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Fuzzard v. State (12/1/00) ap-1709
Fuzzard v. State (12/1/00) ap-1709
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
JAMES S. FUZZARD, JR. )
) Court of Appeals No. A-7206
Appellant, ) Trial Court No. 4FA-S97-3695 CR
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1709 December 1, 2000]
)
Appeal from the Superior Court, Fourth Judicial
District, Fairbanks, Charles R. Pengilly, Judge.
Appearances: Susan Downie, Assistant Public
Defender, Fairbanks, and Barbara K. Brink, Public Defender,
Anchorage, for Appellant. Marcelle K. McDannel, 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.
STEWART, Judge.
A jury convicted James S. Fuzzard, Jr., of third-degree
assault [Fn. 1] for threatening Bobbi Jo Murphy with a handgun.
Fuzzard argues that the superior court erroneously admitted evidence
of Fuzzard's prior acts of domestic violence against Murphy under
Alaska Evidence Rules 404(b)(1) and (b)(4). Because we find no
abuse of discretion in the admission of this evidence, we affirm.
Facts and proceedings
At one time, Fuzzard and Murphy had lived together, but
by November 1997, they were no longer in a serious relationship.
Even so, they occasionally spent time together and Fuzzard, who had
no car and lived ten miles outside of Fairbanks, sometimes spent the
night at Murphy's apartment in town. Fuzzard and Murphy agreed to
have Thanksgiving dinner together at the Campbell House restaurant
in Fairbanks.
Fuzzard walked into town and arrived at Murphy's apartment
in the early afternoon. They had wine before dinner, and, after
dinner, stopped at the Miner's Bar for beers. Murphy gave Fuzzard
money at the bar and Fuzzard bought cocaine. They returned to
Murphy's apartment and did a line or two of cocaine before Murphy's
friends joined them for drinks and pie.
After Murphy's friends left, Murphy was tired and decided
to lie down. Because Fuzzard was bothering her, she asked him to
leave. When Fuzzard asked her what she meant, she told him to leave
for good. Fuzzard got angry and upset at her for "wasting [his]
time." Fuzzard went into her bedroom and got a .22 caliber revolver
and bullets that he had given her a month earlier for her
protection. He held the gun a few inches away from her head and
said: "I'm going to kill you, you fucking bitch." The gun was
loaded and Murphy feared that Fuzzard might kill her.
Murphy made no eye contact with Fuzzard and in a short
time, Fuzzard said "Oh, I'm not going to kill you." Murphy got
possession of the gun shortly thereafter and tried to unload it but
was able to remove only one bullet, so she put it back in. Fuzzard
then asked for the gun and Murphy handed it to him. He walked
across the room and put the gun on a credenza. When asked why she
handed Fuzzard the gun, Murphy explained that Fuzzard no longer
seemed as angry and she wanted to avoid a struggle over the gun that
might result in an accident.
Murphy said Fuzzard became angry again and told her he
could see why her husband divorced her if this was the way she
treated people. He called her a "fat fucking pig" and said nobody
would want her. He also picked up an open beer and threw it at her.
Murphy called the police and Fuzzard left with the gun.
Fairbanks Police Officer Thomas Clarke contacted Fuzzard
about a quarter of a mile from Murphy's apartment where he was
arrested. Fuzzard did not have the gun. Fuzzard called Murphy from
jail and disclaimed any knowledge of the gun. The police found the
weapon hours later buried in the snow under a bush near Murphy's
apartment.
The grand jury indicted Fuzzard for third-degree assault.
Before trial, Fuzzard moved for a protective order to
preclude the State from introducing evidence that in May 1997 he had
broken into Murphy's apartment and pulled her phone from the wall
when she tried to call the police. In that motion, Fuzzard argued
that Evidence Rule 404(b)(4), [Fn. 2] which permits introduction of
prior acts of domestic violence, was unconstitutional. The State
opposed the motion and argued that the May 1997 incident was
admissible under Evidence Rule 404(b)(1) [Fn. 3] so the court did
not have to decide the constitutionality of Rule 404(b)(4). The
State maintained that the evidence was admissible under Rule
404(b)(1) to establish the reasonableness and actuality of Murphy's
fear, the nature and context of the relationship between Fuzzard and
Murphy, and Fuzzard's recklessness.
At a hearing several weeks before trial, Superior Court
Judge Charles R. Pengilly considered Fuzzard's motion. Judge
Pengilly had reviewed the grand jury testimony and noted Murphy's
testimony that she had given the gun back to Fuzzard after he had
pointed it at her head. Given this evidence, Judge Pengilly
expected that Murphy would be subject to "vigorous cross-
examination" regarding whether she subjectively and reasonably
apprehended serious physical injury. In that context, Judge
Pengilly observed that the prior incident would be relevant to show
that Murphy was intimidated by Fuzzard.
Fuzzard did not contradict Judge Pengilly's prediction
about the content of cross-examination. Instead, Fuzzard responded
that he thought the evidence showed that Murphy was not intimidated.
Judge Pengilly denied Fuzzard's motion and ruled that the May 1997
incident was admissible on three alternative grounds under Evidence
Rule 404(b)(1): to establish the reasonableness and actuality of
Murphy's fear, to prove that the assault was not an accident, and
to show the nature and context of Murphy's and Fuzzard's
relationship. Judge Pengilly also concluded that Rule 404(b)(4) was
constitutional and provided another basis for admission of this
evidence.
The record shows no further discussion of this issue
before opening statements. In opening statements, each party
discussed the May 1997 incident. Fuzzard told the jury that
Murphy's testimony about the May 1997 incident would support his
view that Murphy was not credible, either about the May 1997
incident or the charged assault.
Murphy described the May 1997 incident during direct
examination. Murphy claimed that she and Fuzzard argued at the
Miner's Bar after Murphy refused to give him money. Later that
evening, some people gave Fuzzard money to buy cocaine for them and
he left the bar. Fuzzard called Murphy from her apartment and asked
her to come over and do some of the coke before he turned it over.
Murphy refused and waited until he had left her apartment to return
home. Fuzzard came over later and Murphy asked for her keys back.
Fuzzard gave Murphy the keys and left, but within ten minutes
Fuzzard had climbed up her neighbor's porch and kicked in the screen
on her living room window. Murphy testified that she picked up the
phone to call 911 because Fuzzard refused to leave. She said
Fuzzard responded by pulling the phone out of her hand, severing the
cord. Fuzzard left when Murphy tried to wake the neighbors. Murphy
said she spent the night at a girlfriend's house.
Murphy also described her conduct on the night of the
charged assault. As Judge Pengilly predicted in the pre-trial
hearing, Fuzzard cross-examined Murphy about returning the gun to
Fuzzard. He questioned her about the claim that Fuzzard had
threatened her with the gun.
After cross-examination, Murphy testified about another
incident on Labor Day 1996. Murphy and Fuzzard had been drinking
together at the Miner's Bar. Murphy returned home at 9:00 or 10:00
p.m. Fuzzard came home later and asked for money, which Murphy
refused. A fight ensued and Murphy asked Fuzzard to leave. Murphy
said Fuzzard threw the television remote across the room, breaking
it, and threw a butcher knife at the ceiling. The knife stuck in
the ceiling and the handle fell to the floor. Murphy and Fuzzard
agreed that he would gather his things and move out the next day,
which he did. That night he slept on the couch.
We have held that evidence of a defendant's prior domestic
violence against the victim is admissible in some circumstances to
explain the relationship between those two people. [Fn. 4] Such
evidence can be particularly relevant to explain why one person
might fear the other, or might submit to the other's will without
a struggle. [Fn. 5] But Fuzzard argues that this evidence should
not have been admitted to explain why Murphy handed Fuzzard the gun
after he pointed it at her head because Murphy's testimony
established no logical connection between his prior acts and her
decision to give him the gun. He asserts that the evidence of his
prior misconduct did not show that he could overpower Murphy, and
that Murphy did not claim that she gave him the gun for this reason.
But Fuzzard did not state his objection in these terms
below. Judge Pengilly could reasonably conclude at the pre-trial
hearing that the May 1997 incident was relevant to the jury's
evaluation of the reasonableness of Murphy's fear during the charged
assault and that the evidence provided some background to explain
why she would hand the gun back to Fuzzard after she gained
possession of it. It was incumbent on Fuzzard to raise his present
argument before Judge Pengilly to preserve this objection. [Fn. 6]
Fuzzard also argues that Judge Pengilly erred because he
did not expressly address whether this evidence was barred by
Evidence Rule 403. [Fn. 7] However, Fuzzard's pre-trial memoranda
discussed the requirements of Rule 403. And, Judge Pengilly
recognized that Rule 403 was an additional limitation on the
admission of the evidence while he was considering Fuzzard's motion
for a protective order. We conclude from our examination of the
record that Judge Pengilly's ruling on the motion implicitly
considered whether the probative value of the May 1997 incident
outweighed any prejudicial impact.
The parties' first discussion of the details of the Labor
Day 1996 incident occurred at trial. Fuzzard conceded that the
admissibility of this incident was governed by the court's analysis
on Fuzzard's motion for a protective order. Fuzzard did not claim
that this incident should be excluded under Rule 403. And there are
no circumstances that suggest that Judge Pengilly overlooked the
applicability of Rule 403 to the Labor Day 1996 incident.
Furthermore, even if Judge Pengilly erred by admitting
evidence of both prior incidents under Rule 404(b)(1), he also
concluded that both incidents were admissible under Rule 404(b)(4)
because both earlier incidents and this case meet the definition of
a "crime involving domestic violence" in the rule.
Fuzzard argues that Evidence Rule 404(b)(4) violates the
due process clause of the constitution because it authorizes a court
to admit evidence of prior domestic violence for "propensity"
purposes that is, as circumstantial proof that the defendant was
likely to engage in the domestic violence charged in the current
case. But we have previously ruled that the admission of propensity
evidence does not, per se, violate due process. In Allen v. State,
[Fn. 8] this court acknowledged the law's historical reluctance to
admit evidence of a defendant's past misdeeds as evidence of the
defendant's criminal propensity. [Fn. 9] But we rejected the
contention that propensity evidence was "invariably so prejudicial
as to destroy any possibility of a fair trial." [Fn. 10]
Allen involved a due process challenge to another
subsection of Evidence Rule 404 subsection (a)(2), which
authorizes a court to admit evidence of the defendant's character
for violence to rebut a claim that the victim was the first
aggressor. [Fn. 11] We held that, because trial judges retain the
authority under Evidence Rule 403 to exclude evidence that is more
prejudicial than probative, Evidence Rule 404(a)(2) did not violate
the guarantee of due process. [Fn. 12] We reach the same conclusion
regarding Evidence Rule 404(b)(4).
Fuzzard also argues that any rule that authorizes the
admission of evidence of a defendant's other crimes violates a
defendant's right not to be held to answer for a crime unless it is
charged by indictment or information. [Fn. 13] But Fuzzard was not
"held to answer" for the other crimes or potential crimes mentioned
at his trial. He faced no punishment for any crime other than the
one named in the indictment the current charge of third-degree
assault. Just as the evidentiary use of a defendant's prior crimes
does not violate the double jeopardy clause, [Fn. 14] neither does
the use of such evidence violate a defendant's right to formal
notice of the charges against him.
Before admitting evidence of prior acts of domestic
violence under this rule, trial courts must apply Evidence Rule 403,
excluding the evidence if its probative value is outweighed by its
potential for unfair prejudice. [Fn. 15] Because courts are
required under Rule 403 to exclude prior acts evidence that is more
prejudicial than probative, Rule 404(b)(4) has adequate safeguards
to survive a facial due process challenge. Moreover, in this case,
admission of Fuzzard's prior misconduct did not place him at
unreasonable risk of conviction based on his earlier acts. The prior
acts were not inflammatory, and Fuzzard had ample opportunity to
impeach Murphy's testimony on the prior misconduct and the charged
offense. Finally, the acts were admitted for the very purpose
advanced by the legislature: to resolve the difficult proof
problems posed by conflicting accounts of domestic violence. For
these reasons, Rule 404(b)(4) does not violate due process on its
face or as applied. Although evidence of other acts of domestic
violence does show propensity in a domestic violence prosecution,
under Rule 404(b)(4) the evidence's tendency in this regard can no
longer be deemed unfair prejudice. [Fn. 16]
Fuzzard next argues that Evidence Rule 404(b)(4) violates
equal protection because it is over-inclusive, creating a "vast"
class of defendants against whom prior bad acts evidence is
presumptively admissible, without requiring that the evidence serve
the legislature's purpose of corroborating the testimony of
complaining witnesses caught in an unreported and escalating pattern
of domestic violence. The State responds that Fuzzard's equal
protection claim fails because he has not shown that Rule 404(b)(4)
seriously infringes on a constitutional right.
In Lowell v. State, [Fn. 17] our supreme court rejected
an equal protection claim based on a classification created by the
rules of evidence. The court explained:
Evidentiary rules by their very nature employ
criteria and conditions which render evidence admissible against
some defendants but not others. But states are free to employ such
rules as long as they do not seriously encroach upon basic
constitutional rights.[ [Fn. 18]]
Lowell addressed a claim that former Criminal Rule 26(f), which
permitted the use of prior convictions to impeach a defendant or
witness, created an under-inclusive classification. [Fn. 19] That
is, Lowell claimed that the rule violated the equal protection
rights of defendants with criminal records because it made them more
reluctant to take the witness stand than defendants without records.
[Fn. 20] Fuzzard is not arguing that he was denied equal protection
because defendants convicted of other crimes are not similarly
exempted from the ban against propensity evidence. Rather, he is
arguing that Rule 404(b)(4)'s means-to-ends fit fails constitutional
scrutiny. Although evidence rules can distinguish between different
classes of defendants without running afoul of equal protection,
these distinctions cannot be arbitrary.
In Allam v. State, [Fn. 21] this court described the steps
this court must follow in analyzing an equal protection claim under
Alaska law. First, this court must weigh the individual interest
impaired by the statute against the government's interest in
enacting the statute. Second, if the government's interest is
sufficiently strong,
this court must examine the connection between
the social policies underlying the statute and the means adopted in
the statute to further those policies. Again, depending upon the
importance of the individual interest affected, this nexus between
ends and means must fall somewhere on a continuum between
"substantial relationship" and "least restrictive alternative."[ [Fn.
22]]
Fuzzard has failed to show that Evidence Rule 404(b)(4) infringes
on a fundamental right. And he does not dispute that the government
has a strong interest in addressing the proof problems posed by
domestic violence: abuse that is often repeated, unreported and
unwitnessed. Fuzzard's primary argument is that there is an
inadequate nexus between the legislative purposes of Rule 404(b)(4)
and the means adopted to further those purposes. More specifically,
he argues that the rule casts too broad a net, presumptively
admitting prior criminal acts that have no relevance to the paradigm
of domestic violence. He argues that the legislature should have
conditioned admissibility on the requirement of factual similarity
to ensure that only relevant evidence is admitted. For example,
Rule 404(b)(2) [Fn. 23] has such a similarity requirement.
Although the legislature could have imposed additional
conditions on the admissibility of prior acts of domestic violence
for example, it could have adopted California's approach, and
limited admission to prior acts of assault [Fn. 24] there is a
"substantial relationship" between the means chosen by the
legislature and the ends sought to be achieved. Evidence Rule
404(b)(4) defines domestic violence broadly because it takes many
forms. [Fn. 25] This case illustrates that point: Murphy testified
that Fuzzard broke into her home, interfered with her efforts to
notify the police by pulling the phone from the wall, and, finally,
threatened her with a gun. Limiting admissibility to narrower
categories of abuse or relationships might defeat the goal of
prosecuting perpetrators of domestic violence before the abuse
escalates. We conclude that Fuzzard's argument that Rule 404(b)(4)
exceeds the stated purpose of the legislation is without merit.
Accordingly, even if Judge Pengilly erroneously admitted Fuzzard's
prior bad acts under Rule 404(b)(1), that error was harmless because
the evidence is admissible under Rule 404(b)(4).
Conclusion
The judgment of the superior court is AFFIRMED.
FOOTNOTES
Footnote 1:
AS 11.41.220(a).
Footnote 2:
A.R.E. 404(b)(4) provides:
In a
prosecution for a crime involving domestic violence or of
interfering with a report of a crime involving domestic violence,
evidence of other crimes involving domestic violence by the
defendant against the same or another person or of interfering with
a report of a crime involving domestic violence is admissible. In
this paragraph, "domestic violence" and "crime involving domestic
violence" have the meanings given in AS 18.66.990.
AS 18.66.990 provides in relevant part:
(3)
"domestic violence" and "crime involving domestic violence" mean one
or more of the following offenses or a law or ordinance of another
jurisdiction having elements similar to these offenses, or an
attempt to commit the offense, by a household member against another
household member:
(A) a
crime against the person under AS 11.41[.]
AS 18.66.990 provides in relevant part:
(5)
"household member" includes
(B) .
. . adults or minors who live together or who have lived together[.]
Footnote 3:
A.R.E. 404(b)(1) provides:
Evide
nce
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.
Footnote 4:
See Russell v. State, 934 P.2d 1335, 1341 (Alaska App. 1997).
Footnote 5:
See id. at 1340-41 .
Footnote 6:
See Post v. State, 580 P.2d 304, 308 (Alaska 1978).
Footnote 7:
A.R.E. 403 provides:
Altho
ugh
relevant, evidence may be excluded if its probative value is
outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay,
waste of time, or needless presentation of cumulative evidence.
Footnote 8:
945 P.2d 1233 (Alaska App. 1997).
Footnote 9:
See id. At 1238.
Footnote 10:
Id.
Footnote 11:
See id. at 1237.
Footnote 12:
See id. at 1239.
Footnote 13:
See Alaska Const., art. I, sec. 8.
Footnote 14:
See United States v. Watts, 519 U.S. 148 (1997); Dowling v.
United States, 493 U.S. 342 (1990).
Footnote 15:
See State v. Bingaman, 991 P.2d 227, 230 (Alaska App. 1999)
(noting that a trial judge is under a duty to exclude evidence
offered under Rule 404(b)(4) if its probative value is outweighed
by the danger of unfair prejudice under Rule 403).
Footnote 16:
Cf. Wardlow v. State, 2 P.3d 1238, 1248 (Alaska App. 2000)
(holding that tendency of evidence of prior sexual assaults admitted
under Evidence Rule 404(b)(3) to prove propensity is not "unfair
prejudice" under Evidence Rule 403).
Footnote 17:
574 P.2d 1281 (Alaska 1978).
Footnote 18:
Id. at 1283 (citing Spencer v. Texas, 385 U.S. 554 (1967)).
Footnote 19:
See 574 P.2d at 1284-85.
Footnote 20:
See id. at 1283.
Footnote 21:
830 P.2d 435 (Alaska App. 1992).
Footnote 22:
Id. at 439-40 (citing State v. Enserch Alaska Const., Inc., 787
P.2d 624, 631-32, 632 n.12 (Alaska 1989)).
Footnote 23:
A.R.E. 404(b)(2) provides:
In a prosecution for a crime involving a physical or
sexual assault or abuse of a minor, evidence of other acts by the
defendant toward the same or another child is admissible if
admission of the evidence is not precluded by another rule of
evidence and if the prior offenses
(i) occurred within the 10 years preceding the date of
the offense charged;
(ii) are similar to the offense charged; and
(iii)were committed upon persons similar to the
prosecuting witness.
Footnote 24:
See Cal. Evid. Code sec. 1109; Cal. Penal Code sec. 13700.
Footnote 25:
See AS 18.66.990(3).
