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Markgraf v. State (11/9/00) ap-1705
Markgraf v. State (11/9/00) ap-1705
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers are
encouraged to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
RICHARD G. MARKGRAF, )
) Court of Appeals No. A-7432
Appellant, ) Trial Court No. 4FA-98-1538 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1705 November 9, 2000]
)
Appeal from the Superior Court, Fourth Judicial
District, Fairbanks, Charles R. Pengilly, Judge.
Appearances: James E. McLain, Law Offices of
William R. Satterberg, Jr., Fairbanks, 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: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
Richard G. Markgraf was facing trial for theft. Two of
his co-workers, Michael Salzman and Porter Gilbert, were subpoenaed
to testify as government witnesses at Markgraf's trial. Markgraf
attempted to dissuade these two men from testifying against him.
Markgraf told Salzman, "For an 8-ball of cocaine, I could get
somebody to assassinate you." Markgraf bragged to Gilbert that he
had previously "gotten away" with a hit-and-run, and he warned
Gilbert that "it [wasn't] safe to ride [your motorcycle] in town with
somebody that doesn't like [you]." Based on this conduct, Markgraf
was convicted of two counts of interference with official
proceedings. [Fn. 1]
Markgraf challenges his convictions on two grounds.
First, Markgraf asserts that the trial judge committed error by
allowing a police officer to testify that, when she interviewed
Salzman, he appeared to be fearful. Second, Markgraf argues that
the trial judge should have instructed the jury to distrust
Salzman's testimony (i.e., view it with caution) because Salzman
received money from the Crime Stoppers program for providing a tip
in the theft. For the reasons explained here, we reject both of
Markgraf's contentions and we affirm his convictions.
The police officer's testimony concerning Salzman's
apparent mental state
Fairbanks Police Officer Margaret I. Sullivan was assigned
to investigate Markgraf's threats against Salzman and Gilbert, and
she conducted interviews with both men. At Markgraf's trial,
Officer Sullivan was asked to describe Salzman's demeanor during his
interview:
Prosecutor: Now, ma'am, Mr. Salzman has
testified. We don't need to go in to the substance of what he told
you, but I would like you to talk about the circumstances of your
interview and his demeanor when you spoke to him.
Sullivan: I was asking him [about] the
type of threats [that] he was receiving or had received[,] and his
demeanor was he was nervous. He spoke in a low voice. He told
me he was scared and acted as if, you know, he was. He was kind of
looking over his shoulder, making sure that Mr. Markgraf wasn't
going ... to come in [through] the door.
After hearing Sullivan's answer, Markgraf's attorney
objected that this testimony was inadmissible hearsay. The trial
judge, Superior Court Judge Charles D. Pengilly, replied that
Sullivan had not testified to anything that Salzman said, but had
merely described his demeanor. The defense attorney responded that
he did not object to Sullivan's description of Salzman's physical
demeanor in the sense of "facial features and things like that", but
he objected to Sullivan's characterization of that demeanor the
officer's inferences concerning Salzman's mental state. Judge
Pengilly overruled Markgraf's objection.
On appeal, Markgraf renews his hearsay objection to
Officer Sullivan's description of Salzman's mental state. Markgraf
argues that Salzman's demeanor was a "statement" for purposes of the
hearsay rule that Salzman's facial expressions, his tone of voice,
and his other fearful actions amounted to "nonverbal conduct ...
intended ... as an assertion". [Fn. 2]
Salzman's demeanor may have demonstrated or "communicated"
his fear to Officer Sullivan, but the question for hearsay purposes
is whether Salzman consciously intended his demeanor to be an
assertion about his mental state:
Prior to raising their umbrellas, people do not
say to themselves in soliloquy form, "It is raining," nor does the
motorist go forward on the green light only after making an inward
assertion, "The light is green." The conduct offered in the one
instance to prove it was raining and in the other that the light was
green involves no intent to communicate the fact sought to be
proved[.] ... True, the threshold question whether communication
was intended may on occasion present difficulty, yet the
probabilities against intent are generally so great as to justify
putting the burden of establishing it upon the party urging the
hearsay objection.
John W. Strong et al., McCormick on Evidence (5th ed. 1999), sec.
250,
Vol. 2, pp. 108-09 (footnotes omitted) (emphasis added).
Courts routinely hold that testimony concerning a person's
apparent mental state testimony that the person appeared angry,
fearful, agitated, happy, or excited is not hearsay. For example,
in Cole v. United States [Fn. 3], with the defendant on trial for
robbery by intimidation, the government offered testimony that a
bank teller appeared distraught and upset after the robbery. This
testimony was held not to be hearsay. [Fn. 4] In Partin v.
Commonwealth [Fn. 5], the court rejected a hearsay objection to
testimony that the victim exhibited signs of fear toward the
defendant. [Fn. 6] Similarly, in Layman v. State [Fn. 7], the court
rejected a hearsay objection to testimony that the victim was
fearful and began to cry. [Fn. 8]
In this case, leaving aside Salzman's verbal assertion
that he was scared (which we discuss in the next paragraph), there
is nothing to indicate that Salzman's facial expressions, his
nervousness, his low voice, or his repeated act of looking over his
shoulder were intended to be assertions about his mental state.
Accordingly, Judge Pengilly properly overruled Markgraf's hearsay
objection to Sullivan's description of Salzman's demeanor.
Markgraf also argues that the hearsay rule barred Sullivan
from testifying that Salzman told her "he was scared". This
testimony was offered to prove the truth of the matter asserted, and
so it was hearsay. However, Evidence Rule 803(3) authorizes the
admission of hearsay when the out-of-court statement it is offered
to prove "the declarant's then[-]existing state of mind [or]
emotion". Accordingly, this part of Sullivan's testimony was also
admissible.
Markgraf raises another objection on appeal: he contends
that the State failed to establish that Sullivan possessed the
expertise to draw any conclusion about Salzman's mental state from
Salzman's demeanor. In his brief, Markgraf asserts that Judge
Pengilly apparently allowed Sullivan to testify "as a mind reader".
This argument was not preserved in the trial court. At
trial, Markgraf objected only on hearsay grounds. Moreover,
Markgraf's argument is meritless.
Lay witnesses (i.e., witnesses with no psychological
expertise) are generally allowed to testify about another person's
apparent mental state if the witnesses' conclusions are "rationally
based on [their] perception ... [and are] helpful to a clear
understanding of [their] testimony or the determination of a fact
in issue." [Fn. 9] Thus, the Alaska Supreme Court has held that a
lay witness may offer an opinion as to whether another person
appeared to be intoxicated. [Fn. 10] And this court, in Jackson
v. State [Fn. 11], ruled that a mother's "lifelong relationship to
[her daughter] and intimate knowledge of her daughter's condition"
made her qualified to give lay testimony concerning the extent of
her daughter's mental retardation. [Fn. 12] Compare Morrell v.
State, where the supreme court held that a lay witness could
properly be precluded from expressing an opinion concerning the
cause of another person's mental state. [Fn. 13]
Although Alaska cases have not specifically addressed the
question of whether a lay witness may offer an opinion as to whether
another person appeared scared, courts from other states have
allowed such testimony. [Fn. 14] We agree with these courts that,
so long as the witness's conclusion is rationally based on their
perception and is helpful to a clear understanding of their
testimony (the test established in Evidence Rule 701), a lay witness
may testify that another person seemed scared. Judge Pengilly
therefore properly overruled Markgraf's objection to Sullivan's
testimony.
Markgraf's request for a jury instruction directing the
jurors to view Salzman's testimony with caution
As explained at the beginning of this opinion, Markgraf
threatened Salzman and Gilbert because they were going to appear as
witnesses at his theft trial. Markgraf was charged with theft by
receiving: he had purchased a stolen computer even though he had
a "pretty good idea" that it was stolen. Markgraf brought the
computer to work, where Salzman (one of Markgraf's co-workers) saw
it.
The police were alerted to Markgraf's crime because
Salzman reported the suspected theft to the "Crime Stoppers" hotline.
Salzman later agreed to testify at Markgraf's theft trial. (That
trial never occurred; Markgraf ultimately pleaded no contest to the
theft charge.)
Salzman did, however, testify in the present case the
interference-with-official-proceedings trial. During his testimony,
Salzman stated that he received a $600 reward from Crime Stoppers
for his assistance in the underlying theft prosecution.
Because Salzman received money for his cooperation in the
theft prosecution, Markgraf asked Judge Pengilly to instruct the
jury that Salzman was an "informer" (a witness "who provides testimony
against a defendant for pay"), and thus his testimony should be
viewed with caution. Judge Pengilly declined to give this
instruction. He ruled that, although Salzman might have been an
"informer" for purposes of the earlier theft prosecution, there was
no evidence that Salzman had received money or any other reward for
cooperating in the interference-with-official-proceedings
prosecution a case in which Salzman was himself a victim.
Markgraf concedes that Salzman was not paid for his
cooperation in the present case. He argues, however, that the
earlier theft case is so intimately connected with the present case
that Salzman should be treated as an informer in both cases.
The informer instruction is designed to alert the jury to
pay special attention to the testimony of persons who have a
financial incentive to testify against the defendant. Even though
there is a factual connection between Markgraf's theft case and the
present charge of interference with official proceedings, the
pertinent task is to identify Salzman's motivation for testifying
against Markgraf at the interference-with-official-proceedings
trial. There was no evidence that Salzman had received or would
receive a reward for testifying against Markgraf at the interference
trial. Salzman's motive for testifying is obvious from the charge
itself: he was one of the victims of Markgraf's threats. We
therefore conclude that Judge Pengilly could properly refuse to give
the requested "informer" instruction.
We note, moreover, that although the jury did not receive
an "informer" instruction, they did hear Salzman's testimony that
he had been paid for his cooperation in the underlying theft case.
The jurors received the standard instruction for determining the
credibility of witnesses. In particular, they were told to consider
"any motive the witness might have not to tell the truth, [and] any
interest the witness might have in the outcome of the case." Because
the jury was aware that Salzman had acted as a paid informant in the
underlying theft case, they could take this fact into account when
assessing the credibility of his testimony.
Conclusion
The judgement of the superior court is AFFIRMED.
FOOTNOTES
Footnote 1:
AS 11.56.510(a).
Footnote 2:
Alaska Evidence Rule 801(a)(2).
Footnote 3:
327 F.2d 360 (9th Cir. 1964).
Footnote 4:
See id. at 361.
Footnote 5:
918 S.W.2d 219 (Ky. 1996).
Footnote 6:
See id. at 221-22.
Footnote 7:
652 So.2d 373 (Fla. 1995).
Footnote 8:
See id. at 375.
Footnote 9:
Alaska Evidence Rule 701.
Footnote 10:
See Loof v. Sanders, 686 P.2d 1205, 1213 (Alaska 1984).
Footnote 11:
890 P.2d 587 (Alaska App. 1995).
Footnote 12:
Id. at 590.
Footnote 13:
575 P.2d 1200, 1204-05 (Alaska 1978).
Footnote 14:
See State v. Stojetz, 705 N.E.2d 329, 340 (Ohio 1999) (witness
allowed to testify that the victim was "scared" and "not able to
think"), cert. denied, 120 S.Ct. 455, 145 L.Ed.2d 376 (1999); Felty
v. State, 816 S.W.2d 872, 875 (Ark. 1991) (witness allowed to
testify that a rape victim was "scared" and "trying to get away").
