruling [is] an evidentiary one[.] [Y]ou
may not offer discrete evidence, or argue from such evidence, that
[DeForest] is [the] person who committed the offense. That's the
evidentiary rul[e] arising from [Marrone and] the three or four
[other] cases that deal with [this issue]. And I [also] want to
clarify ... that, the extent that we're talking about a possible
universe of people other than Mr. Smithart who may have committed
the offense, I'm not foreclosing that, and I didn't intend to.
For instance, Judge Anderson ruled that Smithart's opening statement
could include the assertion that DeForest had falsely denied being
on Tazlina Terrace Drive on the afternoon of the crimes, that
DeForest worked on vehicles in a shop, and that DeForest did welding
and grinding.
When Smithart's attorney suggested that he should also be
able to introduce evidence that the floor of DeForest's garage was
covered with orange paint, and that DeForest had been working on a
truck on the day of the abduction, Judge Anderson told him:
My ruling is that you may not get into those
areas [if the purpose is] just [to] connect [DeForest] with the
crime. There would have to be another independent basis for [those
things] to be offered into evidence.
. . .
What I'm trying to indicate is that, to
the extent [you wish to introduce] discrete evidence on [the issue
of DeForest's guilt], I think you have to make a stronger showing
than the one [you have] made now. ... [But] I'm not prohibiting
the defense from suggesting that there's a universe of people out
there, which could conceivably include Mr. DeForest, [who] could
have committed the offense.
At the end of this discussion of Marrone, Judge Anderson
explicitly told Smithart's attorney that the various aspects of his
ruling were not final. Smithhart was invited to present any
"additional fact[s] that would justify ... reconsideration" of the
judge's conclusion that Smithart had not yet satisfied the Marrone
foundational requirement. As Judge Anderson told the defense
attorney, "I think I've left the door open for a stronger showing,
... one that would meet the evidentiary standard. But I don't see
it there yet." Judge Anderson also clarified that, even if the
Marrone requirement was not met, so that Smithart was restricted in
his ability to introduce independent evidence of DeForest's guilt,
Smithart was still free to seek admission of evidence tending to
show DeForest's guilt if it was "admissible for any other purpose".
Judge Anderson's extended ruling, examined as a whole,
correctly states some aspects of the Marrone rule and misstates
others. Judge Anderson correctly informed the defense attorney
that, before Smithart could introduce evidence whose sole purpose
was to prove that DeForest might have committed the crime, Smithart
had to satisfy Marrone's foundational requirement of evidence
"tending to directly connect" DeForest to the abduction/murder.
Judge Anderson also correctly informed the defense attorney that if
evidence had an independent ground of relevance, then Marrone would
not bar its admission, notwithstanding the fact that the evidence
tended to suggest that DeForest (or anyone else) had committed the
crime.
However, Judge Anderson misconstrued Marrone when he
enjoined Smithart from using his opening statement to single out
DeForest as the likely perpetrator of the abduction/murder. As we
explained above, the Marrone rule limits the introduction of
evidence, but it does not limit a party's ability to argue all
reasonable inferences from the evidence that is admitted. If,
despite Marrone's restriction on the introduction of independent
evidence that DeForest committed the crime, it was clear that
sufficient evidence would be introduced at Smithart's trial to
warrant a reasonable inference that DeForest might be the
perpetrator, then Smithart would be entitled to announce this
inference in his opening statement. [Fn. 5]
It appears that Smithart's opening statement was
influenced by this mistaken expansion of the Marrone rule. In his
opening statement (which was delivered just minutes after Judge
Anderson's ruling), Smithart's attorney asserted that Smithart had
not been the one who abducted and murdered M.L. that Smithart had
been home watching television when the crime occurred. And, after
explaining Smithart's alibi, the defense attorney spent several
minutes focusing on DeForest, "the only person who can put Charlie
Smithart in the area".
Smithart's attorney told the jury that DeForest was a
convicted felon who had avoided jail by agreeing to move to Alaska;
that, in Alaska, DeForest had married a sixteen- or seventeen-year-
old girl who was already pregnant; that DeForest had given
inconsistent statements concerning his own whereabouts on the
afternoon of August 22, 1991; that DeForest had been in Smithart's
truck on various occasions; that when the state troopers asked
DeForest to substantiate his own whereabouts, DeForest gave the
troopers an altered time sheet; that DeForest himself had been on
Tazlina Terrace Drive on the afternoon of the abduction/murder;
that, in violation of his probation, DeForest possessed several
firearms, including a .22; and that DeForest had lied during his
testimony at two search warrant hearings. In sum, Smithart's
attorney declared, "Dave DeForest didn't see Charlie Smithart on
August 22, 1991. Dave DeForest has weaved a tale of deception, and,
oh, what a tale we weave when we are lying." However, constrained
by Judge Anderson's ruling, Smithart's attorney stopped short of
openly accusing DeForest of being the one who had abducted and
killed M.L..
(c) Smithart's cross-examination of prosecution
witnesses and presentation of his own case
Consistent with the ruling described in the previous
section, Judge Anderson allowed the defense attorney free rein in
cross-examining the State's witnesses, even when that cross-
examination clearly suggested that David DeForest was another likely
suspect in the abduction/murder of M.L..
DeForest himself was one of the prosecution's early
witnesses. Just before the defense attorney commenced his cross-
examination of DeForest, he asked Judge Anderson for permission to
question DeForest about his workshop and the type of work he had
been performing on vehicles (grinding and welding) on the day of the
crime. Judge Anderson responded,
You can cross-examine in those areas pretty
much at will, such as [the] grinder and what [DeForest] was doing
that day. ... The evidentiary ruling I made earlier was based on
specific case law [that] talks about when you can offer affirmative
evidence of [another person's guilt]. The scope of cross-examina-
tion is obviously much broader, and should be.
In the same vein, Judge Anderson allowed Smithart's attorney to ask
DeForest about an inconsistent statement he had allegedly made to
another witness, a statement which arguably placed DeForest closer
to the scene of the abduction than he had admitted to the state
troopers.
In an effort to establish that DeForest was not being
truthful concerning his whereabouts on the afternoon of the crime,
Smithart's attorney cross-examined DeForest at length about his time
sheets and his method for keeping track of his hours. Judge
Anderson never employed Marrone to restrict this cross-examination.
During the cross-examination of DeForest, the defense attorney
openly suggested that DeForest did not always fill out the time
sheets contemporaneously, but instead filled out the time sheets
some days later. The defense attorney suggested that DeForest had
done this when the troopers asked him to produce the time sheet for
the day of the abduction/murder. DeForest admitted that he never
signed the time sheet for August 22, 1991 until the troopers asked
him to produce it. The defense attorney also pointed out that,
regardless of when the time sheets were completed, no one but
DeForest himself could verify the hours written on those sheets.
Smithart's attorney also employed cross-examination to
suggest that DeForest had invented the story of seeing Smithart's
vehicle on Tazlina Terrace Drive on the afternoon of the crime.
DeForest conceded that he failed to tell the troopers about seeing
Smithart's vehicle until September 10th eighteen days after the
abduction, and nine days after M.L.'s body was discovered. DeForest
also conceded that he never told anyone (until trial) that he
himself had driven some distance into the neighborhood on the day
of the crime. Again, Judge Anderson never employed Marrone to
restrict this cross-examination.
On the stand, DeForest admitted that there was grease,
metal, and paint around his workshop, and that paint could have
gotten into his hair. DeForest also admitted that he had lied
during direct examination when he denied owning a handgun; following
that false testimony, he had surrendered a .22 caliber pistol to the
state troopers. [Fn. 6]
While DeForest was on the stand, Judge Anderson again
clarified that the Marrone rule did not restrict Smithart's ability
to suggest, through cross-examination, that DeForest was personally
involved in the abduction/murder. Rather, Marrone only restricted
Smithart's ability to introduce independent evidence of DeForest's
guilt:
THE COURT: [O]n cross-examination, there
can be suggestions and implication[s] that this man [DeForest] ...
may have been involved [in the homicide] himself. I mean, that's
fair game on cross-examination. My prohibition on that point has
only gone to the introduction of independent evidence.
. . . .
[T]here have been questions on cross-
examination that have suggested [that DeForest
had an] improper motive [for altering his time sheets]. ...
[T]here's been a suggestion that [DeForest] may have had something
to do with [M.L.'s] disappearance -- [a subject that], as I've
indicated, on cross he can be asked about: questions regarding what
was at his shop, questions regarding where he was with regard to
[Tazlina Terrace Drive], and how far he got [down the road]. ...
[C]ross-examination [can properly] touch on [these] point[s].
Throughout the defense attorney's lengthy cross-examination and
recross-examination of DeForest, Judge Anderson never prevented
Smithart's attorney from inquiring into any of these areas.
Later in the trial, during Smithart's cross-examination
of State Trooper Investigator David Churchill, the defense attorney
again suggested that DeForest was lying about his own whereabouts
on the afternoon of the crime, and was also lying about seeing
Smithart's vehicle near the scene of the abduction. Investigator
Churchill admitted that, during the intensive search for M.L.'s
body, DeForest did not mention having seen Smithart in the area on
August 22nd. And, even though DeForest claimed that he had
telephoned police dispatch on August 30th or 31st to report that he
had information about the case, Churchill conceded that the police
had no dispatch tape or dispatcher's written notation to verify that
such a call had been made. Churchill also conceded that, when
DeForest volunteered to show the troopers his time sheets for August
22nd, DeForest gave the officers the "short" form of his time sheet;
but he never mentioned that there was a longer, more complete
version of the time sheet.
The prosecutor interposed one Marrone objection during the
examination of Investigator Churchill. The issue came up because,
during cross-examination, Smithart's attorney repeatedly faulted the
troopers for failing to tape record their interviews with DeForest.
Then, during recross-examination, Smithart's attorney elicited the
fact that Churchill routinely taped all his interviews with suspects
and with people who had information about suspects:
DEFENSE ATTORNEY: Now, regarding taping,
you're required by law to tape anybody in
custody, right?
CHURCHILL: That's correct.
DEFENSE ATTORNEY: Okay. And in this
particular case you also indicated that you taped suspects, right?
... [And] people that may have information about a suspect.
CHURCHILL: ... As an investigation comes
into focus on a particular person as being a viable suspect, ...
that's when I started taping.
DEFENSE ATTORNEY: Right. You taped the
conversation with Earl Hardesty. That was somebody [other] than
Charlie Smithart. Right?
CHURCHILL: That's correct.
DEFENSE ATTORNEY: Okay. And you taped
the interview ... with Bill Hand. That was somebody different than
Charlie Smithart. Right?
CHURCHILL: Yes, it was.
DEFENSE ATTORNEY: You taped Chris Rhodes.
That was somebody different than Charlie Smithart.
CHURCHILL: Yes, it was.
DEFENSE ATTORNEY: Okay. So you taped
people that had information about other potential suspects?
CHURCHILL: Yes, I did.
DEFENSE ATTORNEY: Okay. [But] you didn't
tape Dave DeForest ever about any information he had regarding
Charlie Smithart.
CHURCHILL: No, I did not.
A few minutes later, during a break in the proceedings,
the prosecutor asserted that Smithart's attorney had violated the
protective order by "specifically asking Investigator Churchill
whether or not he taped other potential suspects". The prosecutor
argued that, under the court's ruling, the defense attorney was not
permitted to refer to other suspects. But Judge Anderson replied
that the prosecutor's objection was based on a misunderstanding of
the court's ruling:
THE COURT: [C]onsistent with what I said
[at the time of the defense] opening statement, ... I don't deem a
reference to the existence of other suspects to be inappropriate or
in violation of the court's order. The only thing [covered by the
order] is whether or not evidence could be offered as to a specific
identified suspect or specific identified suspects. ... [T]here's
a foundational requirement that ... needs to be met [before such
evidence can be introduced]. [But] that's been the only extent of
the ruling. And I don't deem [it] a violation [for the defense
attorney] to refer to whether or not [the officer] tapes suspects.
I think it's clear in context that ... this is the kind of case
where there [was] more than one possible suspect at various points
along the way.
The State's next witness was the lead investigator in the
case, State Trooper Sgt. James McCann. During his cross-examination
of Sgt. McCann, Smithart's attorney openly attacked DeForest's
credibility and suggested that DeForest had not been truthful in
describing his own whereabouts and activities on the day of the
abduction/murder. During cross-examination, McCann conceded that
DeForest never mentioned the fact that there were two versions of
his time sheets. McCann also conceded that DeForest had never
previously told the troopers about two teenagers who DeForest now
claimed could verify his whereabouts on the afternoon of the crime.
Finally, McCann admitted that the troopers had never investigated
DeForest's alibi until the time of Smithart's trial. Based on these
answers, Smithart's attorney suggested that DeForest had not been
forthright with the troopers. The defense attorney pointedly asked
McCann if it wouldn't have been prudent to investigate the man who
was pointing the finger at Smithart.
Smithart's trial lasted another eight days after Sgt.
McCann's testimony. On July 13th-15th, Smithart presented his case.
Smithart's main witnesses were his alibi witnesses and his
metallurgy expert. At the conclusion of the defense case, the
prosecution presented one rebuttal witness (the owner of the Copper
River Cash Store, who testified about the cash register tape that
cast doubt on Smithart's alibi). The evidence then closed.
Throughout the presentation of evidence at Smithart's
trial, Judge Anderson never once invoked Marrone to limit Smithart's
presentation of evidence or cross-examination of witnesses.
Smithart's attorney conducted extensive cross-examinations of
DeForest and of the two state trooper investigators, Churchill and
McCann. In these cross-examinations, Smithart's attorney plainly
suggested that DeForest had invented a story about seeing Smithart's
vehicle on Tazlina Terrace Drive, that DeForest was lying about his
own whereabouts on the afternoon of the crime, and that DeForest was
himself a prime suspect. As described above, the prosecutor raised
only one Marrone objection to this cross-examination, and Judge
Anderson overruled it.
We also note that, during the defense case, Smithart
presented the testimony of a local resident, Randy Anderson, who
told the jury that, at one point in the investigation, he himself
had been a suspect in the abduction/murder. Anderson added that "a
whole lot of other people" had also been suspected. There was no
objection to this testimony.
On appeal, Smithart asserts that the evidence presented
at his trial was sufficient to directly connect DeForest to the
abduction and murder of M.L., thus meeting Marrone's foundational
requirement and thus obliging Judge Anderson to allow Smithart to
introduce independent evidence of DeForest's guilt. We agree that,
by the end of the trial, there was significant evidence suggesting
that DeForest could be considered a suspect in the crimes. However,
it must be remembered that Judge Anderson's initial Marrone ruling
was based on Smithart's offer of proof at the beginning of trial
(before the evidence opened). Judge Anderson explicitly invited
Smithart's attorney to seek reconsideration of the Marrone ruling
if, during the trial, the defense attorney felt that there was
sufficient evidence to meet Marrone's foundational requirement
(evidence tending to directly connect DeForest to the crime).
Despite this invitation, Smithart's attorney never sought reconsid-
eration of the Marrone ruling. Further, Smithart's attorney never
indicated that he had additional evidence that would be admissible
once the Marrone threshold showing was met.
In short, when Smithart's attorney rose to deliver his
summation to the jury on July 20th, Marrone had never been invoked
to limit defense cross-examination of prosecution witnesses, and it
had been invoked only once (at the very beginning of trial) to
exclude proffered defense evidence specifically, evidence that
DeForest's workshop floor was painted orange, and that DeForest had
been accused of having consensual sex with a fifteen-year-old girl.
Having reviewed the record, we conclude that Judge Anderson was
justified in excluding these two pieces of evidence, independently
of the Marrone rule.
Regarding the orange paint, the defense attorney suggested
that this evidence was relevant because DeForest's workshop was a
possible source of paint chips similar to the ones found on M.L.'s
clothing. However, when questioned by Judge Anderson, the defense
attorney conceded that he had not sought forensic testing of the
paint from DeForest's shop, so he had no way of knowing if that
paint matched the evidence found on M.L.'s clothing, or if the paint
on DeForest's shop floor was any more similar to the evidence found
on M.L.'s clothing than the paint that might be found in any other
shop in the Copper Center area. Under these circumstances, Judge
Anderson could properly reject the offered evidence for lack of
relevance. [Fn. 7]
Regarding Smithart's allegation that DeForest had engaged
in consensual sex with a 15-year-old girl, Smithart offered to prove
that the girl's parents had accused DeForest of having sex with
their daughter, and that this accusation was corroborated by an
entry in the girl's diary. In response, the prosecutor told the
court that the sexual abuse allegation had, in fact, been reported
to the authorities, but the resulting investigation did not lead to
criminal charges because the allegation was found to be untrue.
Smithart did not respond to the prosecutor's assertion. Under these
circumstances, Judge Anderson again could conclude that Smithart's
offered evidence (an untrue allegation of sexual misconduct) was
irrelevant.
Moreover, even assuming that Smithart's silence did not
constitute an abandonment of his request to introduce this evidence,
Judge Anderson was still justified in rejecting this evidence.
Smithart's purpose in offering evidence that DeForest may have
engaged in consensual sex with a 15-year-old girl was (1) to suggest
that DeForest had a propensity to engage in sex with minors, and
(2) to further suggest that any person who engages in consensual sex
with minors is more likely to engage in the kidnapping, rape, and
murder of minors. This is the type of character evidence that is
declared inadmissible by Evidence Rule 404(b)(1) evidence of a
general trait of character, introduced to prove that the person
acted in conformity with that trait. Jordan v. State, 895 P.2d 994,
999 (Alaska App. 1995).
Nor would DeForest's alleged prior act of consensual
sexual intercourse with a minor qualify for admission under Evidence
Rule 404(b)(2). Rule 404(b)(2) requires a foundational showing that
the prior act was "not too remote in time", was "similar to the
offense charged", and was "committed upon persons similar to the
[victim]". Smithart never specified when DeForest had allegedly
engaged in sexual activity with the 15-year-old girl. Further, the
only asserted similarity between the 15-year-old girl and 11-year-
old M.L. was that both were underage females. Most importantly,
Smithart failed to explain how DeForest's alleged act of consensual
intercourse was "similar" to the abduction, sexual assault, and
murder inflicted on M.L..
For these reasons, Judge Anderson could justifiably
conclude completely apart from the Marrone rule that even if
Smithart had solid evidence tending to show that DeForest had
engaged in an act of consensual intercourse with a 15-year-old girl,
this evidence would not be admissible to prove that DeForest had
committed the crimes charged against Smithart. [Fn. 8]
In sum, Smithart has failed to show that his cross-
examination of witnesses and presentation of evidence was affected
by Judge Anderson's Marrone ruling. With two exceptions, Judge
Anderson never invoked the Marrone rule to limit Smithart's cross-
examination or presentation of evidence. And with respect to the
two instances in which Judge Anderson did limit Smithart, the
limitations imposed by the judge were justifiable without regard to
Marrone.
(d) The close of trial, the ruling concerning the
scope of argument, and Smithart's summation to the jury
Marrone came up one more time after the close of the
evidence. The parties argued jury instructions and other procedural
matters on July 16th and 19th. During the discussion of jury
instructions, Smithart's attorney alerted the court that he intended
to present an instruction on the existence of other potential
suspects. In response, the prosecutor asserted that the court's
Marrone ruling prevented the defense from identifying specific other
suspects by name. This prompted Judge Anderson to again address the
scope of his Marrone ruling:
THE COURT: I guess I need to make one
thing fairly clear to the State. ... [M]y prior ruling ... doesn't
preclude any argument about other suspects. And, indeed, ... as for
those who have testified, ... the defense can make arguments about
them from a bias standpoint, too, ... which may well [amount to] the
same thing. ...
The only thing that I intended to deny,
and the only thing that I did deny ... is the presentation of
specific evidence tending to point the finger at ... another suspect
unless that [evidence] tended to connect [that] person ... with the
crime in some way beyond motives that would extend to the world at
large.
Judge Anderson's statement to the parties could be read
as a clarification and correction of the error in his initial
Marrone ruling. Judge Anderson's words appear to clarify that he
interpreted the Marrone rule to restrict only the introduction of
a particular type of evidence at trial (extrinsic evidence offered
to prove that a third party committed the crime). Judge Anderson's
words also appear to clarify that Smithart remained free to argue
(based on any evidence that had been presented at trial) that
specific other people might have committed the crime.
However, the record also suggests that this clarification
was lost on the parties. A few minutes after Judge Anderson made
the above-quoted remarks, during the discussion of a defense-
proposed jury instruction, Smithart's attorney remarked in passing,
"You [Judge Anderson] said [that] I ... can't refer to a particular
person who may have done it, but [I am permitted to point out] that
there was a world of other suspects out there." Judge Anderson
responded as follows:
THE COURT: I'm certainly not prohibiting
the defense from arguing that there are other possible suspects.
And I'm certainly not prohibiting [the defense] from arguing [any
evidence] that may relate to persons who have testified because
[a person's status as a possible suspect] can amount to a bias
argument[.]
This response was unfortunately ambiguous; Judge Anderson did not
clearly inform the defense attorney that he was free to single out
DeForest as an alternative perpetrator. And indeed, in his ensuing
summation, the defense attorney refrained from expressly arguing
that DeForest was the real perpetrator of the crime.
Nevertheless, despite the defense attorney's apparent
confusion regarding the permissible scope of final argument, the
defense attorney devoted a large portion of his summation to David
DeForest and DeForest's possible links to the crime. Soon after he
began his summation, the defense attorney announced that he was
going to "talk about Dave DeForest for a while":
DEFENSE ATTORNEY: Charlie Smithart is on
trial. But maybe other people should be on trial instead of Charlie
Smithart, because there are other viable suspects in this case[.]
. . .
[If there are] inconsistencies and contradic-
tions in [a witness's] testimony, [or] between
their testimony and others', their recollection may be unreliable,
or the witness is being untruthful. And that's where Dave DeForest
comes into play. Let's talk about Dave DeForest for a while.
Smithart's attorney told the jury that DeForest was a
thief and a liar; "[w]hen it benefits Dave DeForest, he'll lie."
The defense attorney noted that DeForest had concededly lied on the
stand at Smithart's trial when he denied owning handguns. And the
defense attorney urged the jury not to believe DeForest's claim that
he had no interest in the $20,000 reward offered for the
identification of M.L.'s murderer.
The defense attorney argued that DeForest had given
several conflicting accounts of his activities on August 22nd, and
that DeForest had no verifiable alibi for the afternoon of the
crime. The attorney reminded the jury that DeForest had never told
the troopers about the long form of his time sheets, or about the
teenagers who might have corroborated his whereabouts on the day of
the crime, until the time of Smithart's trial. Further, the defense
attorney asserted, DeForest's explanation of the discrepancies
between his "short form" and "long form" time sheets was incredible.
The defense attorney noted that DeForest had admitted signing the
short form time sheet only after the troopers asked to see it, so
that it would look official. Based on all this evidence, Smithart's
attorney argued that the times recorded on DeForest's time sheets
were simply not credible:
The dates and times are different because Dave
DeForest went back and filled in the times, ... filled [them] in
after someone else called the police [with information that DeForest
had himself been on Tazlina Terrace Drive], [filled them in] for the
20 days [during which] Dave DeForest failed to do anything at all.
The defense attorney also pointed out that, for two and
a half weeks following the abduction, DeForest failed to mention
seeing Smithart (or anyone else) in the Tazlina Terrace Drive area,
and he asserted that DeForest had no good explanation for why he
delayed informing the authorities of this crucial information. He
noted that, even though DeForest said that he called the police on
August 30th or 31st, there was no record of such a call. Moreover,
the defense attorney argued, DeForest had given inconsistent
accounts of when he purportedly saw Smithart's vehicle in the area.
Based on this evidence, Smithart's attorney suggested that
"Dave DeForest was just lying. ... [W]e know Dave DeForest didn't
see Charlie Smithart on the 22nd because of all the other things he
says."
Smithart's attorney also suggested that DeForest was a
plausible suspect because his activities on August 22, 1991, had put
him in contact with metal shavings and paint like the ones found on
M.L.'s body:
What do we know [about what] Dave DeForest
was doing on [August] 22nd? We know [that] Dave DeForest was
working on a truck. He was grinding that day. He had grease all
over him. He works in a shop that has paint. He works in a shop
where they do welding. ... And that becomes very important in this
case, ... because Dave DeForest was trying to be oh-so-careful
about [declaring,] "I didn't grind paint that day, and, well, I was
grinding that day, just not paint, and I hired these kids [to do the
job] because I didn't want to get my hair dirty, and I didn't want
to get grease all over my hair, but I had been scraping grease off
the truck that day."
The defense attorney argued that the paint and metal shaving
evidence might link DeForest to the crime just as much as Smithart.
He asserted that even the prosecution's expert witnesses conceded
that the metal shavings on M.L.'s body might not match the ones
taken from Smithart's workshop. He then attacked the prosecution's
position that any discrepancies were not significant:
Charlie [Smithart's workshop] had brass
and had iron oxide, and he had paint that was small, and he had
fibers we can't say from [what] source. So [M.L.] had contact with
someone who had those things; okay. Well, who else could [it] have
[been]?
[T]here were other people out there. Dave
DeForest he was grinding, they weld at his shop, they paint; the
truck's red, he's working on a white truck with blue. He ... says
he wasn't painting on it then, [but] who knows? Who knows what
would have been found in Dave DeForest's shop if they could have
gone in there and looked in Dave DeForest's shop? We don't know,
but we know that David DeForest was doing those things, and [he] was
in the area that day, too. But let's blame Charlie Smithart because
these [materials] were in his life. We'll never check Dave
DeForest's life and see what's in Dave DeForest's life.
Based on these portions of the defense summation, we
conclude that the error in Judge Anderson's Marrone ruling did not
prejudice Smithart's ability to argue his case. We reiterate that
the Marrone rule does not affect a defendant's ability to argue any
and all inferences that can be reasonably drawn from the evidence.
Thus, Judge Anderson was wrong when, at the outset of the trial, he
indicated to Smithart's attorney that Marrone prohibited the defense
from directly accusing DeForest (or any other third person).
Moreover, Judge Anderson's subsequent efforts to clarify his ruling
were seemingly ineffective; until the end of trial, and through his
summation to the jury, Smithart's attorney apparently continued to
believe that he could not directly accuse David DeForest of
committing the crime.
However, even with this limitation, the defense summation
clearly communicated to the jury that DeForest was a likely suspect,
and the defense attorney discussed all of the reasons for believing
that DeForest might have committed the crime. In other words, the
defense attorney was able to effectively present and argue his
theory that DeForest was a plausible alternative suspect and that
this possibility (that DeForest had committed the crime) should lead
the jury to have a reasonable doubt concerning Smithart's guilt.
Thus, even though the defense attorney believed himself
constrained from singling out DeForest as the perpetrator of the
crime, we find it extremely unlikely that this perceived limitation
on the defense summation had any impact on the jury's consideration
of the case. Our conclusion is fortified by the strength of the
State's evidence against Smithart, as well as the collapse of
Smithart's alibi during the State's rebuttal case. Viewing the
record as a whole, we conclude that the erroneous portion of Judge
Anderson's Marrone ruling was harmless beyond a reasonable doubt.
Conclusion
The judgement of the superior court is AFFIRMED.
COATS, Judge, dissenting.
I agree with the majority that Judge Anderson erred when
he prohibited Smithart from arguing that David DeForest committed
the crime. However, in my judgment, this error was more of a
handicap to Smithart's defense than the majority perceives it to be.
At the outset of the trial Smithart indicated that he
wanted to organize his defense around the theme that David DeForest
committed the crime. In an offer of proof Smithart's attorney set
out a circumstantial case against DeForest. DeForest was a key
prosecution witness who placed Smithart at the scene of M.L.'s
abduction. Therefore, by his own testimony, DeForest was present
at the scene and placed himself in a position to have committed the
crime. Smithart's attorney pointed out that DeForest did not report
seeing Smithart at the scene of the abduction until nearly three
weeks after M.L. disappeared. He argued that DeForest had made
several inconsistent statements about seeing Smithart on Tazlina
Drive. He contended that DeForest had made inconsistent statements
about his activities the afternoon M.L. was abducted. He claimed
that DeForest's inconsistent statements suggested that he had
fabricated the report. DeForest had previously been convicted of
attempted burglary, a crime of dishonesty. Because of this
conviction he was prohibited from possessing weapons. DeForest
originally denied possessing any weapons to police investigators.
However, he ultimately admitted to possessing weapons in violation
of the law, including a .22 caliber weapon which was the type of
weapon the police believed had been used to kill M.L. DeForest
worked in a shop which could have yielded the paint chips and metal
particles which were found on M.L.'s clothing. Smithart's attorney
argued that the circumstantial case against DeForest was sufficient
to allow him to argue to the jury that the evidence suggested
DeForest committed the crime, or at least that the circumstantial
case against DeForest was sufficiently strong to create a reasonable
doubt that Smithart committed the crime.
By taking this position at the outset of the case,
Smithart's attorney took a big risk. If the prosecution could
convince the jury that DeForest could not have committed the crime,
Smithart's case would suffer a serious blow. However, if Smithart
could convince the jury that there was a reasonable chance that
DeForest committed the crime, he could establish a reasonable doubt
of Smithart's guilt. We all agree that Smithart was entitled to an
opportunity to argue this theory of the case to the jury. Although
I concede that it is a close question, I don't believe that
Smithart's attorney can be faulted for not pressing Judge Anderson
to modify or clarify his ruling. The attorney made a clear offer
of proof at the start of the trial setting out his proposed
strategy. Judge Anderson refused to let him follow that strategy.
During the trial Smithart's attorney did not present any evidence
which significantly differed from his offer of proof. It does not
seem unreasonable to me for the attorney to assume that Judge
Anderson would stand by his original ruling. As a result, the
attorney was prevented from arguing to the jury his theory of the
case that there was a reasonable doubt concerning Smithart's guilt
because there was similar circumstantial evidence to support the
conclusion that David DeForest had committed the crime, and that
DeForest had testified against Smithart to deflect suspicion.
It is true that Smithart was able to introduce much of the
evidence which supported his theory that DeForest was an alternative
suspect. However, because Smithart was unable to argue this theory
to the jury and rest his case on it, his defense lacked any
cohesion. He was unable to assemble the circumstantial evidence
which suggested that DeForest could have committed the crime into
an argument which might have made sense to the jury. In my view
this was a serious handicap to the effective presentation of
Smithart's defense.
Whether this handicap was rendered harmless because of the
strong case against Smithart is also a close question. Although the
physical evidence against Smithart was compelling, I am not
convinced that it was sufficient to overcome the fact that Smithart
was prevented from arguing his theory of the case to the jury. I
therefore dissent from the court's decision affirming Smithart's
conviction.
FOOTNOTES
Footnote 1:
For example, on September 7th (six days after M.L.'s body was
found), Smithart mentioned to Investigator Churchill that he had
seen a trooper helicopter flying over the area. Smithart asked if
the troopers were looking for articles of M.L.'s clothing. Smithart
then volunteered that, if M.L.'s shoes were missing, and if the
shoes had been thrown into the river, they would have floated
downstream from the area being searched. M.L.'s shoes were indeed
missing, but the troopers had not released this detail to the
public.
Footnote 2:
Additionally, as noted above, Smithart presented expert testimony
that the paint particles found on M.L.'s body did not match the
samples obtained from Smithart's vehicle.
Footnote 3:
For a thoughtful law review article discussing this test, see
Richard B. Kuhns, "The Propensity to Misunderstand the Character of
Specific Act Evidence", 66 Iowa Law Rev. 777 (1981).
Footnote 4:
M.L. was last seen walking along Tazlina Terrace Drive; her body
was found in an undeveloped subdivision some distance away, in an
area not on her intended route of travel. From the accounts of the
adults who had last seen M.L., and from the statements of the
children who, walking the other way, should have seen M.L. if she
had continued along her intended path, it appeared that M.L. had
rather abruptly disappeared from the road which suggested that
she had been transported by vehicle. Because there was no sign of
struggle on the road, the jury could also reasonably infer that M.L.
had voluntarily entered this vehicle.
Footnote 5:
Given the contradictory offers of proof made by Smithart's
attorney and the prosecutor, there was arguably considerable
uncertainty as to whether major portions of the evidence mentioned
by the defense attorney would ultimately prove to be
(1) substantiated and (2) admissible. It must be remembered that
Judge Anderson was being asked to render a prospective evidentiary
ruling based solely on the competing assertions of the two
attorneys. Under these circumstances, a trial judge might
reasonably decide that it was impossible to tell whether the
evidence admitted at trial would ultimately support a reasonable
inference that DeForest had committed the crime and that therefore
it would be better to restrict the content of the parties' opening
statements until the underlying evidentiary issues were resolved.
However, the record indicates that Judge Anderson's ruling was based
on his interpretation of Marrone rather than any uncertainty about
the various items in the defense attorney's offer of proof.
Footnote 6:
This weapon was tested by firearms experts. The parties later
stipulated that DeForest's pistol was not the murder weapon.
Footnote 7:
Smithart's request to introduce evidence of the orange paint was
made at the very beginning of the trial (prior to opening
statements). Smithart never renewed his request to introduce this
paint evidence, nor did he ever supplement his offer of proof.
Footnote 8:
Smithart's attorney did in fact make a later request to cross-
examine DeForest about his alleged sexual liaison with a 15-year-old
girl, and to introduce extrinsic evidence of this liaison if
DeForest denied it. This request occurred during a break in
DeForest's testimony. Smithart's attorney asserted that the girl
in question was now prepared to testify that the sexual activity had
occurred.
However, Smithart's attorney did not argue that this evidence
was relevant to establish DeForest's propensity to sexually abuse
children. Instead, the defense attorney argued that this evidence
was relevant to rebut DeForest's assertion (during direct
examination) that he coached wrestling at the local school because
he wanted to help children enjoy a better upbringing than the one
he had received.
Smithart's announced purpose was to cross-examine DeForest on
a completely collateral issue his reason for coaching school
sports. If DeForest had denied engaging in sex with the girl, the
rules of evidence would have barred Smithart from introducing the
girl's testimony to impeach DeForest on this collateral issue. See
Shane v. Rhines, 672 P.2d 895, 898 n.2 (Alaska 1983) ("evidence
which is offered to contradict a collateral matter is
inadmissible"); Morrell v. State, 575 P.2d 1200, 1204 (Alaska 1978)
(extrinsic impeachment of a witness concerning a collateral matter
is not allowed).
Moreover, Judge Anderson could properly deny even Smithart's
request to cross-examine DeForest regarding the reasons for his
decision to coach high school wrestling. The judge could
justifiably infer that, regardless of the defense attorney's purpose
in seeking this cross-examination, the primary effect of the cross-
examination would be to suggest to the jury that DeForest was
sexually interested in teenagers. As we have already discussed,
Judge Anderson could properly conclude that DeForest's willingness
to engage in consensual sex with a 15-year-old was not particularly
relevant to the issue of whether DeForest was likely to sexually
assault and kill an 11-year-old, and would in any case be
inadmissible for that purpose.
We further note that the jury heard evidence that DeForest had
married a 17-year-old girl who was pregnant (by him) at the time of
the marriage. Thus, the jury understood that DeForest was sexually
attracted to at least one teenager. For these reasons, we conclude
that Judge Anderson's ruling on this proposed cross-examination (and
proposed presentation of the girl's testimony) was not an abuse of
discretion.
In Smithart's brief to this court, he argues that the proposed
cross-examination of DeForest (and presentation of the girl's
testimony) was relevant to establish that DeForest "had a reason to
curry favor with the prosecution" i.e., to avoid prosecution for
sexual abuse of a minor. Smithart did not make this argument to the
trial judge; he therefore is not entitled to make this argument on
appeal. Jones v. State, 576 P.2d 997, 1000-1001 (Alaska 1978); Dyer
v. State, 666 P.2d 438, 450-451 (Alaska App. 1982) (when a defendant
offers evidence for one purpose at trial and the trial judge
excludes the evidence, the defendant may not argue a different
theory of admissibility on appeal).
