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David v. State (07/13/2001) ap-1752
David v. State (07/13/2001) ap-1752
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
RANDALL E. DAVID, )
) Court of Appeals No. A-7227
Appellant, ) Trial Court No. 4BE-97-1296 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1752 July 13, 2001]
)
Appeal from the Superior Court, Fourth Judicial
District, Bethel, Richard D. Savell, Judge.
Appearances: Margi A. Mock, 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.
Randall E. David was indicted for sexually abusing his
stepdaughter. At his trial, David presented the testimony of Dr.
David Raskin, a psychologist specializing in the study of human
memory and, in particular, the effect that interviewing techniques
have on a child's memory.
Dr. Raskin testified that all people, and especially young
children, are susceptible to the phenomenon of "suggestion". That
is, a person's memories can be distorted if they are asked questions
that suggest the truth of particular facts or events. Based on his
review of the state trooper interviews of David's stepdaughter, Dr.
Raskin concluded that the state troopers had not used good
interviewing procedures. Raskin suggested that the state troopers,
by their interviewing techniques, had unwittingly encouraged David's
stepdaughter to invent accusations of sexual abuse against David,
and thus the stepdaughter's testimony might not be trustworthy.
The jury rejected this theory and found David guilty.
David now appeals his conviction.
This appeal centers on an incident that occurred during
the prosecutor's cross-examination of Dr. Raskin. The prosecutor
asked Dr. Raskin if anything had ever happened to him that might
cause him to be biased concerning sexual abuse cases. Dr. Raskin
answered "absolutely not". The prosecutor then asked, "Have you ever
been accused of sexual abuse yourself?" When Dr. Raskin answered
"no", the prosecutor pursued the subject by asking Dr. Raskin, "Your
daughter has never accused you of ... sexual abuse?" At this point,
the defense attorney objected and called for a bench conference.
After the jury left the courtroom, the prosecutor told the
trial judge (Superior Court Judge Richard D. Savell) that he wanted
to ask Dr. Raskin whether he, himself, had been accused of sexual
abuse by one of his children. The prosecutor argued that if
Dr. Raskin had ever faced such an accusation, then, regardless of
whether the accusation was true or false, this experience might have
biased Dr. Raskin in favor of sexual abuse defendants and made Dr.
Raskin inherently distrustful of children's reports of sexual abuse.
The prosecutor told the court that he had "materials" indicating that
Raskin's daughter had accused him of sexual abuse.
Judge Savell allowed the prosecutor to conduct a voir dire
examination of Dr. Raskin to investigate this matter. But when the
prosecutor asked Dr. Raskin whether his daughter had ever accused
him of sexual abuse, Raskin flatly denied this, and he accused the
prosecutor of outright fabrication. Judge Savell then asked the
prosecutor if he had any extrinsic evidence to support his
allegation, but the prosecutor ducked the question by asking
permission to continue his voir dire examination of Dr. Raskin.
(Unfortunately, Judge Savell never again asked the prosecutor
whether he had any evidence to support his allegations.)
The prosecutor next asked Dr. Raskin if he had been sued
by a woman in Utah, and if, in that civil suit, the court had sealed
certain psychiatric records pertaining to the treatment of Raskin's
son. Raskin acknowledged that this was correct. The prosecutor
then asked Dr. Raskin if those sealed records contained an
allegation that Raskin had sexually abused his son. Raskin
responded that the records were sealed, and that they were also
protected by the psychotherapist-patient privilege, so he would not
reveal their contents.
Judge Savell rejected Raskin's claim of psychotherapist-
patient privilege on the basis that Dr. Raskin was not the
psychotherapist who treated his son. And Judge Savell concluded
that it was irrelevant whether the Utah court had sealed the
documents because he did not intend to order "the contents of court-
sealed records [to be] opened". Judge Savell then ordered Dr. Raskin
to answer whether "there are papers from [his son's psychiatric]
treatment, or otherwise" containing an allegation that Raskin had
sexually abused one of his children.
Dr. Raskin responded by again asserting that he was not
authorized to reveal the contents of the sealed treatment documents:
Dr. Raskin: Your Honor, I think I've
[already] answered [your] question. I've told
[the prosecutor] that the ... alleged statement
by ... my daughter ... accusing me of sexual
abuse is absolutely false and she was furious
when she was informed [that someone had
attributed such an accusation to her]. I've
also told you that I'm not going to disclose
information from my son's psychiatric records
during treatment. I don't know what else I can
say.
. . .
The Court: Did your son, in any setting,
allege that you abused him or your daughter?
. . .
Dr. Raskin: Your Honor, I cannot disclose
to you my son's psychiatric treatment records.
... I cannot do that because he is the only
person who can release [those records]. I
cannot do that; and you know that, Your Honor.
Confronted with Dr. Raskin's refusal to reveal the
contents of the sealed psychiatric treatment records, Judge Savell
directed his in-court clerk to bring the jury back to the courtroom.
The judge's intention was to have the prosecutor again pose these
questions to Dr. Raskin, so that the jury would know that Raskin
refused to answer this inquiry.
But when the jury returned to the courtroom and the
prosecutor asked Dr. Raskin, "[A]re there records in which a child
of yours has accused you of sexually abusing one or more children?",
Raskin replied, "I know of no such records. It's a fabrication."
Taken aback by this answer, the prosecutor asked Dr.
Raskin, "You were asked these same questions just a minute ago, and
you refused to answer. Is that correct?" Raskin replied, "That is
not correct. I was not asked that question." The prosecutor then
asked Judge Savell for permission to play Raskin's voir dire to the
jury. Over the defense attorney's objection, Judge Savell declared
that Raskin's answers during voir dire would be played to the jury
because they constituted "a prior inconsistent statement".
The two attorneys then began to dispute whether Dr. Raskin
had indeed been asked the same question during the voir dire. Judge
Savell cut them off and posed his own question to Dr. Raskin:
The Court: Dr. Raskin, are there records
regardless of origin, regardless of truth arising from
statements made by your son that accuse you, directly or indirectly,
of sexual abuse of a child of yours, whether son or daughter?
Dr. Raskin: I know of no such records in
which my son accused me of child abuse.
The Court: And my next question to you
is: Why did you just a few minutes ago refuse to answer that?
. . .
Dr. Raskin: I was asked [a few minutes
ago] to disclose information in sealed documents about my son's
psychiatric records ...
The Court: That [was] not ...
Dr. Raskin: ... , which I refused [to
do].
The Court: That [was] not the question.
Dr. Raskin: Yes, that was the question,
Your Honor.
The Court: Let's go back and just play
[the tape of the doctor's voir dire].
The court then went off-record apparently, so that the
tape machine in the courtroom could be used for playing back the
recording of Dr. Raskin's voir dire. At least three portions of the
voir dire were played (in the jury's hearing) while Judge Savell and
the prosecutor attempted to find the place or places where Raskin
refused to answer the same questions just posed by the prosecutor
and the judge himself.
When the court finally went back on record, the defense
attorney asked for a mistrial:
Defense Attorney: Your Honor ...
attempted to find, in the record [of Raskin's voir dire], a certain
alleged refusal. And in so doing, [the court] played at least three
portions of the [voir dire] which were not the alleged refusal that
Your Honor sought. These other matters [that the jury has now
heard] are highly prejudicial. ... These matters should not have
been brought before [the jury]. ... They heard accusations of
sexual misconduct on the part of [Dr. Raskin] that were allegedly
made by [his] daughter and [his] son, and all of these things are
highly improper. They violate Rules of Evidence ... 403[,] 404[,
and] 405. They are allegations of specific acts of bad conduct
which should not [have been] permitted to go before the trier of
fact. I've made a motion for mistrial before, [and] the court has
not ruled on it yet. I renew the motion at this time. ...
The Court: The court had to play the
question [and Dr. Raskin's answer]. And because you kept arguing
back [during the voir dire examination], there was some argument
mixed in [with] the answer, where [Dr. Raskin] says, "I refuse to
disclose that." [But] that's what had to be done, because [Dr.
Raskin] denied [it] when [the prosecutor] asked if he had just
[refused to answer that question]. ... The alternative was for me
to say, "Yes, he did deny it." [sic: i.e., he refused to answer
the question] Instead, I let [the jury] hear him refuse to answer.
Not deny it; he refused to answer. Your motion is denied.
We conclude that Judge Savell should have granted the
requested mistrial. The proceedings we have just described were
flawed in four ways.
First, the prosecutor flagrantly violated the procedural
rule we established in McBeth v. State [Fn. 1] when, without prior
warning to the court and the defense attorney, the prosecutor began
accusing Dr. Raskin of sexually abusing a child. In McBeth, we
stated that "the Alaska Rules of Evidence clearly imply that a prior
application to the court is necessary before a party can inquire
into evidence concerning whether a witness has engaged in criminal
conduct." [Fn. 2] The prosecutor ignored this rule and presented
his allegations to the jury before the defense attorney had a chance
to litigate whether the prosecutor's inquiry was proper in the first
place.
Second, the prosecutor never offered any evidence to
support his allegations that Dr. Raskin had engaged in sexual abuse
of his children. Here, the prosecutor accused a witness of engaging
in criminal conduct unconnected to the facts of this case, criminal
conduct that could not be inferred from the other evidence before
the court. Under these circumstances, Judge Savell should not have
allowed the prosecutor to ask questions on this subject in front of
the jury unless the prosecutor first provided a good-faith basis for
his questions that is, an offer of proof describing what
admissible evidence the prosecutor possessed to support the accusa-
tions. [Fn. 3]
To support his questioning of Dr. Raskin, the prosecutor
ultimately gave the court a three-page memorandum authored by a
paralegal working for the Department of Law. The prosecutor
submitted this document ex parte because the prosecutor claimed that
this memorandum was "work product". This memorandum describes
Dr. Raskin's background. It also includes the assertion that,
within the sealed court documents from Utah, Dr. Raskin's daughter
accused him of sexual abuse. But the memorandum contains no
information to verify this accusation. More important, the
paralegal who authored the memorandum does not claim first-hand
knowledge of what these sealed documents contain, nor does he
explain how a paralegal working in Alaska obtained access to
documents that were sealed by a Utah court. That is, the memorandum
provides no basis for believing that the prosecutor had any
admissible evidence to support his assertion that Dr. Raskin's
children ever accused him of sexual abuse.
Third, leaving aside the prosecutor's lack of a good-faith
basis for his questions, information contained in Dr. Raskin's son's
psychiatric treatment records was apparently privileged under Alaska
Evidence Rule 503. [Fn. 4] When Dr. Raskin asserted this privilege
on behalf of his son, Judge Savell ruled that Raskin had no
authority to assert the privilege because Raskin was not the
psychiatrist who treated his son. This ruling appears to be wrong.
Because Dr. Raskin was the boy's father, he was ostensibly
authorized to assert the privilege on behalf of his son at least
when neither his son nor any other person representing his son (an
attorney or guardian ad litem) was present to assert or waive the
privilege. [Fn. 5]
Fourth, even assuming that Dr. Raskin was not authorized
to assert the psychotherapist-patient privilege on behalf of his
son, and that Judge Savell could therefore order Raskin to answer
questions about the contents of the psychiatric treatment records,
it was improper to allow the prosecutor to impeach Dr. Raskin with
his earlier refusal to answer questions about those records. In
certain circumstances, it is possible that a witness's refusal to
answer questions might properly be construed as an implicit
admission that the answers would be unfavorable to the witness
and, thus, the witness's refusal might be deemed "inconsistent" with
the witness's favorable answers to those same questions on other
occasions. [Fn. 6] But such an inference is impermissible under
the circumstances of this case.
During voir dire, the prosecutor asked Dr. Raskin whether
his son's psychiatric records contained any accusation of sexual
abuse. In response, Dr. Raskin raised two plausible reasons why he
should not be required to answer questions about the contents of the
psychiatric records: first, that the records were protected by the
psychotherapist-patient privilege, and second, that the records had
been ordered sealed by another court.
Although Judge Savell ultimately rejected both of these
arguments and ordered Dr. Raskin to answer the question, Raskin's
decision to raise these plausible legal objections was not
"inconsistent" with his later testimony that his son had never
accused him of sexual abuse. The supposed "inconsistency" exists
only if we assume that whenever a witness claims an evidentiary
privilege rather than answer a question, the witness is essentially
conceding that the answer to the question would be unfavorable to
them. This assumption is expressly forbidden by Alaska Evidence
Rule 512.
Evidence Rule 512(a) declares that no inference is to be
drawn from the fact that a person has claimed the benefit of a
privilege not to testify. To enforce this principle, Rule 512(a)
forbids both the judge and the attorneys from commenting on a
person's claim of privilege. Evidence Rule 512(b) further directs
trial judges to conduct jury trials so that, to the extent
practicable, no one is forced to claim the benefit of an evidentiary
privilege in front of the jury. The commentary to Evidence Rule
512(b) explains the rationale of this rule:
The value of a privilege may be greatly
depreciated by means other than expressly commenting to a jury upon
the fact that [the privilege] was exercised. ... [C]alling ... a
witness in the presence of the jury and subsequently excusing him
after a side-bar conference may effectively convey to the jury the
fact that a privilege has been claimed, even though the actual claim
was not made in [the jury's] hearing. ... Destruction of the
privilege by innuendo can and should be avoided.
Commentary to Evidence Rule 512(b), first paragraph.
This rule obviously applies when a witness validly claims
a privilege. But the same rule also applies when a witness claims
a privilege, the court rejects the claim of privilege and orders the
witness to testify, and the witness then obeys the court and answers
the disputed questions. Allowing such a witness to be "impeached"
with their earlier claim of privilege would undermine the policy of
Evidence Rule 512, and it would deter people from claiming the
protection of the evidentiary privileges.
The situation in the present case is a little different
for when Judge Savell rejected Dr. Raskin's claims of privilege
and ordered Dr. Raskin to answer the question, Dr. Raskin at first
continued to assert that he was not legally obliged to answer.
Judge Savell then called the jury back to the courtroom so that the
jurors could hear Raskin refuse to answer the question.
Had Raskin again refused to answer the prosecutor's
question after the jury returned to the courtroom, we would then
have to confront the issue of whether a trier of fact can properly
draw an adverse inference from a witness's continued refusal to
answer questions after the court has rejected the witness's claim
of privilege. Courts are split on this issue. [Fn. 7] But, as it
happened, this difficult issue never arose. Instead, when the jury
was brought back to the courtroom and the prosecutor posed his
question to Dr. Raskin, Raskin answered the question.
It appears that both the prosecutor and Judge Savell
became sidetracked at this point. Raskin's decision to answer the
prosecutor's question obviously took them by surprise. Moreover,
Dr. Raskin would not admit that he had changed his mind about
answering the question. Rather, he asserted that he had answered
the prosecutor's current question because the prosecutor was no
longer asking an objectionable question. At this point, both the
prosecutor and Judge Savell embarked on a search of the tape-
recorded voir dire examination to see if the prosecutor's question
had really changed.
This issue was a red herring. It did not make any
difference whether the prosecutor's current question was the same
as, or different from, the questions posed to Dr. Raskin during the
voir dire. Even assuming that the prosecutor's question was exactly
the same as a question that Dr. Raskin had previously refused to
answer, it was still true that (1) Dr. Raskin's previous refusal to
answer was based on a plausible claim of privilege, and (2) now that
Judge Savell had ordered Raskin to answer the question and had
called the jury back to the courtroom, Dr. Raskin answered the
question.
The prosecutor and Judge Savell were apparently motivated
by the belief that, if Dr. Raskin had earlier refused to answer the
same question, his refusal said something about his credibility as
a witness. But any such belief would again be based on the
inference forbidden by Evidence Rule 512 the inference that a
claim of privilege can be deemed tantamount to a concession that the
answer, if given, would be unfavorable to the witness. The law
allows no inference to be drawn from Dr. Raskin's earlier refusal
to answer the question. It was therefore irrelevant whether the
prosecutor's question was indeed the same one that Raskin had
previously declined to answer.
Thus, when the prosecutor and Judge Savell went off-record
to search through the tape recording of Dr. Raskin's voir dire
examination, they were seeking information that was irrelevant to
Raskin's credibility as a witness. And, as a result of their
search, the jury was exposed to prejudicial information. The jurors
heard the prosecutor's various unfounded accusations against Dr.
Raskin, and they also heard Dr. Raskin's repeated assertion of his
privilege not to answer questions about the contents of his son's
treatment records.
Dr. Raskin was the only witness offered by the defense.
Thus, the defense case rested heavily on Dr. Raskin's assertion that
the state troopers' faulty interviewing techniques might have led
David's stepdaughter to make unfounded accusations of sexual abuse.
But by the time Dr. Raskin left the stand, the jury had heard about
secret court records in which, purportedly, Raskin's own son had
accused him of sexual abuse. The jury had also heard portions of
the voir dire examination in which Raskin refused to answer
questions about those records, even after Judge Savell directed him
to answer. From this, the jury might improperly infer that Raskin
himself was guilty of sexually abusing children and that his
testimony on behalf of a sexual abuse defendant should therefore be
distrusted. [Fn. 8]
For these reasons, we conclude that David must be given
a new trial.
The judgement of the superior court is REVERSED.
FOOTNOTES
Footnote 1:
652 P.2d 120 (Alaska App. 1982).
Footnote 2:
Id. at 125 n.7.
Footnote 3:
See Alaska Professional Conduct Rule 3.4(e): "A lawyer shall
not in trial allude to any matter ... that will not be supported by
admissible evidence."
Footnote 4:
See State v. R.H., 683 P.2d 269, 274-75 (Alaska App. 1984)
(holding that, even though AS 47.17.020 obliges mental health care
providers to report incidents of sexual abuse, the psychotherapist-
patient privilege still applies to allegations of sexual abuse).
Footnote 5:
See Charles Alan Wright and Kenneth W. Graham, Jr., Federal
Practice and Procedure: Evidence (1989), sec. 5539, Vol. 25, pp.
301-02.
Footnote 6:
Compare Van Hatten v. State, 666 P.2d 1047, 1051 (Alaska App.
1983), where this court held that when a witness deliberately seeks
to avoid testifying by falsely claiming to have no present memory
of an event, the witness's assertion can be deemed "inconsistent"
with the witness's prior statements describing the event.
Footnote 7:
Compare Martin v. United States, 756 A.2d 901, 905 (D.C. App.
2000) (even when a witness refuses to answer questions without any
valid privilege, a judge should instruct the jury that they are not
to "draw any inference of any kind" from the witness's refusal to
testify) with United States v. Brannon, 546 F.2d 1242, 1247 (5th
Cir. 1977) (when a witness has no privilege to refuse to answer
questions, there is "no error in the court's instructing the jury
... that [these] refusals could be considered in assessing his
credibility.")
Footnote 8:
See Snyder v. Foote, 822 P.2d 1353, 1360-61 (Alaska 1991)
(holding that improper impeachment of an expert witness in a medical
malpractice case was reversible error when the impeachment unfairly
cast doubt on the witness's credibility).
