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Fitts v State (05/25/2001) ap-1744
Fitts v State (05/25/2001) ap-1744
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 LORENZO FITTS, II, )
) Court of Appeals No. A-7254
Appellant, ) Trial Court No. 3AN-97-9089 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1744 May 25, 2001]
)
Appeal from the Superior Court, Third Judicial
District, Anchorage, Larry D. Card, Judge.
Appearances: Douglas O. Moody, Assistant
Public Defender, and Barbara K. Brink, Public Defender, Anchorage,
for Appellant. W. H. Hawley, Jr., 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.
James Lorenzo Fitts appeals his conviction for first-
degree robbery. [Fn. 1] He contends that much of the evidence
against him was obtained during an illegal search of his room.
Fitts also contends that the judge who presided over his trial
wrongfully prevented his attorney from asking certain questions of
a government witness, questions that would have revealed a potential
defense to the robbery charge. Finally, Fitts contends that the
prosecuting attorney engaged in improper argument during his
summation to the jury. For the reasons explained here, we affirm
Fitts's conviction.
Underlying facts
In the early morning of November 9, 1997, a youth who
identified himself as "J.D." called for a taxi. Cab driver Christian
Eckman was dispatched to answer this call. Eckman picked up two
youths, later identified as James Fitts and Mario Gonzalez-LeBaron.
The two youths told Eckman to drive them to 5720 East Fourth Avenue.
When they arrived at that address, Fitts pulled out a black semi-
automatic pistol, pointed the gun at Eckman's head, and announced,
"this is a fucking jack" [i.e., a robbery].
Eckman struggled, but Fitts and Gonzalez subdued him by
striking him some thirty to forty times. Eckman ultimately
surrendered his bankroll: a $100 bill, three $20 bills, a $5 bill,
and some $1 bills. Fitts and Gonzalez then ran off into some nearby
woods.
When police officers arrived to investigate, they
discovered Fitts's wallet in the back seat of the cab. Using the
information in this wallet, the police contacted Fitts's mother, who
gave the officers a telephone number to contact her son. This
telephone number belonged to an apartment at 5701 Rocky Mountain
Court, a couple of blocks from the scene of the robbery. The police
went to this apartment, which was rented by Gonzalez's mother, Sarah
LeBaron. After LeBaron allowed them to enter, the officers found
Fitts and Gonzalez in an upstairs bedroom.
The officers arrested Fitts and Gonzalez, and they then
asked Sarah LeBaron for permission to search the apartment. LeBaron
signed a written consent-to-search form, and the police conducted
a search of the bedroom where they had found Fitts and Gonzalez.
During that search, the officers opened a saxophone case
belonging to Fitts. They found a loaded handgun hidden in the lining
of the case. The officers also found Gonzalez's wallet in a bureau.
This wallet contained $175 in cash, including a $100 bill and some
$20 bills.
Meanwhile, the officers asked their dispatcher to contact
Eckman and have him come to 5701 Rocky Mountain Court. When Eckman
arrived, he positively identified Fitts as the robber who held the
gun on him.
The legality of the search of Fitts's room
Following his indictment, Fitts asked the superior court
to suppress the evidence found during the search of the bedroom.
Fitts conceded that the residence was owned (actually, rented) by
Mario Gonzalez's mother, Sarah LeBaron. Fitts further conceded that
the police lawfully obtained her consent for the search.
Nevertheless, Fitts claimed that LeBaron did not have the authority
to consent to a search of the bedroom that he shared with LeBaron's
son, Mario Gonzalez. Fitts asserted that he and Gonzalez were
LeBaron's subtenants that they each paid a monthly rent to
LeBaron, and that the bedroom was their exclusive space within the
house.
At an evidentiary hearing, both Fitts and LeBaron
testified in support of these contentions. However, their testimony
was at odds with the information that LeBaron gave the police on the
night of the robbery. At that time, when the police questioned
LeBaron about Fitts's status as a resident in her apartment, LeBaron
told the officers that Fitts was staying in her son's bedroom for
free. She also told the officers that she enjoyed complete access
to every room in the house, including the bedroom shared by Fitts
and her son. LeBaron further informed the police that she had had
enough of Fitts's and Gonzalez's activities, and that she was about
to kick them out.
On appeal, Fitts argues that the testimony presented at
the evidentiary hearing, if believed, proved that LeBaron did not
have the authority to consent to a search of Fitts's bedroom. Fitts
relies on case law holding that landlords do not have the authority
to consent to a search of a tenant's apartment. [Fn. 2] Fitts
argues that his situation is analogous to these cases because he was
renting a private room within LeBaron's apartment.
We need not resolve this issue. Even if Sarah LeBaron did
not actually have the authority to consent to a search of Fitts's
bedroom, the search would still be valid if she had the apparent
authority to consent to the search. [Fn. 3] That is, the police
could lawfully search Fitts's bedroom so long as they reasonably
believed that LeBaron had the authority to authorize the search.
[Fn. 4] The test is whether the information available to the
officers, viewed with reasonable caution, would have warranted the
conclusion that LeBaron had authority over the premises to be
searched. [Fn. 5]
Even assuming that Fitts's and LeBaron's testimony at the
evidentiary hearing was true in every respect (i.e., even assuming
that Fitts and Gonzalez were rent-paying subtenants in LeBaron's
apartment, and that LeBaron had granted Fitts and Gonzalez exclusive
control over the bedroom they occupied), the police were not aware
of these facts when they asked for LeBaron's consent to search the
apartment. The officers knew only what LeBaron had told them: that
she was in control of the apartment, that Fitts was not paying rent,
and that Fitts was staying there at her sufferance.
The "apparent authority" doctrine will not validate a
consent search when the police unreasonably turn a blind eye to
facts that would undermine a person's claim of authority over the
property. The police can not rely on a consenting party's
unreasonable assertions of authority, and, in ambiguous
circumstances, they must inquire into the basis of the consenting
party's authority. [Fn. 6] But here the circumstances tended to
support LeBaron's assertion of authority.
The bedroom was not set up as a separate apartment.
Rather, it was simply one of the bedrooms in LeBaron's two-bedroom
apartment. The main occupant of this bedroom was LeBaron's son,
Mario Gonzalez. Gonzalez was sixteen years old not an age where
one would expect to find him in a landlord-tenant relationship with
his mother. And Fitts was sleeping on a mattress on the floor of
the bedroom, a circumstance that tended to corroborate LeBaron's
assertion that Fitts was a guest who was staying there for free.
A person may consent to a search of premises or property
if that person "generally [has] joint access or control for most
purposes". [Fn. 7] Given the information known to the police
(LeBaron's statements and the surrounding circumstances), the police
could reasonably conclude that LeBaron had this degree of authority
over the bedroom, and that LeBaron therefore had the authority to
consent to the contemplated search. Even assuming that the police
were in error (i.e., even assuming that LeBaron did not actually
possess the requisite authority), the officers' search of the
bedroom was still lawful under the doctrine of apparent authority.
Fitts argues that, even though the circumstances might
have supported the conclusion that LeBaron had authority over the
room, the police should have questioned Fitts and Gonzalez to get
their view of this matter. Fitts contends that, instead of making
a good-faith attempt to clarify who had authority over the room, the
police "whisk[ed]" him and Gonzalez away so that they would not be
available to protest when LeBaron stated that she had authority over
the bedroom.
But Fitts and Gonzalez had just been arrested for armed
robbery; the police were authorized to take them out of the house
and transport them to a police station or to jail. There is no
indication that the police treated Fitts and Gonzalez differently
from other felony arrestees, much less that any different treatment
stemmed from the police's desire to make sure that the boys would
not be present to dispute LeBaron's consent to the search of the
bedroom.
For these reasons, we hold that the officers' search of
the bedroom was a valid consent search.
The legality of the search of Fitts's saxophone case
We have just concluded that the officers acted legally
when they entered and searched Fitts's bedroom. But the ultimate
question is whether the police acted legally when, during their
search of the bedroom, the officers opened Fitts's saxophone case
and discovered the handgun concealed inside it. This is a more
difficult question.
When a guest brings a closed container into their host's
home, the situation almost inevitably involves overlapping property
and privacy interests. In Ingram v. State [Fn. 8], this court held
that a host had validly consented to the search of a guest's jacket
and wallet items which are normally considered personal to the
owner. We relied heavily on the fact that the guest left these
items in a common area of the house. But Fitts's appeal involves
a closed (albeit unlocked) instrument case that was left in the
bedroom that Fitts occupied.
Courts reach differing conclusions when presented with
similar facts. Some courts follow the approach suggested by our
Ingram decision: if a person leaves a closed container in an area
that is jointly controlled by another, that other person can consent
to a search of the closed container, even when the container might
be deemed personal to the owner. For instance, in United States v.
Davis [Fn. 9], the court held that one of the co-users of a
footlocker could validly consent to a search of the entire
footlocker, including closed containers that belonged to one of the
other co-users. And in People v. Sawyer [Fn. 10], the court held
that a wife could validly consent to the search of her husband's gym
bag that the husband had hidden in their barn.
On the other hand, some courts have refused to allow a
host to consent to a search of a guest's belongings, even belongings
left in a common area, when the belongings are especially personal
to the guest. Thus, in United States v. Salinas-Cano [Fn. 11], the
court held that the defendant's girlfriend could not validly consent
to a search of the closed (but unlocked) suitcase that the defendant
left in her apartment. In State v. Evans [Fn. 12], the court held
that a wife could not validly consent to the search of her husband's
closed cuff link case that was found in a drawer to which she had
joint access. In United States v. Gilley [Fn. 13], the court held
that a host could not consent to a search of a guest's closed travel
bag, even though the bag was left in an area of the premises over
which the host had joint control. And in Krise v. State [Fn. 14],
the court held that a male housemate could not validly consent to
a search of a female housemate's purse, even though the purse was
found in a bathroom that they both shared.
Fitts's brief does not offer much help in resolving this
issue, for Fitts does not present a separate argument concerning the
saxophone case. Every time that Fitts mentions the saxophone case,
it is only as an addendum to his argument that LeBaron could not
consent to a search of the bedroom. [Fn. 15]
Thus, the question of the saxophone case has no easy
answer, and Fitts does not separately address this question.
Besides the fact that Fitts has not briefed this question, we are
hesitant to embark on a detailed analysis of this legal issue for
two other reasons.
First, it appears that the police might reasonably have
believed that the instrument case belonged to the other occupant of
the room, Mario Gonzalez-LeBaron. At the evidentiary hearing, Fitts
conceded that his name was not on the saxophone case and that
"anybody looking at the case ... in Mario's room could conclude
[that] it might be Mario's case". If the police reasonably thought
that the case belonged to Gonzalez, then the question arguably
becomes whether a sixteen-year-old child who is living in his
parent's home can validly assert an expectation that his parent will
not consent to a search of his belongings. This issue has not been
briefed.
Second, even if we ultimately ruled that the gun should
be suppressed, it does not appear that the introduction of the gun
at Fitts's trial constituted reversible error. The State presented
very strong evidence that Fitts was one of the robbers. Fitts's
wallet was found in the back of the cab after the robbers fled.
Moreover, shortly after the robbery, the cab driver identified Fitts
as the robber who held the gun. Fitts's attorney did not dispute
that Fitts had assaulted the cab driver. Fitts's only offered
defense was that Fitts and Gonzalez were attempting to retrieve a
$100 bill that the boys had given to the cab driver in exchange for
the driver's help in obtaining some unspecified unlawful "pleasure".
This was not a valid defense to a charge of robbery. [Fn. 16]
In sum: Not only would we face considerable difficulty
if we decided to resolve the legality of the search of the saxophone
case without substantive help from the parties, but it further
appears that our resolution of this issue would have no appreciable
effect on the ultimate outcome of this litigation. For these
reasons, we conclude that we should enforce our procedural rule:
Fitts has waived the issue of the saxophone case by failing to
adequately brief it. [Fn. 17]
The trial judge's restriction on the defense attorney's
cross-examination of the cab driver
As just explained, Fitts's primary defense argument was
to suggest that he and Gonzalez had given $100 to the cab driver,
Eckman, with the understanding that Eckman would help them obtain
some unspecified illegal commodity or service and that Fitts
pulled a gun on Eckman when the deal went sour. During the defense
cross-examination of Eckman, the defense attorney sought the trial
judge's permission to ask Eckman whether Fitts and Gonzalez had
asked him where they could purchase marijuana, and whether the boys
had given him $100 to purchase marijuana for them. The prosecutor
objected that there was no evidentiary basis for these questions;
he argued that if the defense attorney were allowed to ask them, the
jurors might speculate that there was evidence to support the
defense attorney's assertions, evidence that had been kept out of
the trial.
When Superior Court Judge Larry D. Card asked the defense
attorney whether he had a good-faith basis for his proposed
questions, the defense attorney said that his proposed questions
were based on conversations with his client. But when Judge Card
asked the defense attorney whether Fitts intended to take the stand,
the defense attorney replied that he did not know yet.
Judge Card then told the defense attorney that he would
allow the defense attorney to voir dire Eckman outside the jury's
presence, to see what Eckman's answers would be. During this voir
dire examination, Eckman stated that he did not recall for certain
whether the boys had asked him where they could buy marijuana, but
Eckman told the court that he did not purchase drugs for any of his
customers that he purposely kept himself ignorant of potential
sources for illegal drugs. And Eckman flatly stated that neither
Fitts nor Gonzalez had given him any money.
After hearing Eckman's answers on voir dire, Judge Card
concluded that there was no evidentiary basis for the defense
attorney's proposed questions, and he therefore ruled that the
defense attorney could not ask these questions in front of the jury.
Fitts's attorney did not object to this ruling, nor did he make any
further offer of proof. Rather, he simply announced, "I'll live with
that ruling."
On appeal, Fitts contends that Judge Card's ruling
infringed Fitts's right to confront his accusers. However, as we
noted in McIntyre v. State [Fn. 18], a litigant "is not entitled to
present baseless accusations or unfounded speculation" to the jury;
"the proponent of any potentially prejudicial evidence should
normally be required to establish a good-faith factual basis before
commencing inquiry [on that subject]." [Fn. 19] In this context,
"good-faith basis" means that the attorney reasonably believes that
the implicit predicate of the questions will be supported by
admissible evidence. [Fn. 20]
In Fitts's case, the defense attorney told Judge Card that
he had no evidence to support his inquiry. The defense attorney
asserted that the proposed questions were supported by information
obtained during his conversations with Fitts but he also
forthrightly told the court that Fitts had not yet decided whether
to take the stand. Thus, the defense attorney implicitly
acknowledged that he did not know whether his proposed questions
would be supported by admissible evidence.
Under these circumstances, Judge Card prudently allowed
the defense attorney to conduct a voir dire examination of Eckman,
to see what answers Eckman might give to the questions. But this
voir dire examination yielded no further support for the defense
attorney's proposed questions. The defense attorney essentially
conceded that this was true: for when Judge Card stated that there
still was no evidence to support the proposed questions, the defense
attorney told the court, "I'll live with that ruling."
Given this record, it appears that the defense attorney
did not preserve any objection to Judge Card's ruling. But even
assuming that he did, the defense attorney failed to identify any
admissible evidence to support his proposed cross-examination of
Eckman.
We note that Fitts ultimately chose not to testify at his
trial. Thus, the defense attorney's proposed questions might have
given rise to the prejudice suggested by the prosecutor. Had the
jury heard the questions posed to Eckman during the voir dire
examination, the jurors might have been encouraged to speculate
that, despite Eckman's explicit denials of wrongdoing, the defense
attorney's questions were based on evidence that somehow had been
excluded from the trial.
We therefore conclude that Judge Card did not abuse his
discretion when he prevented the defense attorney from asking these
questions in front of the jury.
The prosecutor's comment on Fitts's defense strategy
during summation to the jury
In the defense summation to the jury, the defense attorney
did not dispute that Fitts and Gonzalez had assaulted the cab driver
by pointing a gun at him and by punching him. Rather, the defense
attorney argued that Fitts's conduct was the result of an
unfortunate financial transaction with a dishonest cab driver.
According to the defense attorney, the cab driver lured Fitts and
Gonzalez into giving him $100 in exchange for the driver's promised
help in obtaining some unspecified unlawful commodity or service.
Then, the defense attorney contended, the cab driver tried to keep
the money without performing his side of the bargain.
After the defense attorney made this argument, the
prosecutor responded in rebuttal:
Prosecutor: With robbery cases, most of
the time you can expect the defense to be a "Who
done it?" ... Well, in this [case], the defense
reserved its opening statement, so they've kind
of sat back and said, "Well, we'll see what the
evidence is, [and] then we'll decide what our
defense is." [They didn't want] to stand up in
front of you and say, "Mr. Fitts didn't do this.
[He doesn't] know what they're talking about."
They waited until they heard all the evidence
before they decided what their defense is, and
[then] decided, "Well, we're not going to go
with the 'who done it'."
Defense Attorney: Judge, I'm going to
object to this line of [argument]. [The
prosecutor] has no clue as to what ...
The Court: Objection overruled.
Defense Attorney: ... my defense was.
The Court: Thank you, sir. Objection
overruled.
Prosecutor: They decided to go, "Well, ...
we're going to attack the victim, just like a
sexual assault [case]. Oh, lady, you
consented. Oh, lady, ... you asked for it."
And it's that kind of defense that you see
going [on] here. Frankly, one of the things
that brings our system of justice into
disrepute [is], in the eyes of some people, ...
[indiscernible].
On appeal, Fitts contends that the trial judge should have
sustained his attorney's objection to the prosecutor's argument.
Fitts argues that the prosecutor's argument was improper because (1)
he accused the defense attorney of acting unethically by fabricating
a defense after hearing the State's case, and (2) he attempted to
unfairly inflame the jury against Fitts by comparing Fitts to a
defendant who unjustifiably attacks the victim of a sexual assault.
Fitts's first argument was preserved by his objection, but his
second argument is new on appeal, and thus (with respect to this
argument) he must show plain error.
With regard to Fitts's preserved objection, the legality
of the prosecutor's argument presents a close question. On the one
hand, our law allows defense attorneys to reserve their opening
statements until the close of the State's case in chief. Indeed,
our state constitution protects a criminal defendant's right to
reserve many important decisions regarding defense strategy until
the prosecution has presented its case. [Fn. 21] It would be
improper to suggest that a defense attorney behaved unethically by
accepting the benefits of these procedural rules. On the other
hand, in Gray v. State [Fn. 22], the Alaska Supreme Court upheld
a prosecutor's right to point out that a defendant does not have to
present a case until the State has presented its own case, and thus
defendants are able to fashion their testimony so as to avoid direct
confrontation with the strongest parts of the government's case.
In Gray, the court held that the following argument was an
"[allowable] comment on the evidence and the trial tactics of defense
counsel":
[T]he defendants did not know [until the
State's case was ended] what testimony they
would give, what story they would tell, what
defense they would [present]. ... [T]hey
attempted to controvert every fact until the
overwhelming evidence placed them [at the scene
of the crime] and no other alternative was
available to them [except to testify that they
did not shoot with an intent to kill].
Id., 463 P.2d at 907.
In the end, regardless of the merits of Fitts's objection,
we are convinced that any error was harmless. As explained in the
last section of this opinion, the State's case against Fitts was
quite strong. Fitts did not challenge the fact that he was one of
the robbers. (As noted above, Fitts's wallet was found in the back
of the cab after the robbers fled and, shortly after the robbery,
the cab driver identified Fitts as the robber who held the gun.)
In his summation to the jury, Fitts's attorney did not dispute that
Fitts had assaulted the cab driver. Rather, he argued that the
assault had been triggered by the cab driver's attempt to swindle
Fitts and Gonzalez (by refusing to return their $100). But this was
no defense. Even if Fitts had assaulted the cab driver because the
driver wrongfully refused to return the boys' money, Fitts's conduct
would still constitute armed robbery. [Fn. 23] Given these facts,
we conclude that any potential impropriety in the prosecutor's
argument could not have affected the jury's verdict.
For this same reason, we hold that Fitts's second,
unpreserved objection to the prosecutor's argument does not present
plain error.
Conclusion
The judgement of the superior court is AFFIRMED.
FOOTNOTES
Footnote 1:
AS 11.41.500(a).
Footnote 2:
See, e.g., State v. Carsey, 650 P.2d 897 (Or. App. 1982).
Footnote 3:
See Hilbish v. State, 891 P.2d 841, 848 (Alaska App. 1995)
("Actual authority to consent is not required, so long as the person
has the apparent authority to consent.").
Footnote 4:
See Illinois v. Rodriguez, 497 U.S. 177, 188-89; 110 S.Ct.
2793, 2801; 111 L.Ed.2d 148 (1990); Nix v. State, 621 P.2d 1347,
1349-1350 (Alaska 1981).
Footnote 5:
See Rodriguez, 497 U.S. at 188, 110 S.Ct. at 2801.
Footnote 6:
See Hilbish, 891 P.2d at 848.
Footnote 7:
United States v. Matlock, 415 U.S. 164, 171 n.7; 94 S.Ct. 988,
993 n.7; 39 L.Ed.2d 242 (1974); see also Robinson v. State, 578 P.2d
141, 144-45 (Alaska 1978); Bright v. State, 826 P.2d 765, 772
(Alaska App. 1992).
Footnote 8:
703 P.2d 415, 424 (Alaska App. 1985).
Footnote 9:
967 F.2d 84, 88-89 (2nd Cir. 1992).
Footnote 10:
523 N.Y.S.2d 303, 304 (N.Y. App. 1987).
Footnote 11:
959 F.2d 861, 864-65 (10th Cir. 1992).
Footnote 12:
372 P.2d 365, 372 (Haw. 1962).
Footnote 13:
608 F.Supp. 1065, 1069 (S.D. Ga. 1985).
Footnote 14:
___ N.E.2d ___, 2001 WL 493444, *7-*8 (Ind. 2001).
Footnote 15:
"Fitts had a high, and certainly reasonable, expectation of
privacy in the room and his saxophone case." (Appellant's Opening
Brief, page 14)
"Lebaron did not have mutual use of the bedroom for any
purpose, let alone most purposes. Consequently, she did not have
the authority to consent to a search of the bedroom or of the
saxophone case." (Appellant's Opening Brief, page 14)
"[T]he officer's conclusion that Lebaron had the authority
to consent to a search of Fitts's bedroom and saxophone case is
unreasonable. ... Consequently, it was unreasonable to search the
room, and certainly the saxophone case, without inquiring of Fitts
and Gonzalez-Lebaron as to who had authority over the room and case.
... Lebaron's comments regarding occasionally searching the bedroom
do not provide the basis for a reasonable conclusion that she had
authority to consent to a search of the room and the saxophone case."
(Appellant's Opening Brief, page 17)
"Lebaron did not have the actual authority to search the
saxophone case or the room." (Appellant's Opening Brief, page 18)
"The officers could have asked either Fitts or Gonzalez-
Lebaron who owned the saxophone case and who used the room, easily
resolving [any] ambiguity [as to Sarah Lebaron's joint access or
control]." (Appellant's Opening Brief, page 18)
Footnote 16:
See Whitescarver v. State, 962 P.2d 192, 195 (Alaska App. 1998)
(even if a defendant honestly believes that another person is
unlawfully withholding property that belongs to the defendant, the
defendant commits robbery if they assault the other person to make
them relinquish the property).
Footnote 17:
See Katmailand, Inc. v. Lake and Peninsula Borough, 904 P.2d
397, 402 n.7 (Alaska 1995); Petersen v. Mutual Life Ins. Co. of New
York, 803 P.2d 406, 410 (Alaska 1990); Wren v. State, 577 P.2d 235,
237 n.2 (Alaska 1978).
Footnote 18:
934 P.2d 770 (Alaska App. 1997).
Footnote 19:
Id. at 774.
Footnote 20:
See State v. Smallwood, 594 N.W.2d 144, 150 (Minn. 1999); State
v. Fallin, 540 N.W.2d 518, 522 (Minn. 1995); State v. Marble, 901
P.2d 521, 524 (Kan. App. 1995); State v. Rodriguez, 618 A.2d 810,
813-14 (N.H. 1994); United States v. Glynn, 627 F.2d 39, 43 (7th
Cir. 1980).
See also Skyver v. State, 444 S.E.2d 836, 838 (Ga. App. 1994)
(explaining that, although the attorney "must be able to show that
the questions posed ... were asked in good faith and based on ...
admissible evidence[,] ... there is no requirement that the evidence
available [to the attorney] be actually admitted into evidence.
[Rather, the law requires only that] this testimony could have been
introduced at trial.").
Footnote 21:
See Scott v. State, 519 P.2d 774, 783-84, 787 (Alaska 1974).
Footnote 22:
463 P.2d 897 (Alaska 1970).
Footnote 23:
See Whitescarver v. State, 962 P.2d 192, 195 (Alaska App. 1998)
(even if a defendant honestly believes that another person is
unlawfully withholding property that belongs to the defendant, the
defendant commits robbery if they assault the other person to make
them relinquish the property).
