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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
LEONARD J. HOFFMAN, )
) Court of Appeals No. A-6047
Appellant, )Trial Court Nos. 3AN-S93-7782CR;
) 3AN-S94-3093CR
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1562 - December 19, 1997]
______________________________)
Appeal from the Superior Court, Third Judicial
District, Anchorage, Karen L. Hunt, Judge.
Appearances: Carmen L. Gutierrez, Anchorage,
for Appellant. W.H. Hawley, Assistant Attorney General, Office of
Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, Mannheimer and
Stewart, Judges.
COATS, Chief Judge.
Leonard J. Hoffman was convicted by a jury of four counts
of tampering with a witness in the first degree, AS 11.56.540(a)(1)
or (2) & AS 11.16.110(2)(A) or (B), four counts of interference
with an official proceeding, AS 11.56.510(a)(1)(A) or (D) & AS
11.16.110(2)(A) or (B), arson in the first degree, AS 11.46.400(a)
& AS 11.16.110(2)(A) or (B), assault in the third degree, AS
11.41.220(a)(1), and four counts of sexual assault in the first
degree, AS 11.41.410(a)(1). On appeal, Hoffman raises two
issues: first, he asserts that the trial court erred by
communicating with the jury outside the presence of Hoffman and his
counsel; second, he contends that the trial court erred by
admitting evidence of an assault which Hoffman allegedly committed
prior to committing the assault and sexual assaults for which he
was ultimately convicted. We affirm.
At around midnight on October 12, 1993, Hoffman knocked
on the door of the residence of M.B. M.B. had known Hoffman for
about five years and had engaged in acts of prostitution with him
on previous occasions. When M.B. answered the door she was wearing
only a negligee and a pair of satin underwear. Since M.B. was
acquainted with Hoffman, she let him inside. Once inside, Hoffman
asked M.B. if anyone else was present; after M.B. answered "no"
Hoffman put one hand over M.B.'s mouth and wielded a knife with the
other hand. A struggle ensued during which Hoffman shoved M.B.'s
face into a couch and told her that he was going to "stick" her.
During this struggle, M.B. scratched Hoffman's face. Hoffman then
ripped M.B.'s underwear off and tried to tie the underwear around
her head and then tried to stuff it in her mouth. After he was
unsuccessful in stuffing M.B.'s underwear in her mouth, Hoffman
ceased the attack and began talking to M.B.
After the attack, Hoffman told M.B. that he always paid
before and that he had never done anything like this before. He
also told M.B. that he had just killed a couple of black people and
that they beat him up with a baseball bat. M.B. then asked Hoffman
to leave. In response, Hoffman asked for M.B.'s car keys. After
M.B. gave Hoffman her keys, Hoffman told M.B. that he would leave
her car at the Carrs Aurora Center, and M.B. agreed not to call the
police. After Hoffman left with her car, M.B. walked to the Carrs
Aurora Center. When M.B. did not find her car at the center, she
called the police and reported the assault, identifying Hoffman as
her attacker.
Later in the early morning of October 13, 1993, K.V. was
awakened by a knock on the door of her residence. K.V. looked out
the window and saw Hoffman standing outside. K.V. knew Hoffman
because he had dated K.V.'s sister. Hoffman "looked like he'd been
in a fight" and asked K.V. to let him in to use her phone. Hoffman
stated, "Help me, open the door, is your sister home, some niggers
beat me up, I think my arm is broken." K.V. then opened the door
and let Hoffman in.
Once inside K.V.'s trailer, Hoffman asked K.V. to get him
some hydrogen peroxide and an Ace bandage; K.V. retrieved these
items while Hoffman used the phone. K.V. noticed that Hoffman had
a scratch under his eye and appeared to have a hurt wrist. While
K.V. wrapped Hoffman's wrist with the bandage, Hoffman was saying
"those f-ing niggers, those f-ing niggers." Hoffman was upset,
dripping with sweat, and pacing back and forth. K.V. talked with
Hoffman and tried to calm him down. Hoffman then asked K.V. if he
could use the bathroom. Because K.V. had become leery of Hoffman,
she told him that he shouldn't use the bathroom because her
boyfriend was in the back room. However, Hoffman disregarded
K.V.'s instructions and walked to the back room. After seeing that
no one else was in the trailer, Hoffman indicated to K.V. that he
was upset that she had lied to him. K.V. responded by asking
Hoffman to leave; Hoffman agreed and began to walk out of the
trailer.
As K.V. followed Hoffman out of the trailer, Hoffman
turned around, grabbed K.V. with his hand over her mouth, threw her
onto the daybed and got on top of her. Hoffman then ripped off
K.V.'s clothes and took a knife out of his back pocket. After he
bound K.V.'s wrists Hoffman picked K.V. up and pushed her into
another room. While holding the knife, Hoffman then forced K.V. to
perform fellatio on him. Subsequently, Hoffman forcibly penetrated
K.V.'s rectum and vagina with his fingers, attempted to penetrate
her rectum with his penis, and forcibly penetrated her vagina with
his penis. Throughout this attack Hoffman hit and slapped K.V.,
pinched and twisted her breasts, and ran the knife back and forth
across her naked body.
After the attack, K.V. asked Hoffman if he was hungry.
Hoffman answered that he was hungry and K.V. followed him to the
kitchen. K.V. then placed a TV dinner in the microwave. While
Hoffman looked in the freezer for more food, K.V. ran out of her
home to a neighbor's house where she called 911.
Shortly thereafter, the police arrived on the scene.
After K.V. went to the hospital, she returned to her residence to
obtain some clothing. While K.V. was gathering her clothes, she
found two pair of panties which were not hers on her daybed. M.B.
had purchased these items the previous day and had left them in her
car. K.V. testified that she found Hoffman's jacket with M.B.'s
car keys and house keys in the pocket. K.V. also testified that
M.B.'s car was in K.V.'s driveway.
Hoffman was arrested on October 15, 1993, and remained
incarcerated pending trial. While in jail, Hoffman called William
Lopez and Gilbert Montiel and asked them to make threatening calls
to K.V. in order to keep her from testifying. Per Hoffman's
instructions, on November 22, 1993, Lopez made three threatening
phone calls to K.V.
In late November 1993, Hoffman called Shannon Kennington
and offered him a gram of heroin to shoot at M.B.'s trailer.
Kennington accepted Hoffman's offer and in late November or early
December, 1993, Kennington fired five or six shots into what he
thought was M.B.'s trailer. However, Kennington fired the shots
into the trailer next to M.B.'s trailer.
After the shooting, Hoffman continued to ask Kennington,
Montiel and Lopez to intimidate K.V. and M.B. On December 11,
1993, M.B.'s neighbor found a burnt out Molotov cocktail in the
driveway between his trailer and M.B.'s trailer. Two days later,
M.B. found a partly burned Molotov cocktail in front of her
trailer. On January 6, 1994, at Hoffman's request, Montiel and
Lopez threw a Molotov cocktail through K.V.'s living room window.
Finally, on April 11, 1994, Hoffman offered Kennington $1000 to
firebomb M.B.'s trailer.
On October 26, 1993, the grand jury returned a seven-
count indictment (3AN-S93-7782CR) against Hoffman. Counts I and II
charged Hoffman with assault in the third degree and assault in the
fourth degree; these charges arose from his assault on M.B. Count
III charged Hoffman with assault in the third degree against K.V.
and counts IV through VII charged him with sexual assault in the
first degree against K.V.
On May 4, 1994, a grand jury returned a nine-count
indictment against Hoffman. Counts I, II and III charged Hoffman
with tampering with a witness in the first degree for attempting to
influence the testimony of M.B. on three occasions in late 1993.
Count IV charged Hoffman with tampering with a witness in the first
degree for attempting to influence the testimony of K.V. on
January 6, 1994. Counts V through VIII charged Hoffman with
interference with official proceedings for attempting to influence
the testimony of M.B. and K.V. on four occasions between November
1993 and January 6, 1994. Finally, Count IX charged Hoffman with
arson in the first degree for the firebombing of K.V.'s residence
on January 6, 1994.
On May 9, 1994, the state moved to join the two
indictments for trial. Hoffman opposed joinder of the indictments.
Judge Hunt granted the state's motion to join the two indictments;
however, Judge Hunt ordered the assault counts pertaining to M.B.
severed from those pertaining to K.V.
On October 12, 1994, Hoffman filed a motion in limine
seeking to exclude evidence of the assault on M.B. from the trial
for the assault on K.V. On December 16, 1994, Judge Hunt denied
this motion and ruled that evidence of the assault on M.B. was
admissible to show Hoffman's state of mind at the time of the
assault on K.V.
The trial on the charges involving assaults against K.V.
and the charges in the second indictment were joined but
bifurcated. Thus, the jury first deliberated on the sexual assault
and assault charges involving K.V. The jury then considered
additional evidence pertaining to the second indictment and
deliberated on those charges. Hoffman was never tried for the
alleged assault on M.B. and those charges were dismissed.
At the first stage of the trial, M.B. testified as a
witness for the state. M.B.'s testimony described Hoffman's attack
on her in detail. Subsequently, Judge Hunt instructed the jury to
consider M.B.'s testimony for the limited purposes of testimonial
completeness and establishing Hoffman's state of mind.
After the conclusion of the first stage of the trial, the
jury began its deliberations at around 3:00 p.m. on February 16,
1995. The following discussion occurred immediately after the jury
was excused for deliberations in the first phase of the trial:
THE COURT: Okay. Whenever I get anything out
from the jury that touches on the merits of the case, or touches on
their deliberations on the case, then my intent will be that I will
call each counsel and call for Mr. Hoffman, we'll go on record,
we'll resolve it and then proceed. Any comments? . . . Does the
defendant and does the state waive presence during any playback
which may be requested?
PROSECUTOR: The state does waive.
. . . .
DEFENSE COUNSEL: Your Honor, I've discussed
this with Mr. Hoffman and he will waive appearances, however, I
would like to be notified when there are playback.
THE COURT: [W]hat I'll do then, since nobody
wants to be here, I'll just have my staff call and tell you that
playback of such and such and so and so. . . .
On February 17, 1995, at 10:14 a.m., the court received
a note from the jury. The jury's note read as follows: "We would
like to rehear K.V.'s testimony along [with] log notes[.] If at
all possible - we would also like to listen to Copeland and Dr.
Riley[.]" Six minutes later, without notifying counsel or Hoffman,
Judge Hunt responded, "[a]s soon as we can arrange a courtroom, you
can rehear K.V.'s testimony (10-12 hrs) Copeland's testimony (1-
[1.5] hrs) and Dr. Ripley's testimony (45 min-60). Because of
maintenance going on in the courthouse, you may be moved around."
At 11:00 a.m., before the jury had started to listen to any
playbacks, the jury issued a second note informing the court that
they had reached a verdict on all counts. The jury convicted
Hoffman of counts III through VII in case No. 3AN-S93-7782CR.
Before the second phase of the trial began, Hoffman's
attorney expressed to the court her concern that she was not
informed of the communication between the court and the jury. She
also asked that the court provide a copy of the note between the
judge and the jury. However, she never asked for a mistrial or for
any other remedy.
After hearing additional evidence, the jury began
deliberations on the charges in the second indictment.
Subsequently, the jury convicted Hoffman of all nine counts.
Hoffman now claims that Judge Hunt committed error when she
responded to the jury's playback request without consulting Hoffman
or his attorney.
In Dixon v. State, 605 P.2d 882, 884 (Alaska 1980), the
court stated:
Under both the United States Constitution
and the Alaska Constitution the right of the defendant to be
present at every stage of the trial has been recognized. Included
within the scope of this right is the period of jury deliberations;
thus, the defendant has the right to be present whenever any
communication between the court and the jury occurs during those
deliberations. In Alaska, this constitutional right has been
further implemented by the provisions of Criminal Rule 38(a).
(Footnotes omitted.)
Alaska Criminal Rule 38 provides in pertinent part:
Rule 38. Presence of the Defendant.
(a) Presence: Required. The defendant
shall be present at the arraignment, at the preliminary hearing, at
the time of plea, at the omnibus hearing, and at every stage of the
trial, including the impaneling of the jury and return of the
verdict, and at the imposition of sentence, except as otherwise
provided in this rule.
(b) Continued Presence Not Required.
The further progress of the trial to and including the return of
the verdict shall not be prevented whenever a defendant, initially
present:
(1) Is absent voluntarily after the
trial has commenced[.]
When the trial court communicates with the jury in
violation of the defendant's right to be present at every stage of
the trial we are to reverse the conviction unless we find the error
is harmless beyond a reasonable doubt. Dixon, 605 P.2d at 884.
The state contends that Hoffman waived his right to be
present at jury playbacks, and therefore Judge Hunt did not err in
communicating with the jury. However, we do not lightly infer the
waiver of an important constitutional right. See Wilson v. State,
680 P.2d 1173, 1176 (Alaska App. 1984). The record of the
discussion which occurred immediately after the jury was excused
for deliberations after the first phase of the trial shows that
Hoffman waived the right to be present during the playbacks.
However, that waiver did not authorize Judge Hunt to communicate
with the jury in his absence. Therefore, Judge Hunt erred when she
communicated with the jury.
The next question which we must answer is whether this
error was harmless beyond a reasonable doubt. Hoffman cites Cox v.
State, 575 P.2d 297, (Alaska 1978) and Dixon v. State, 605 P.2d 882
(Alaska 1980), in support of his contention that the error was not
harmless.
The defendant in Cox was tried for assault with intent to
commit rape. The defendant relied on the defense of alibi. To
support this defense, the defendant presented the testimony of two
alibi witnesses. Cox, 575 P.2d at 298-99. One hour after the jury
began deliberations, the jury requested playback of the testimony
of these two witnesses. The trial judge denied this request and
informed the jury that they could renew their request at a later
time. Id. The jury subsequently convicted Cox without listening
to the playbacks. Neither Cox nor his attorney learned of the
request until after the verdict. Id. at 298. The court reversed
Cox's conviction, holding that Cox was denied his right to be
present at every stage of the trial. The court concluded that the
error was not harmless beyond a reasonable doubt. Id. at 300-01.
In Dixon, the defendant was tried on charges of rape.
Dixon presented a defense of consent. To a large extent, the
result of the trial rested on the jury's assessment of whether
Dixon or the complaining witness was more credible. 605 P.2d at
888. Shortly after deliberations began, the jury requested
playbacks of the victim's and the defendant's testimony. Without
consulting Dixon or either counsel, the trial judge sent a note to
the jury stating that he would not allow the jury to hear all of
the requested testimony again, but he would allow them to hear a
portion of the testimony. Id. at 883. One hour later the jury
sent a note stating, "We need nothing more at this time apparently.
Thank you[.]" Without hearing the requested testimony, the jury
returned a verdict of guilty five hours later. Id. at 883-84. On
appeal, the state conceded, and the court found, that the trial
court's communication was error. Id. at 884. The court also found
that the error was not harmless beyond a reasonable doubt and
accordingly reversed Dixon's conviction. Id. at 889.
In Dixon the court stated:
The trial judge's response, informing the jury
that he could not allow them to hear "all of the testimony of a
witness to be replayed" and suggesting that the jury narrow its
request, may have caused the jury to abandon that request,
particularly as it may have placed considerable pressure on the
minority of two members of the panel who apparently initiated the
request. Had the defendant been present and his counsel allowed
the chance to influence the trial court's decision, the trial court
might have been persuaded to allow the jury's request or to phrase
his preference for a narrower request in less absolute terms.
While we do not reach the question whether the trial court's
response in itself amounted to an abuse of discretion, we hold that
in the circumstances presented here the superior court committed
reversible error by responding to the jury's request out of the
presence of and without consultation with the defendant and his
attorney.
Id. at 888-89 (footnotes omitted).
Hoffman contends that Judge Hunt's response to the jury,
in which she informed the jury of the length of the testimony which
the jury had requested and in which she indicated that the jury
would face some logistical difficulties because of the "maintenance
going on in the courthouse," tended to discourage the jury from
hearing the requested testimony. Hoffman contends that his case is
therefore factually similar to Cox and Dixon. We disagree. In Cox
and Dixon, the trial judges' responses to the jury could have
discouraged the jury from listening to the requested testimony.
However, in Hoffman's case, the jury asked to hear the testimony of
K.V., Copeland, and Dr. Ripley. Judge Hunt's communication granted
the jury's request. Although Judge Hunt's response notified the
jury of the length of the requested testimony, the jury was
certainly aware of the approximate length of testimony which they
requested. The jury had been present in court when these witnesses
testified. In fact, the testimony of the witnesses was in all
probability much more lengthy when it was originally given, given
the recesses and delays necessary to present live testimony. We
therefore conclude that even though Judge Hunt's note informed the
jury of the anticipated length of the replay, there was no
reasonable possibility that this information discouraged or
deterred the jury from pursuing its request. We also note that
nothing in Judge Hunt's response prevented the jury from narrowing
their request. [Fn. 1]
We also fail to see that informing the jury that they
might have to be moved at some point because of maintenance in the
courthouse would have an adverse influence on the jury's decision
to listen to testimony of the requested witnesses. We accordingly
conclude that the Cox and Dixon cases are distinguishable and
conclude that Judge Hunt's communication with the jury, though
error, was harmless error beyond a reasonable doubt. [Fn. 2]
Hoffman contends that the trial court committed
reversible error by admitting evidence of the assault on M.B. in
the trial for the sexual assault on K.V. Hoffman asserts that this
evidence was not relevant for any purpose other than to show
propensity and therefore was inadmissible under A.R.E. 404(b). The
state counters that M.B.'s testimony was admissible to show
Hoffman's state of mind at the time of the attack on K.V.
"The admissibility of evidence is largely within the
trial court's discretion and its rulings will not be overturned on
appeal in the absence of an abuse of discretion." Hawley v. State,
614 P.2d 1349, 1361 (Alaska 1980); M.R.S. v. State, 897 P.2d 63, 66
(Alaska 1995). Evaluating the admissibility of "other acts
evidence" consists of a two-step analysis. First, under 404(b)(1)
the court must determine whether the evidence has relevance apart
from the defendant's propensity to engage in similar misconduct.
[Fn. 3] Second, if the court determines that the evidence has some
relevance apart from propensity, it must determine whether the
nonpropensity relevance outweighs the prejudicial impact under
A.R.E. 403. Jordan v. State, 895 P.2d 994, 999 (Alaska App. 1995);
Lerchenstein v. State, 697 P.2d 312, 315 (Alaska App. 1985).
Hoffman was charged with engaging in a violent sexual
assault upon K.V.; Hoffman defended by asserting that he had not
assaulted K.V. (and that his sexual activity with her had been
consensual). Thus, the jury was asked to decide whether K.V. had
been coerced by force into engaging in sexual activity with
Hoffman, and whether Hoffman had recklessly disregarded K.V.'s lack
of consent. See Reynolds v. State, 664 P.2d 621 (Alaska App.
1983).
We conclude that M.B.'s testimony was relevant to
resolving these issues. Hoffman's violent (and apparently
inexplicable) assault on M.B. occurred just prior to his encounter
with K.V.; it therefore can be inferred that Hoffman was in the
same emotional state during both encounters. We faced a similar
evidentiary question in Lerchenstein, 697 P.2d at 317-19, where we
held that Evidence Rule 404(b) allowed the introduction of evidence
that a murder defendant had been "angry and combative . . .
immediately prior to the [homicide]." Id. at 319.
[T]he primary issue . . . was whether
Lerchenstein was acting in self-defense when he shot [the victim].
In order to establish that Lerchenstein did not act in self-
defense, the state was entitled to rely on evidence indicating
that, at the time of the shooting, [Lerchenstein] was angry,
emotionally agitated, and extremely combative in other words,
that he was not acting reasonably. . . . Since this evidence had
specific relevance beyond its mere tendency to establish a
propensity toward violence, its admission was not categorically
precluded by Evidence Rule 404(b).
Id. at 317-18. We similarly conclude that, under the facts of this
case, Hoffman's just-completed assault on M.B. had "specific
relevance beyond its mere tendency to establish a propensity toward
violence."
Because this evidence had a valid non-propensity purpose,
Evidence Rule 404(b) did not categorically exclude it.
Nevertheless, the trial judge still had to weigh the probative
value of this evidence against its potential for unfair prejudice
under Evidence Rule 403. In Hoffman's case, Judge Hunt gave
extensive attention to this evidentiary question. In fact, she
initially excluded the evidence in a pre-trial ruling. Later, she
changed her mind and decided that the relevance of this evidence to
establish Hoffman's state of mind outweighed its potential for
unfair prejudice and justified its admission. Having examined the
record, we conclude that Judge Hunt's ruling was not an abuse of
discretion. M.R.S., 897 P.2d at 66.
The judgment of the superior court is AFFIRMED.
FOOTNOTES
Footnote 1:
Out of the presence of the jury, just as deliberations were
starting, Judge Hunt informed the parties that it was her policy to
require a jury to hear the complete testimony of any requested
witness. If the jury in Hoffman's case had requested only a
partial replay of any witness's testimony, then any communication
of this "all or nothing" policy could have had the effect of
discouraging the jury from pursuing its request for playbacks. If
Judge Hunt had sent such a communication to the jury without
consulting Hoffman and his attorney, it would have constituted
reversible error under Dixon and Cox. However, the jury note in
this case indicated an apparent desire to hear the complete
testimony of the three named witnesses, and Judge Hunt's response
gave every indication that the court would honor the jury's
request.
Footnote 2:
When a defendant is aware, prior to the verdict, of an
improper ex parte communication and the defendant does not object,
the defendant waives any error. See Owens v. State, 613 P.2d 259,
263 (Alaska 1980). It therefore appears that Hoffman waived any
error as to the verdicts which the jury returned during the second
phase of the trial which commenced after he learned of the ex parte
communication. Since we find harmless error, we need not resolve
the waiver issue.
Footnote 3:
A.R.E. 404(b)(1) provides:
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. It 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.
