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Kailukiak v. State (5/8/98) ap-1588
NOTICE: This opinion is subject to formal
correction before publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts, 303 K Street,
Anchorage, Alaska 99501, in order that corrections may be made prior
to permanent publication.
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JOHN KAILUKIAK, )
) Court of Appeals No. A-6134
Appellant, ) Trial Court No. 4BE-94-1155 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1588 - May 8, 1998]
______________________________)
Appeal from the Superior Court, Fourth Judicial
District, Bethel, Mark I. Wood, Judge.
Appearances: Michael D. Dieni, Assistant
Public Defender, and Barbara K. Brink, Public Defender, Anchorage,
for Appellant. Nancy R. Simel, Assistant Attorney General, Office
of Special Prosecutions and Appeals, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
John Kailukiak was convicted of seven counts of first-
degree sexual assault, AS 11.41.410(a)(1), and one count of second-
degree sexual assault, AS 11.41.420(a)(1), for engaging in non-
consensual sexual penetration and non-consensual sexual contact with
his adult niece, S.C.. On appeal, Kailukiak asserts that his
convictions are flawed by various evidentiary and procedural errors.
For the reasons explained here, we affirm Kailukiak's convictions.
Kailukiak was tried on nine counts of first-degree sexual
assault, nine corresponding counts of incest, and one count of
second-degree sexual assault. According to the evidence presented
at trial, Kailukiak first abused S.C. in the mid-1970's, when she
was seven or eight years old. Kailukiak, who lived in Tooksook Bay,
was visiting Bethel and was staying with his sister, S.C.'s mother.
During this visit, Kailukiak performed cunnilingus on his niece,
penetrating her vagina so hard that it hurt.
Kailukiak next assaulted S.C. in 1989, when she was twenty
years old. Kailukiak was again visiting Bethel and staying at
S.C.'s mother's house. Kailukiak lay on top of S.C., pulled down
her pants, and forcibly penetrated her with his penis. S.C. was
able to stop the assault by biting Kailukiak.
Kailukiak assaulted S.C. twice in 1992. On the first
occasion, Kailukiak came to where S.C. was sleeping and digitally
penetrated her. On the second occasion, he grabbed her breasts and
forcibly kissed her.
In March 1994, Kailukiak and his son came to Bethel to
attend the Chamai Festival. S.C. allowed them to stay at her house
while they were in town because her mother's house was already full
of guests. During this visit, Kailukiak assaulted S.C. a number of
different times.
The last sexual assault occurred in May 1994. Kailukiak
showed up at S.C.'s house unannounced. While he was visiting, he
again engaged in non-consensual sexual penetration with S.C..
The next morning, S.C. told her mother what had happened.
Her mother urged her to contact the authorities. The ensuing
investigation led to Kailukiak's indictment.
Kailukiak testified at trial. He admitted that he had
engaged in sexual intercourse with S.C. during the Chamai Festival,
and again in May 1994, but he contended that these acts of
intercourse had been consensual.
The jury found Kailukiak guilty of all of the sexual
assaults except for two of the six that were alleged to have
occurred during the Chamai Festival. [Fn. 1]
Kailukiak's first point on appeal concerns the superior
court's decision to allow a witness to testify by telephone at a
pre-trial evidentiary hearing. Shortly after S.C. contacted the
authorities, State Trooper Daniel Donaldson flew to Tooksook Bay to
interview Kailukiak. When Donaldson arrived, he asked the local
Village Public Safety Officer (VPSO), David Bill, to locate
Kailukiak and have him come in for an interview. Bill contacted
Kailukiak, and later that day Kailukiak participated in an interview
with Donaldson.
Following his indictment, Kailukiak moved to suppress his
statements to Donaldson. He contended that he had been in custody
when he submitted to the interview, and, because of this, his
statements should be suppressed because he had not been advised of
his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct.
1602, 16 L.Ed.2d 694 (1966).
Kailukiak's suppression motion was presented at the
omnibus hearing held on January 9, 1995. The parties recognized
that resolution of Kailukiak's motion would require an evidentiary
hearing, so Judge Wood calendared an evidentiary hearing for
February 15th.
To support his contention that he had been in custody when
he spoke to Donaldson, Kailukiak asserted that VPSO Bill had ordered
him to come and be interviewed by the trooper. Kailukiak's
assertion meant that Bill was potentially an important witness at
the hearing.
It turned out that VPSO Bill was in Hawaii, serving with
the National Guard, on the day scheduled for the evidentiary
hearing. Even though both the State and the defense asked for a
continuance of the hearing so that Bill could attend, Superior Court
Judge pro tem Mark I. Wood decided to have Bill testify by
telephone. Kailukiak's attorney objected to the judge's decision,
but Judge Wood overruled the objection. Pursuant to the judge's
ruling, Bill testified by telephone.
Telephonic testimony of witnesses in criminal cases is
governed by Alaska Criminal Rule 38.1. The pertinent portion of the
rule reads:
The court may allow telephonic participation of
witnesses at bail hearings, omnibus hearings, probation revocation
hearings[,] or at trial with the consent of the prosecution and the
defendant. The court may allow telephonic participation of
witnesses at other hearings in its discretion.
Judge Wood apparently believed that the hearing on Kailukiak's
motion to suppress fell within the category of "other hearings".
While this interpretation is facially plausible, we conclude that
the suppression hearing constituted a continuation of the "omnibus
hearing" for purposes of the rule, and therefore the superior court
was not authorized to let VPSO Bill testify by telephone over
Kailukiak's objection.
The concept of an "omnibus hearing" in criminal cases was
promoted thirty years ago by the American Bar Association in the
first edition of its Standards for Criminal Justice, "Standards
Relating to Discovery and Procedure Before Trial" (Approved Draft,
1970). Standard 5.3 called upon criminal courts to hold a pre-trial
hearing (which the ABA drafters denominated an "omnibus hearing")
at which essentially all pre-trial matters would be resolved. Id.,
Standard 5.3 and Commentary, pp. 114-123. Many of the ABA's
recommendations for the omnibus hearing and related procedural rules
made their way into Alaska's Rules of Criminal Procedure. Criminal
Rules 12(b)-(f) and 16(f) are the most notable Alaska progeny of the
ABA's recommendations.
The intent of ABA Standard 5.3 was that "[a]ll motions,
demurrers[,] and other requests prior to trial should ordinarily be
reserved for and presented ... at the Omnibus Hearing unless the
court otherwise direct[ed]." See paragraph (b). "[If an]
evidentiary hearing ... [was] necessary for a fair and orderly
determination of any issue, the Omnibus Hearing should be continued
from time to time until all matters raised are properly
disposed of." See paragraph (c).
Under Alaska Criminal Rule 16(f)(2)(B)-(C), a judge
conducting an omnibus hearing is under a duty to "rule on any
pending motions which are ripe for decision" and to "schedule any
necessary evidentiary hearings" for matters that are not ripe.
Unlike ABA Standard 5.3(c) from which it is drawn, Rule 16(f)(2)(C)
does not specifically refer to these additional "necessary
evidentiary hearings" as continuations of the omnibus hearing.
However, in the context of interpreting the scope of permitted
telephonic participation under Criminal Rule 38.1, we conclude that
the supreme court intended for these additional evidentiary hearings
to be deemed continuations of the omnibus hearing. To interpret
Rule 38.1 otherwise would lead to arbitrary and inconsistent
results.
To the extent that an omnibus hearing represents a time
for attending to administrative matters, for scheduling additional
court dates, and for presenting argument on motions that will be
decided on the pleadings, it would be unnecessary to include
"omnibus hearings" in the portion of Criminal Rule 38.1 governing
telephonic participation of witnesses. The reason that the
penultimate sentence of Rule 38.1 refers to "omnibus hearings" is
that the resolution of pre-trial motions often requires the taking
of evidence, and a court will often ask the parties to present their
witnesses at the omnibus hearing. When testimony is presented at
the omnibus hearing itself, Rule 38.1 clearly provides that
witnesses may not testify by telephone unless both the government
and the defendant agree.
What, then, of cases like Kailukiak's, where the court
directs the parties to present their witnesses at a future
evidentiary hearing? If we viewed such later evidentiary hearings
as separate from the "omnibus hearings" mentioned in Rule 38.1, then
the parties' right to object to telephonic testimony would hinge on
such factors as the personal preferences of individual judges, the
number of contemplated witnesses and the condition of the court's
calendar on the day set for the omnibus hearing (that is, whether
the court had time to hear the parties' witnesses on that day), and
the differences in semantics among the judicial districts. [Fn. 2]
Trial judges should, of course, be as free as possible to
fashion procedures that expedite the business of their courts and
that satisfy the litigation needs of the parties appearing before
them. With regard to the meaning of the term "omnibus hearing" or
the function of the "omnibus hearing", we do not mean to imply that
one procedure is preferable to another (so long as the mandates of
Criminal Rules 12 and 16(f) are met). We feel certain, however,
that the supreme court (the promulgators of the telephonic testimony
rule) intended the rule to apply uniformly, regardless of these
variations in semantics or procedure. Thus, our duty is to construe
Criminal Rule 38.1 to make sure that the parties' right to object
to telephonic testimony remains the same regardless of which term
the trial court uses to describe the evidentiary hearing or which
procedure the trial court employs to take the testimony needed to
resolve pre-trial motions. We therefore hold that, for purposes of
construing Criminal Rule 38.1, the term "omnibus hearings" includes
the additional evidentiary hearings needed to resolve pre-trial
motions filed under Criminal Rule 12(b)-(c).
Given our construction of Rule 38.1, it is evident that
Judge Wood should not have allowed VPSO Bill to testify
telephonically over Kailukiak's objection. Nevertheless, under the
facts of Kailukiak's case, we find that this error was harmless.
The State's two witnesses at the evidentiary hearing were
Trooper Donaldson and Village Public Safety Officer Bill. Bill's
testimony related solely to what Bill said to Kailukiak to induce
him to participate in the interview with Donaldson. Bill testified
that he asked Kailukiak to come talk to Donaldson. Kailukiak, for
his part, asserted that Bill had worded this "request" more in the
form of a demand. Judge Wood resolved this conflicting testimony
by finding that, while Kailukiak might have subjectively believed
that he was being directed to speak with Donaldson, the objective
facts supported Bill's testimony that the request was in fact worded
as a request.
If we thought that Judge Wood's resolution of this issue
had made any difference to his decision on the motion to suppress,
we would vacate that decision and remand for a new hearing.
However, Judge Wood's additional findings show that it was
irrelevant, for Miranda purposes, what Bill might have said to
Kailukiak to induce him to come down and talk to the trooper.
Judge Wood found that, when Kailukiak entered the
interview room, Trooper Donaldson immediately informed Kailukiak
that he was not under arrest, that he was under no obligation to
talk to Donaldson, and that he was free to go at any time. Judge
Wood further found that, later in the interview, Donaldson again
told Kailukiak that he was not under arrest and that he was under
no obligation to talk to Donaldson. Judge Wood concluded,
"[Kailukiak] was told by the trooper that he didn't have to talk to
him, and [I] can only assume that the defendant ... knew and
understood that he did not have to talk to him[.]" Kailukiak was,
in fact, allowed to leave at the end of the interview, and he was
not arrested until after his indictment, one month later.
Given these findings, even if VPSO Bill initially told
Kailukiak that he had to talk to the trooper, this Miranda issue was
resolved by Judge Wood's findings regarding the ensuing conversation
between Donaldson and Kailukiak. The record yields no reason to
believe that Judge Wood's decision on the motion to suppress would
have been any different even if the judge concluded that Bill had
misrepresented the tenor of his conversation with Kailukiak.
Accordingly, we hold that the error in allowing Bill to testify by
telephone was harmless, and we therefore uphold Judge Wood's denial
of Kailukiak's suppression motion.
Kailukiak's next claim on appeal is based on his trial
attorney's cross-examination of M.B., who is Kailukiak's sister and
S.C.'s mother. During the defense attorney's cross-examination of
M.B., the following exchange occurred:
DEFENSE COUNSEL: You never told
[Kailukiak] not to come to your house, did you?
M.B.: When he was drinking, I didn't like
him to come over.
DEFENSE COUNSEL: And when is the last
time that you've known him to drink?
M.B.: ... Before this incident happened.
DEFENSE COUNSEL: How long ago?
M.B.: Maybe two weeks before ... -- no,
it was ... after he went [into] treatment.
DEFENSE COUNSEL: Pardon me?
M.B.: I mean, this was before he went to
treatment.
Kailukiak's attorney continued to ask M.B. questions about when and
where she had seen Kailukiak drink. The defense attorney did not
stop until the prosecutor finally objected that this line of cross-
examination was irrelevant.
Kailukiak now contends that Judge Wood committed error
when he allowed Kailukiak's attorney to elicit this testimony.
Kailukiak argues that many residents of Bethel (the site of his
trial) have strong feelings about alcoholism, and thus any evidence
of Kailukiak's alcoholism must have prejudiced one or more jurors
against him.
This claim is frivolous. Kailukiak's attorney never
suggested that M.B.'s answers were non-responsive, nor did he seek
any other relief from the court. It is not the trial judge's job
to represent the defendant or to second-guess the strategy employed
by a defense attorney during cross-examination of government
witnesses. Judge Wood was under no obligation to interrupt
Kailukiak's attorney and prohibit him from pursuing this line of
inquiry. There simply was no error.
Kailukiak raises one other claim based on his trial
attorney's cross-examination of M.B.. The defense attorney was
questioning M.B. concerning her awareness that S.C. was afraid of
Kailukiak. The following exchange occurred:
DEFENSE COUNSEL: So, your testimony is
now that [S.C.] told you that she was afraid because of what John
might do to her?
M.B.: Yes.
DEFENSE COUNSEL: Okay. So, when you say
that ... she was afraid because of [Kailukiak], ... that's based on
what [S.C.] said, not just based on what -- a conclusion that you
have. It's just based on what she told you, then?
M.B.: Every one of the family was afraid
of him.
On appeal, Kailukiak argues that this testimony M.B.'s
statement that every member of her family was afraid of Kailukiak
was improper character evidence. Kailukiak acknowledges that his
trial attorney did not object to M.B.'s answer, nor did the attorney
seek any other type of relief from the court. Kailukiak now
contends, however, that when M.B. gave this answer to the defense
attorney's question, Judge Wood was required to declare a mistrial
sua sponte.
We again reject Kailukiak's claim. Even though the
damaging nature of M.B.'s answer might be plain, the defense
attorney was the person responsible for asserting Kailukiak's
rights. We have repeatedly cautioned trial judges not to
precipitously declare mistrials when there has been no defense
request for a mistrial. See, for example, Riney v. State, 935 P.2d
828, 838-39 (Alaska App. 1997), Nelson v. State, 874 P.2d 298, 308
(Alaska App. 1994), and March v. State, 859 P.2d 714, 717 (Alaska
App. 1993). Kailukiak's defense attorney might have refrained from
seeking judicial intervention because he knew, or at least
anticipated, that similar testimony was going to be elicited from
S.C.. Judge Wood did not commit error when he failed to stop
Kailukiak's trial on his own motion.
Kailukiak's next point on appeal arises from his
attorney's cross-examination of the victim, S.C.. The defense
attorney was questioning S.C. about whether she forcibly resisted
Kailukiak's sexual advances; the following exchange occurred:
S.C.: I don't fight back very well. It's
because, most of my life, I have been beaten up. I don't want to
be hit again.
DEFENSE COUNSEL: Not by Mr. Kailukiak,
though?
S.C.: No, I haven't, but I've been hit
enough times to know what it feels like. I don't want to feel it
anymore.
DEFENSE COUNSEL: So, some of the pain
that you have inside of you relates to things that have happened in
your life to you, [doesn't it, S.C.]?
S.C.: I don't want to be hit, and I'm
afraid every time that something's gonna happen, [that] I will get
hit. And I tell you, I'm totally terrified of my uncle, because he
had hurt me, and I have seen him hurt others. I had seen him beat
up his wife. I had seen his wife's face swelled up. I had seen her
in her shirts all bloody from him hitting her.
At this point, Judge Wood interrupted the examination. He
instructed the jury to disregard S.C.'s last statement as being non-
responsive. The judge told the jury, "Mr. Kailukiak is not on trial
for any acts against anybody else, and all you are to consider is
evidence as it pertains to the charges in this case ... [.] I'm
instructing you at this time to disregard that statement."
Shortly after this exchange, Kailukiak's attorney moved
for a mistrial based on S.C.'s answer about Kailukiak's assaults on
his wife. However, Judge Wood denied this motion.
On appeal, Kailukiak argues that, even though the judge
charged the jury to disregard S.C.'s answer, the damage was done and
a mistrial should have been granted. We disagree.
First, S.C.'s answer was both responsive and relevant.
The defense attorney was inquiring why S.C. had not resisted
Kailukiak more forcefully, and S.C. answered that she was afraid to
resist because she personally knew that Kailukiak had severely
beaten his wife. This was relevant and admissible evidence.
Compare Allen v. State, 945 P.2d 1233, 1241-42 (Alaska App. 1997),
and McCracken v. State, 914 P.2d 893, 898-99 (Alaska App. 1996)
(when self-defense is litigated, the defendant's knowledge of the
victim's prior violent acts and the victim's reputation for violence
is relevant and admissible to prove the reasonableness of the
defendant's fear that the victim was about to attack). Judge Wood
erred in Kailukiak's favor when he instructed the jury to completely
disregard S.C.'s answer.
Second, Judge Wood acted within his discretion when he
refused to grant a mistrial and instead decided to remedy the
situation with a cautionary instruction. The judge was in the best
position to assess the impact of S.C.'s answer and to evaluate
whether the jury was capable of heeding his admonition to disregard
it. See Roth v. State, 626 P.2d 583, 585 (Alaska App. 1981). We
have previously held that a trial judge normally acts within his or
her discretion in denying a mistrial and instead giving a cautionary
instruction when a witness, responding to defense cross-examination,
gives a responsive answer that includes inadmissible information.
See Hines v. State, 703 P.2d 1175, 1178-79 (Alaska App. 1985); see
also Preston v. State, 615 P.2d 594, 603-04 (Alaska 1980). We find
no abuse of discretion here.
Kailukiak next contends that he was prejudiced by an error
that the prosecutor made when playing a tape of Kailukiak's
statement to Trooper Donaldson. The parties had agreed beforehand
that a certain portion of Kailukiak's statement to Donaldson would
not be played for the jury because it concerned Kailukiak's prior
assault conviction. The prosecutor played the tape of Kailukiak's
statement up to the beginning of the excluded segment; he then
stopped the tape and attempted to advance it to a point just past
this excluded segment. However, the prosecutor misjudged; when the
tape began playing again, the jury heard Trooper Donaldson say, "Oh,
for an assault?" The prosecutor immediately stopped the tape and
again advanced it, this time past the excluded segment and into the
next admissible portion of Kailukiak's statement.
As soon as the playing of the tape was concluded,
Kailukiak's attorney moved for a mistrial. Judge Wood denied this
motion. Again, we find no abuse of discretion. The only assaults
that the jury knew about were the assaults charged against Kailukiak
in this case. In fact, Trooper Donaldson expressly stated at the
end of the tape that Kailukiak had no prior criminal record. Thus,
only the most far-fetched speculation could have led the jurors to
infer, from the four isolated words they heard, that Kailukiak had
previously been convicted of a different assault. The erroneous
playing of these four words did not warrant a mistrial.
Kailukiak next contends that Judge Wood abused his
discretion when he allowed S.C. to testify concerning the time that
Kailukiak sexually abused her when she was seven or eight years old.
This evidence was admissible. Once Kailukiak asserted the defense
of consent to the five counts from 1994, evidence of his other
sexual assaults upon S.C. became admissible under Evidence Rule
404(b)(3). [Fn. 3]
Leaving Evidence Rule 404(b)(3) aside, Judge Wood further
concluded that evidence of Kailukiak's prior sexual abuse of S.C.
was relevant to establish the relationship between S.C. and
Kailukiak, as well as to corroborate S.C.'s explanation of why she
didn't leave her house in March 1994 (while Kailukiak was staying
there during the Chamai Festival), even though she claimed that
Kailukiak sexually assaulted her several times. S.C. testified that
she didn't wish to leave the house because she feared that Kailukiak
might molest her children the way he had molested her. This
evidence was also potentially relevant to prove the extent of
Kailukiak's sexual attraction to S.C.. See Burke v. State, 624 P.2d
1240, 1249-1250 (Alaska 1980).
Because this evidence was relevant on several different
grounds, we conclude that Judge Wood acted within his proper
discretion when he ruled that S.C. could testify about Kailukiak's
prior act of sexual abuse.
Kailukiak next contends that the prosecutor engaged in
misconduct during his summation to the jury by repeatedly referring
to Kailukiak as a "sex offender". Kailukiak did not object to the
prosecutor's argument, so he now must show plain error. Potts v.
State, 712 P.2d 385, 390 (Alaska App. 1985). Having examined the
transcript of the summation, we find no plain error. In context,
the prosecutor was not appealing to the jurors' prejudices but
rather was summarizing what the prosecutor argued the State had
proved that Kailukiak repeatedly engaged in sex with S.C. over
her verbal protests and her physical resistance. To the extent that
the prosecutor's comments might be criticized, they were less
egregious than the comments that were found not to constitute plain
error in Potts.
Kailukiak's final point on appeal is that Judge Wood
abused his discretion in failing to conduct an after-trial voir dire
of the jurors. After the jury had announced its verdicts and had
been discharged, Kailukiak's attorney received a telephone call from
one of the jurors. The juror told the defense attorney that, during
deliberations, she had felt intimidated and pressured into finding
Kailukiak guilty. The juror asserted that, although she was never
physically attacked, the other jurors had told her to "shut up" when
she attempted to voice her views of the evidence. As a result of
this treatment, the juror said, her spirit was eventually broken to
the point where she felt she had no choice but to accede to the
views of the other jurors.
Following this telephone call, Kailukiak's attorney filed
a motion for a new trial. Based on the one juror's assertions, the
defense attorney asserted that the remaining jurors had engaged in
misconduct during deliberations, and he demanded that Judge Wood
conduct an investigation into what had happened during the jury's
deliberations.
Judge Wood denied both the request for voir dire
examination of the jurors and the motion for new trial. The judge
ruled that, under Evidence Rule 606(b), neither Kailukiak's attorney
nor the juror herself could testify about any of the subjects
described in the telephone call. This ruling was correct. Tanner
v. United States, 483 U.S. 107, 121; 107 S.Ct. 2739, 2748; 97
L.Ed.2d 90 (1987); McDonald v. Pless, 238 U.S. 264, 269; 35 S.Ct.
783, 785; 59 L.Ed. 1300 (1915); State v. Titus, 933 P.2d 1165, 1170,
1171-72, 1173-74 (Alaska App. 1997); Turpin v. State, 890 P.2d 1128,
1131 (Alaska App. 1995). See generally, Stephen A. Saltzburg
et al., Federal Rules of Evidence Manual (7th ed. 1998), Vol. 2,
pp. 899-906 (discussing Federal Evidence Rule 606(b), which is
essentially the same as Alaska Evidence Rule 606(b)).
Evidence Rule 606(b) prohibits a court from examining
jurors "as to any matter or statement occurring during the course
of the jury's deliberations[,] or [as] to the effect of any matter
or statement upon [a] juror's mind or emotions as influencing the
juror to assent to or dissent from the verdict". The rule also
prohibits a court from receiving testimony from third parties (here,
Kailukiak's attorney) "concerning any matter about which [a] juror
would be precluded from testifying". See Meyer v. State, 627 P.2d
636, 638 (Alaska 1981) (holding that the trial court properly
refused to consider juror affidavits describing purported
irregularities in the deliberative process when there was no
allegation of extraneous influence on the jury).
Jurors can be questioned concerning outside influences on
their deliberations for example, fraud, bribery, threats or
coercion by third parties, or other acts of third parties in
obstruction of justice. Van Huff v. Sohio Alaska Petroleum Co., 835
P.2d 1181, 1187 (Alaska 1992); West v. State, 409 P.2d 847, 852
(Alaska 1966). However, allegations of intimidation or verbal
coercion by other jurors during the deliberative process do not
qualify as outside influences. Evidence Rule 606(b) precludes a
court from receiving testimony concerning the kinds of allegations
made by the juror in Kailukiak's case. See United States v.
Stansfield, 101 F.3d 909, 914 (3rd Cir. 1996) (holding that evidence
of one juror's purported intimidation or harassment of another juror
falls squarely within the core prohibition of Federal Evidence Rule
606(b)).
Judge Wood acted properly when he refused to conduct the
voir dire requested by Kailukiak's attorney and when he denied the
motion for new trial based on the juror's allegations.
We have considered and rejected all of Kailukiak's claims
of error. Accordingly, the judgement of the superior court is
AFFIRMED.
FOOTNOTES
Footnote 1:
The jury also found Kailukiak guilty of seven corresponding
counts of incest. However, upon defense motion, the superior court
dismissed those incest counts as being duplicative (for double
jeopardy purposes) of the sexual assault counts. Dismissing the
incest counts may have been technically incorrect. However, for the
purpose of deciding how many convictions should be entered against
Kailukiak, the incest counts would clearly merge with the
corresponding sexual assault counts. See Yearty v. State, 805 P.2d
987, 995-96 (Alaska App. 1991).
Footnote 2:
The court takes judicial notice that, in some judicial
districts in this state, the term "omnibus hearing" is most often
used to describe the pre-trial conference at which evidentiary
hearings are scheduled, while, in other judicial districts, the term
"omnibus hearing" generally refers to the hearing at which evidence
on pre-trial motions is presented.
Footnote 3:
Evidence Rule 404(b)(3) states: "In a prosecution for a
crime of sexual assault in any degree[,] or attempt to commit sexual
assault in any degree, evidence of other sexual assaults by the
defendant against the same or another person is admissible if the
defendant relies on a defense of consent."
