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Cleveland v. State (05/28/2004) ap-1934
Cleveland v. State (05/28/2004) ap-1934
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
STEVEN CLEVELAND, )
) Court of Appeals No.
A-8223
Appellant, )
Trial Court No. 2KB-00-726 Cr
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1934 May 28, 2004]
)
Appeal from the Superior Court, Second Judi
cial District, Kotzebue, Richard H. Erlich,
Judge.
Appearances: Robert D. Lewis, Nome, for the
Appellant. Timothy W. Terrell, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Gregg D. Renkes, Attorney General, Juneau,
for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Steven Cleveland was convicted of second-degree sexual
assault and second-degree assault for sexually penetrating a
woman with a wide-diameter object, inflicting serious and lasting
internal injuries.1 In this appeal, Cleveland asserts that the
trial judge improperly prevented him from presenting evidence
suggesting that these crimes were committed by someone else. In
particular, Cleveland argues that the trial judge should have
allowed him to present evidence that another man, Harry Morena,
beat the same woman on the head with a wooden chair leg about
five months after the sexual assault that Cleveland was charged
with.
Cleveland accuses the trial judge of having violated
the Smithart-Marrone rule a rule that governs a criminal
defendants ability to introduce evidence tending to show that the
crime was committed by someone else.2 But the trial judge never
invoked the Smithart-Marrone rule to restrict Clevelands
introduction of otherwise admissible evidence.
That is, the trial judge did not exclude Clevelands
offered evidence on the basis that it was offered for an improper
purpose (i.e., offered to prove that someone else committed the
crime, before Cleveland had established the requisite foundation
for this proof under Smithart and Marrone). Rather, the trial
judge excluded Clevelands offered evidence because it was not
admissible under the rules of evidence.
We conclude that the trial judges evidentiary rulings
were not an abuse of discretion. We therefore uphold those
evidentiary rulings, and accordingly we affirm Clevelands
convictions.
Cleveland also argues that his composite sentence 19
years to serve is excessive. For the reasons explained in this
opinion, we conclude that this sentence is not clearly mistaken,
and we therefore affirm it.
Background facts
Steven Cleveland was convicted of second-
degree sexual assault and second-degree assault for
sexually penetrating a woman, H.C., during a weekend
drinking binge at Clevelands house in the village of
Ambler on November 17-19, 2000. Sometime between
Friday night, November 17th, and Saturday evening,
November 18th, H.C. was forcibly penetrated anally with
an object that was somewhere between four and six
inches in diameter. This sexual penetration tore H.C.s
body to a depth of four to six inches, inflicting
serious and lasting internal injuries on H.C..
The episode started on Friday evening,
November 17th, when Cleveland invited H.C. over to his
house to enjoy a batch of home brew that he had
prepared. During the course of the evening, H.C.
consumed so much home brew that she passed out, and she
never went home that night. The next day (Saturday,
November 18th), three other Ambler residents all of
them H.C.s relatives came to Clevelands house and
drank home brew with Cleveland and H.C.. These three
were: H.C.s brother, Harry Morena; her half-sister,
Mary Williams; and her niece, Marys 19-year-old
daughter, Dora.
Dora Williams, Mary Williams, and H.C. all
testified at Clevelands trial, and they each offered
slightly different versions of what happened on that
Saturday.3
Dora Williams testified that she and her
mother and Harry Morena arrived at Clevelands house
around 10:00 in the morning; Cleveland and H.C. were
already there. According to Dora, H.C. was sitting on
a couch when they arrived, but H.C. was pretty drunk
and she soon got down on the floor. Mary Williams and
Harry Morena tried to get H.C. back up on the couch
again, but they discovered that she had passed out, so
they left her on the floor. Dora testified that H.C.
had no apparent injuries at that time, nor did Dora see
any blood on H.C.s clothing or on the floor.
Dora testified that she and her mother and
Morena stayed at Clevelands house for about half an
hour, and then they departed as a group leaving
Cleveland and H.C. alone in the house. As they were
leaving, Dora heard her mother Mary tell Harry Morena
to keep checking on H.C.. According to Dora, that was
the only time that she visited Clevelands house that
day.
Mary Williams testified that she and Dora and
Harry Morena all arrived at Clevelands house at about
9:00 or 9:30 on Saturday morning. Cleveland and H.C.
were already there. Mary testified that H.C. was
sitting on the couch while they were there. H.C. was
in the early stage of drinking when they arrived, and
she was getting buzzed by the time they left Clevelands
house less than an hour later. Like Dora, Mary
Williams testified that H.C. had no apparent injuries
and that there was no blood in sight at that time.
Mary testified that she returned twice that
day to Clevelands house because she was worried about
H.C.. Here, Marys testimony diverged somewhat from
Doras: Mary testified that Dora accompanied her on
these return trips.
According to Mary, she and Dora first
returned to Clevelands house before 11:00 in the
morning. They tried to get into the house; when they
found the door locked, they pounded on the door for
about fifteen minutes. Finally, Cleveland came to the
door and let them in.
Mary went inside and found H.C. lying on the
floor, totally ... passed out, with her pants down
below her waist. Finding H.C. in this condition, Mary
started yelling at Cleveland, demanding to know if he
had bothered H.C.. Cleveland denied doing anything.
Mary tried to wake up H.C., but she was
unresponsive. Mary then decided to summon help. Mary
testified that she returned to Clevelands house with
Dora and Harry Morena. She said that she did not have
a clear memory of that third visit because she was
partially blacked out from drinking.
On cross-examination, Mary admitted that she
and H.C. had once had a major conflict: three years
before (i.e., in late 1997 or early 1998), Mary found
out that H.C. had been sleeping with Marys husband.
Mary stood outside H.C.s house, screamed at her, and
threw rocks or large pieces of firewood through H.C.s
windows.
However, according to Mary, she and H.C.
reconciled two months later and Mary got rid of her
philandering husband. Mary explained the
reconciliation by noting that she and H.C. are half-
sisters who have known each other all of their lives.
(This window-breaking incident, and the subsequent
reconciliation, were both confirmed by H.C. when she
testified.)
The third witness to testify about the events
of Saturday, November 18th, was the victim, H.C.. She
testified that she asked her brother, Harry Morena, to
take her to Clevelands house on Friday evening,
November 17th, and to come back for her later. H.C.
testified that she had five or six glasses of home brew
that night, and then she passed out.
When H.C. regained consciousness, she was
lying on the floor of Clevelands house, and she was in
a lot of pain. At first, she thought that she was
simply hung over, but then she noticed that there was
blood on her pants and that the pain was severe in her
rectum. She tried to get up, but she was too weak.
She then crawled over to the couch, pulled herself up,
and lay there.
Cleveland brought water to H.C., but as soon
as she drank it, she began to vomit. H.C. lay on the
couch and apparently passed out again. She awoke to
find Cleveland cleaning her blood from the floor.
At this point, Cleveland asked H.C. if she
wanted to go to bed with him. H.C. answered that she
was too sick and in too much pain for that. Cleveland
then asked H.C. if she wanted to touch his penis, but
H.C. again declined.
H.C. testified that, during the morning,
Harry Morena came to Clevelands house to check on her.
Morena came inside the house and spoke to H.C. where
she lay on the couch, but H.C. told Morena that she was
too sick to get up. H.C. told Morena to come back
later, when she was feeling better, and Morena said
that he would do so.
Morena returned to Clevelands house about
three or four hours later. This time, however,
Cleveland did not let Morena come in; instead,
Cleveland went outside to speak to Morena. (Clevelands
house has a kanachuk i.e., an arctic entry vestibule,
so that one must pass through two doors to get inside
the house.) H.C. heard Cleveland tell Morena that she
was still sick, and then Morena left.
H.C. testified that Morena came back a third
time, about three or four hours after that. This time,
however, Cleveland did not respond to Morenas knocking.
H.C. said that she had no recollection of
either Dora or Mary Williams coming to Clevelands
house. She did, however, recall hearing the voice of
Ronald Cleveland outside the door, one time, with Harry
Morena.
Ronald Cleveland (a second cousin to both
H.C. and Steven Cleveland) also testified at Clevelands
trial, and he partially corroborated H.C.s testimony on
this point. Ronald stated that he and Harry Morena
went to Clevelands house toward the end of the day on
Saturday, November 18th, so that Harry Morena could
check on H.C.. However, Ronalds testimony differed
from H.C.s in that he stated that Cleveland did respond
to their knocking. Ronald said that when he and Morena
knocked on Clevelands outer door, Cleveland came to the
door and stepped outside to talk to the two men. This
was unusual, Ronald declared, because Cleveland
normally would answer a knock on his door by simply
telling visitors to come on in.
According to Ronald, Morena told Cleveland
that he wanted to check on his sister. But when
Cleveland replied that H.C. was sleeping, Morena and
Ronald left without going inside.
H.C. remained at Clevelands house until mid-
morning the next day (Sunday, November 19th), when she
used Clevelands telephone to call her stepfather,
Merrill Morena, and asked him to come take her home.
Although H.C. was still in extreme
discomfort, she apparently did not realize the extent
of her internal injuries. But by Tuesday morning
(November 21st), H.C. was too weak to get up. She then
sought medical attention by telephoning the community
health clinic. The health aide came to H.C.s house,
examined her, and arranged to have her medevacked to
Anchorage, where H.C. underwent surgery.
Cleveland was subsequently indicted for both
first-degree sexual assault and first-degree assault
(for causing the serious physical injury). He was tried
twice: the first trial ended in a mistrial; the second
trial ended with guilty verdicts on the lesser offenses
of second-degree sexual assault and second-degree
assault.
Clevelands defense was that there was a
substantial possibility that someone else had committed
these crimes. Clevelands attorney acknowledged that
only a small group of people had the opportunity to
sexually assault H.C., but he argued that Dora
Williams, Mary Williams, and Harry Morena were all
likely suspects.
In particular, the defense attorney asserted
that Dora Williams was lying when she testified that
she had visited Clevelands house only once on Saturday,
November 18th. (As explained above, Doras mother,
Mary, testified that Dora had accompanied her when she
twice returned to Clevelands house later that day to
check on H.C..) The defense attorney suggested that
Dora was trying to hide something.
In addition, the defense attorney reminded
the jurors of the incident in which Mary Williams
screamed at H.C. and broke her windows because H.C. had
engaged in adultery with Marys husband. The defense
attorney asserted that this incident showed that Mary
was capable of erratic and violent behavior when she
was drunk. And the defense attorney asked the jury to
consider why Mary was so intent on returning to
Clevelands house to check on H.C.. He insinuated that
Mary might have been trying to settle an old score.
And the defense attorney also accused Harry
Morena. He noted that blood had been found on a
sweatshirt in Clevelands house, and he noted that the
State had failed to present any evidence as to whom
that sweatshirt belonged to. The defense attorney
asserted that the sweatshirt belonged to Morena: that
Morena had gotten blood on the sweatshirt while he was
sexually assaulting his sister, that he had removed the
sweatshirt when he cleaned himself after the attack,
and that he had then forgotten about the sweatshirt
when he left Clevelands house and locked the door
behind him so that the sweatshirt was still hanging
there when the police searched the house.
In sum, the defense attorney told the jury,
Cleveland may have been the most likely candidate
(i.e., the most likely perpetrator of the sexual
assault), but just [naming the] likely candidate doesnt
get the [governments] job done. The defense attorney
argued that, because the perpetrator could have been
Mary Williams, or Dora Williams, or Harry Morena, the
government had failed to prove Clevelands guilt beyond
a reasonable doubt.
Despite these arguments, the jury convicted
Cleveland of the sexual assault and the physical
assault. On appeal, Cleveland argues that the trial
judge committed error in three different evidentiary
rulings. Each of these rulings dealt with evidence
that Cleveland asserted would tend to exculpate him by
suggesting that Harry Morena was the true culprit.
The trial judges hearsay ruling: Morenas invocation of
his privilege against self-incrimination, and
Clevelands ensuing attempt to introduce some of Morenas
out-of-court statements through the hearsay testimony
of a state trooper
This issue first arose in an evidentiary
hearing that was held during Clevelands first trial in
mid-June 2001. The defense attorney wanted to call
Harry Morena to the stand and have him testify about
his several visits to Clevelands house on the weekend
of the sexual assault (November 18-19, 2000). However,
the defense attorney informed the trial judge Superior
Court Judge Richard H. Erlich that it appeared likely
that Morena was going to invoke the Fifth Amendment if
he was called as a witness at Clevelands trial.
At the time of Clevelands first trial, Morena
was in jail: he had been arrested two weeks before (on
June 1, 2001) on charges that he assaulted his sister,
H.C., by beating her on the head with a chair leg
during an argument. When Morena was brought to court
for the evidentiary hearing, he was accompanied by the
assistant public defender who was representing him in
the assault case.
Clevelands attorney told Judge Erlich that he
wanted to ask Morena questions about what Morena saw
and did while he was at the Cleveland house on the
weekend of November 18th-19th, because, in the end, I
want to assert that Harry Morena sexually assaulted and
physically assaulted his sister, H.C., [that he]
perpetrated the crime that Steven Cleveland is
currently charged with.
The defense attorney also wanted to question
Morena about his alleged recent assault on his sister
an assault that had allegedly occurred on May 27th (two
and a half weeks before this evidentiary hearing). The
defense attorney told Judge Erlich that he was going to
assert that the table leg [sic: it was a chair leg]
that Morena allegedly used against H.C. on May 27th
was, in fact, the very same instrument that Morena had
used to sexually penetrate H.C. six months before
(i.e., the previous November).
The defense attorney made two arguments as to
why this evidence would be admissible. First, he
declared that the supreme courts decision in Smithart
guaranteed him the right to introduce any evidence
which would tend to establish a reasonable doubt of the
defendants guilt. Second, he declared that evidence of
Morenas assault on H.C. was admissible by analogy to
Evidence Rule 404(b)(4) the rule which states that, in
trials for acts of domestic violence, the State may
introduce evidence of the defendants other acts of
domestic violence.
Morena was then put on the stand for voir
dire examination. Even though Morena showed no
hesitancy in answering several questions about visiting
Clevelands house during the weekend in November 2000
when H.C. was sexually assaulted, Morenas attorney
eventually objected to Clevelands attorneys questions,
and Judge Erlich ultimately ruled that Morena had a
Fifth Amendment right not to answer questions about his
activities at Clevelands house that weekend.
Following this ruling, there is a 50-minute
break in the transcript. The transcript picks up again
in the middle of the trial proceedings, just as a bench
conference was beginning. From the discussion that
took place at the bench conference, it appears that the
bench conference was called while Trooper Todd Summey
was on the stand, being cross-examined by the defense
attorney. Trooper Summey was the trooper who
investigated Morenas assault on H.C. at the end of May
2001, and he was also part of the team that had
investigated the sexual assault on H.C. the previous
November.
The defense attorney had apparently asked
Trooper Summey to tell the jury what Morena had said to
the troopers about his visits to Clevelands house on
the weekend of the November sexual assault, and the
defense attorneys question had drawn a hearsay
objection from the prosecutor.
At the bench conference, the defense attorney
responded to the hearsay objection by declaring:
Defense Attorney: Im going to assert
that [Morena] is unavailable [because of his
invocation of the privilege against self-
incrimination], and therefore any statements
that he ... made to the trooper which, you
know, I think have nothing to do with, sort
of credibility issues or anything are things
that [the defense] should at least be allowed
to begin to explore. I think that there are
some questions about whether or not [Morena]
may be, you know, available for cross-
examination purposes and that kind of stuff.
But I think [that] the witness has
voluntarily absented himself, and I think
[that] were at least entitled to inquire
about some of the foundational stuff which
has, interestingly enough, nothing to do with
him as a witness or a ... [At this point,
Judge Erlich makes an indiscernible comment,
and the defense attorney stops speaking.]
A few minutes later (following a short
recess), the defense attorney made an offer
of proof concerning the statements that he
was trying to elicit:
Defense Attorney: Were asking the Court
to allow us to ask the trooper about ... Mr.
Morenas recitation of events to the trooper.
And, as [an offer of proof], [the trooper]
would say [that Morena said] words to the
effect that he had been to the [Cleveland]
house on November 18th at or about 9:00 or
10:00 ... in the morning. He could not be
sure of the exact times. [H.C.] had awakened
him to let him know she would be at Steven
Clevelands house. Later, when [Morena] woke
up, he went to Steven Clevelands residence to
check on [H.C.] because he knew [that] she
was probably drinking alcohol. At about 4:00
or 5:00 ... in the afternoon, he went to
Steven Clevelands residence with Dora
Williams, and [he] saw [H.C.] passed out on
the couch. [He] tried to pick her up and
take her home, [but] she was too heavy. He
... only moved her off the couch to the
floor, [and then] he left her there to sleep
it off. ... Between 7:00 and 8:00, he went
back to Steven Clevelands residence with Ron
Cleveland. Thats the expected testimony from
the trooper.
In fact, the testimony that the
defense attorney was trying to elicit was
double hearsay. Not only were Morenas
statements made outside of court, but those
statements were made to a different trooper.
Trooper Summey (the person who was currently
on the witness stand) had personally
interviewed Morena about the recent May 27th
assault on H.C., but another trooper Trooper
Richard Terry was the one who had
interviewed Morena on November 27, 2000,
about Morenas activities and visits to
Clevelands house during the weekend of the
sexual assault on H.C..
When Judge Erlich asked Clevelands
attorney how this proposed testimony fell
within any exception to the hearsay rule, the
defense attorney answered that it fell within
the catch-all provision of Evidence Rule 804
that is, Evidence Rule 804(b)(5), which is
generally referred to as the residual hearsay
exception. See Ryan v. State, 899 P.2d 1371,
1374 (Alaska App. 1995).
The defense attorney noted that
Morena was clearly unavailable. He then
asserted that Morenas out-of-court statements
satisfied the requirements of Evidence Rule
804(b)(5) because these statements were being
offered to prove material facts, they were
more probative on these matters than any
other evidence available to the defense, and
the general purposes of the hearsay rules
would be served by the admission of these
statements.
We do not have a transcript of the
testimony presented at Clevelands first
trial. But we do have the testimony
presented at Clevelands second trial and,
based on that testimony, it is clear that the
defense attorney was wrong when he asserted
that there was no other evidence available to
prove Morenas whereabouts and activities on
the November weekend in question. H.C.
testified that she remembered Morena coming
to Clevelands house three times on Saturday,
November 18th. And Mary Williams testified
that Morena was with her at Clevelands house
at least twice on that Saturday.
Moreover, as Judge Erlich noted,
Ryan holds that before hearsay statements can
be introduced under the residual exception,
the circumstances surrounding those
statements must carry guarantees of
trustworthiness equivalent to or exceeding
the guarantees of trustworthiness that
characterize the recognized exceptions to the
hearsay rule. See Ryan, 899 P.2d at 1374
(quoting the first paragraph of the
commentary to Alaska Evidence Rule 803(23))
and at 1379.
After Judge Erlich declared that he
did not see how Morenas statements to the
troopers carried special guarantees of
trustworthiness, the defense attorney
responded that much of what Morena said to
the troopers was corroborated by the
testimony of other witnesses. But we
explicitly held in Ryan that the guarantees
of trustworthiness required by the residual
hearsay exception can not be proved by
showing that an out-of-court statement is
corroborated by other evidence. Rather, the
required guarantees of trustworthiness must
be established solely from the circumstances
of the statement and the mental state of the
declarant.4
We conclude that Judge Erlich did
not abuse his discretion when he ruled that
Morenas statements to Trooper Terry
concerning his visits to Clevelands house on
the weekend of November 18-19, 2000 did not
carry the circumstantial guarantees of
trustworthiness required by Evidence Rule
804(b)(5). For this reason, and for the
further reason that much of the same
information concerning Morenas visits to the
house was available through the testimony of
other witnesses, Judge Erlich did not abuse
his discretion when he ruled that Clevelands
proposed hearsay testimony was not admissible
under the residual hearsay exception.
Clevelands challenge to this hearsay ruling: his
assertion that the Alaska Supreme Courts decision
in Smithart v. State exempts criminal defendants
from the hearsay rules when defendants are
attempting to show that someone else might have
committed the crime
On appeal, Cleveland contends that Judge
Erlichs hearsay ruling is at odds with the Alaska
Supreme Courts decision in Smithart v. State, 988
P.2d 583 (Alaska 1999). Cleveland argues that
Smithart guarantees him the right to introduce any
evidence that might tend to raise a reasonable
doubt concerning his guilt, even though this
evidence might otherwise be inadmissible under the
normal rules of evidence. Cleveland has
misinterpreted Smithart.
(a) The supreme courts decision in Smithart v.
State
In Smithart, the supreme court was called
upon to interpret and clarify its earlier decision
in Marrone v. State, 359 P.2d 969, 984-85 n. 19
(Alaska 1961), in which the court adopted a common-
law rule that limits a criminal defendants ability
to introduce evidence tending to show that another
person committed the crime for which the defendant
is on trial.
In Marrone, the supreme court held that a
defendant seeking to prove that someone else committed
the crime can not introduce evidence of threats by a
third person against the victim unless this evidence is
coupled with other evidence having an inherent tendency
to connect [this] other person with the actual
commission of the crime.5 In Smithart, the supreme
court re-affirmed this rule:
[A] defendant may always generally
suggest that someone other than the defendant
is guilty of the charged crime. But when a
defendant wishes to implicate a specific
individual, evidence of the third partys
guilt is admissible only if the defense can
produce evidence that tend[s] to directly
connect such other person with the actual
commission of the crime charged. This rule
derives from considerations of relevance and
materiality; as we explained in Marrone v.
State, such an initial evidentiary showing is
necessary because if evidence of motive alone
upon the part of other persons were
admissible ... in a case involving the
killing of a man who had led an active and
aggressive life[,] it might easily be
possible for the defendant to produce
evidence tending to show that hundreds of
other persons were possible suspects in the
murder. In such a system, the resulting
trial would be a confusing waste of judicial
resources. The concerns voiced in Marrone
have led virtually every state to require
some kind of preliminary evidentiary showing
before allowing introduction of
alternative-perpetrator evidence.
Smithart, 988 P.2d at 586-87 (footnotes
omitted). This quoted passage focuses on
evidence of another persons motive to commit
the crime. But the supreme court also stated
in Smithart that [c]ourts generally agree
that [the mere] opportunity [of another
person to commit the crime] is an
insufficient basis on which to admit
alternative-perpetrator evidence. Id. at
588.
Thus, under the Smithart-Marrone
rule, evidence of another persons motive to
commit the crime, or evidence of another
persons opportunity to commit the crime,
standing alone, will not be admissible when
offered to prove that this other person may
have committed the crime. As both Smithart
and Marrone state, this restriction on a
criminal defendants ability to introduce
evidence of another persons potential guilt
is based on the laws demand for relevance and
materiality.
The Smithart-Marrone rule can be
thought of as an issue-specific application
of Evidence Rule 403. That is, Smithart and
Marrone hold that evidence of another persons
motive to commit the crime, or evidence of
another persons opportunity to commit the
crime, standing alone, is so speculative and
carries so little probative weight that, even
though this evidence might technically meet
the test for relevance codified in Evidence
Rule 401, the evidence can be excluded under
Evidence Rule 403 the rule authorizing trial
judges to exclude relevant evidence if its
probative value is outweighed by its
potential for confusing the issues,
misleading the jury, or wasting time.
But if the proposed evidence of
another persons potential guilt exceeds this
threshold, so that a reasonable fact-finder
could conclude that the evidence raises a
reasonable doubt concerning the defendants
guilt, then the defendant should be allowed
to present the evidence. Smithart, 988 P.2d
at 587, 588.
Moreover, the Smithart-Marrone rule
is similar to Evidence Rule 404 in that it
restricts the admission of certain evidence
only when that evidence is offered for a
particular purpose here, the purpose of
trying to show that some identified other
person may have committed the crime.
Often, at a criminal trial,
evidence that is relevant for other purposes
may also tend to suggest the guilt of some
third person. The Smithart-Marrone rule does
not bar the admission of evidence simply
because the evidence tends to suggest someone
elses guilt. Rather, Smithart and Marrone
limit a defendants ability to offer evidence
when the primary relevance of that evidence
is to suggest someone elses guilt (until the
defendant has made the requisite threshold
showing of materiality).
This gloss on the Smithart-Marrone
rule is implicit in the Smithart courts
explanation of why the rule does not restrict
a defendants scope of argument to the jury:
[W]e agree with the court of appealss
conclusion that the trial court misconstrued
Marrone when it prevented Smitharts attorney
from arguing that DeForest was guilty.
Nothing in Marrone limits an attorney from
using an opening statement or closing
summation to draw reasonable inferences about
a third partys involvement from trial
evidence. The court of appeals correctly
explained that, under Marrone, Smithart
should have been able to argue to the jury
that DeForest was guilty of the charged
crimes:
[T]he Marrone rule limits the
introduction of evidence, but it does
not limit a partys ability to argue all
reasonable inferences from the evidence
that is admitted. If, despite Marrones
restriction on the introduction of
independent evidence that DeForest
committed the crime, it was clear that
sufficient evidence would be introduced
at Smitharts trial to warrant a
reasonable inference that DeForest might
be the perpetrator, then Smithart would
be entitled to announce this inference
in his opening statement.
Smithart, 988 P.2d at 589 (footnotes omitted).6
(b) Clevelands interpretation of Smithart
Cleveland argues that Judge Erlich violated
Smithart when he prohibited Cleveland from offering
hearsay testimony regarding Harry Morenas statements to
the troopers about Morenas visits to Clevelands house
on the weekend of the sexual assault (November 17-19,
2000).
It is important to note, at the outset, that
Clevelands case does not present a typical Smithart
problem. Judge Erlich never invoked the Smithart-
Marrone rule to preclude Cleveland from offering
evidence of another persons potential guilt. Nor did
Judge Erlich invoke this rule to preclude Clevelands
attorney from openly accusing other people (Harry
Morena, Mary Williams, and Dora Williams) of committing
the crimes for which Cleveland was charged. In fact,
the defense attorney leveled these accusations both in
his opening statement and in his summation to the jury.
Clevelands basic contention is that, once a
defendant has met the minimum threshold of materiality
specified in Smithart, the Smithart decision guarantees
a defendant the right to introduce evidence tending to
suggest another persons guilt, even when that evidence
would otherwise be barred by the normal rules of
evidence. Cleveland relies on the supreme courts
statements in Smithart that a defendants right to
present a defense is a fundamental element of due
process, and that evidentiary rulings [which]
substantially infringe ... the right to present a
defense ... violat[e] [a] defendants due process
rights.7
Cleveland argues that if all of his various
offers of proof are credited, those combined offers of
proof contained enough information implicating Harry
Morena as the perpetrator of the sexual assault on H.C.
to satisfy Smitharts minimum threshold of materiality.
From this, Cleveland concludes that he should have been
allowed to introduce all of the information contained
in those various offers of proof, even if this
information was objectionable hearsay or was otherwise
inadmissible under the normal rules of evidence.
Cleveland misunderstands Smithart. Although
Smithart confirms a defendants due process right to
present a defense, the right to present a defense does
not include the right to demand that the trial judge
disregard the rules of evidence. In particular, this
Court has held that a trial judge does not abridge a
criminal defendants right to present a defense when the
judge applies the hearsay rules to exclude proposed
defense testimony.
In Garroutte v. State, 683 P.2d 262 (Alaska
App. 1984), the defendant wished to introduce the
statement of an unavailable co-defendant, Snyder.
Snyder had pleaded guilty before Garroutte went to
trial. During Snyders interview with the probation
officer assigned to prepare the pre-sentence report,
Snyder admitted committing the crime, but he asserted
that his accomplice had not been Garroutte, but rather
a third person.8
When Garroutte learned of Snyders statement
to the probation officer, Garroutte asked his trial
judge to allow hearsay testimony concerning Snyders out-
of-court statement. The trial judge acknowledged that
Snyders statement potentially fell within Evidence Rule
804(b)(3)s exception for statements against penal
interest, but the judge concluded that Snyders
statement lacked the circumstantial guarantees of
trustworthiness required by Evidence Rule 804(b)(3).9
The judge then ruled that, because Snyders out-of-court
statement was not admissible under any of the
exceptions to the hearsay rule, Garroutte was barred
from offering that statement into evidence.10
On appeal, this Court upheld the trial judges
ruling that Snyders statement lacked sufficient
circumstantial guarantees of trustworthiness to qualify
for admission under Evidence Rule 804(b)(3). We then
addressed Garrouttes claim that, even though Snyders
statement was inadmissible hearsay, Garroutte had a due
process right to present this evidence anyway:
Garroutte separately argues that
exclusion of Snyders statement violated his
constitutional right to due process of law.
He relies on Chambers v. Mississippi, 410
U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297
(1973). In Chambers, the United States
Supreme Court held that the due process
clause was violated by mechanical application
of a state law excluding statements against
penal interest. The court reversed the
defendants conviction because he had been
precluded from admitting an out-of-court
statement that afforded persuasive assurances
of trustworthiness and was well within the
basic rationale of the exception for
declarations against interest. Chambers, 410
U.S. at 302, 93 S.Ct. at 1049, 35 L.Ed.2d at
313. [But the] standards of admissibility
prescribed by Evidence Rule 804(b)(3)
parallel the constitutional mandate of
Chambers. ... Our holding that Snyders
statement was not clearly corroborated
therefore controls Garrouttes constitutional
claim.
Garroutte, 683 P.2d at 267.
See also Bright v. State, 826 P.2d 765, 771-72 (Alaska
App. 1992), rejecting another claim that a trial judge violated a
defendants right to due process when she barred the defense from
offering inadmissible hearsay testimony regarding out-of-court
statements made by co-defendants; DAntorio v. State, 837 P.2d
727, 735-36 (Alaska App. 1992), rejecting a claim that the trial
judge violated the defendants right to due process when the judge
excluded inadmissible hearsay testimony offered by the defense;
and Balentine v. State, 707 P.2d 922, 925-26 (Alaska App. 1985),
rejecting a similar claim.
In sum, Cleveland is wrong when he argues that Smithart
gives defendants the right to override the normal rules of
evidence when they offer testimony tending to show that someone
else committed the crime. The Smithart decision clarifies the
rules under which a defendant may introduce testimony suggesting
another persons guilt, but the supreme courts discussion of this
point presumes that the offered testimony is in fact admissible
under the rules of evidence. Smithart does not give defendants
the right to introduce testimony or physical evidence that fails
to qualify for admission under the rules of evidence.
Clevelands attorney proposed to have Trooper Summey
testify about Harry Morenas statements to another trooper
(Trooper Terry), statements in which Morena described his visits
to Clevelands house on Saturday, November 18, 2000. This
proposed testimony was clearly hearsay. Cleveland argued that
this hearsay testimony was admissible under the residual
exception codified in Evidence Rule 804(b)(5), but the record
shows that much of the same information was available through the
testimony of other witnesses, and Judge Erlich concluded that
Morenas out-of-court statements lacked the circumstantial
guarantees of trustworthiness required by Rule 804(b)(5).
Cleveland does not actually dispute the ruling that the
offered hearsay failed to meet the criteria for admission under
Rule 804(b)(5). Moreover (as explained above), we have reviewed
the record and we conclude that Judge Erlichs ruling was not an
abuse of discretion. Cleveland tries to circumvent Judge Erlichs
ruling by arguing that Smithart makes the hearsay rules
irrelevant. It does not.
Accordingly, we uphold Judge Erlichs decision to
exclude the offered hearsay testimony.
The trial judges ruling concerning the chair leg:
Clevelands attempt to introduce this piece of physical
evidence under the theory that it was the instrument
that was used to sexually penetrate H.C. during the
November 2000 sexual assault
As noted earlier, Harry Morena was charged
with assaulting his sister, H.C., with a chair leg at
the end of May 2001 (about two weeks before Clevelands
first trial).
On June 8, 2001 (i.e., the week before
Clevelands first trial), Trooper Summey interviewed
Morena about this incident. During this interview,
Morena admitted to Trooper Summey that he went to a
gathering at H.C.s house late in the evening of May
26th. Several people were there, drinking home brew.
H.C. and Morena got into an argument: according to
Morenas statement to Trooper Summey, H.C. was angry at
him for taking her four-wheeler without permission and
damaging some of her property. It is unclear from
Trooper Summeys description of the conversation whether
Morena admitted that he had done these things, or
whether Morena was merely saying that he and H.C.
argued because she accused him of doing these things.
In any event, during this argument, Morena
punched H.C. in the eye, and she went into her bedroom
and closed the door. Morena then removed one of the
legs from the wooden chair that he was sitting on; he
walked into H.C.s bedroom and hit her over the head a
few times with the chair leg. After the assault was
reported, the troopers discovered this chair leg in
H.C.s residence, next to her bed.
According to the testimony and the attorneys
descriptions of the chair leg, the chair leg weighed a
couple of ounces and, at its widest, had a diameter of
one and a half inches or less.
During the evidentiary hearing that was held
at Clevelands first trial, the defense attorney
asserted that this chair leg was the same instrument
that had been used to sexually penetrate H.C. during
the sexual assault at Clevelands house in November
2000. Judge Erlich replied that he was not sure that
there was a sufficient foundation to establish the
relevance of the chair leg for that purpose.
The next day (June 14, 2001), the parties
returned to court for a continuation of the evidentiary
hearing. Soon after the hearing started, Clevelands
attorney announced that he intended to seek admission
of the chair leg as a piece of physical evidence.
Judge Erlich asked the defense attorney how
the chair leg could have been the object used in the
sexual assault, when the doctor who examined and
repaired H.C.s injuries had testified that those
injuries were caused by an object that was six inches
in diameter. The defense attorney replied that the
doctor had said that H.C.s injuries could have been
inflicted with a smaller-diameter object if greater
force was used. Based on that testimony, the defense
attorney took the position that there was no minimum
size for the object and thus the one-and-a-half-inch
chair leg could have been used during the sexual
assault.
The parties have given us a very limited
record of Clevelands first trial and, in the few dozen
pages of record that we have, Judge Erlich never ruled
on the defense attorneys motion to admit the chair leg.
However, it appears that Judge Erlich denied the motion
because the defense attorney renewed the motion at
Clevelands second trial in September 2001.
Clevelands second trial began on September
11, 2001. Because all civil aviation was canceled that
day (thus preventing out-of-town witnesses from
attending the trial), the prosecutor and the defense
attorney gave their opening statements, and then the
jury was excused for the rest of the day. The defense
attorney took this opportunity to renew his request for
admission of the chair leg.
Based on the facts described above (i.e., the
evidence that Morena beat H.C. with the chair leg
during the assault at H.C.s house on May 27, 2001),
Clevelands attorney argued that Morena must have used
the same chair leg (or a nearly identical object) to
sexually assault H.C. at Clevelands house six months
before, in November 2000.
Judge Erlich noted that the chair leg was
much thinner than the object described in the doctors
testimony from Clevelands first trial. But more
important, Judge Erlich thought, was the fact that the
chair leg was found at H.C.s house in May 2001 i.e.,
it was found at another location six months after the
sexual assault committed at Clevelands house. In other
words, the defense attorneys theory of relevancy
depended on several unlikely assertions: that Morena
had removed the chair leg from H.C.s house in November
2000, that Morena took the chair leg to Clevelands
house and used it commit the sexual assault on H.C.,
and that Morena then returned the chair leg to H.C.s
house and re-fitted it to the chair so that Morena
could sit on that chair when he visited H.C.s house in
May 2001, and so that he could again remove the leg
from the chair and use it as a weapon when he got into
the argument with H.C. at the end of May 2001.
Judge Erlich concluded that the defense
attorneys theory of relevance was too speculative to
support a reasonable conclusion that this chair leg was
the instrument used to sexually penetrate H.C. at
Clevelands house in November 2000. For this reason,
Judge Erlich ruled that the defense attorney had failed
to establish a sufficient foundation to support a
finding that the chair leg was relevant, and he
therefore denied the defense request to introduce the
chair leg into evidence.
The next day (September 12, 2001), testimony
began at Clevelands second trial. The first government
witness was Dr. Frances R. Wilson, the surgeon who
evaluated H.C.s injuries and operated on H.C. to repair
them. Dr. Wilsons testimony supported Judge Erlichs
ruling regarding the chair leg.
Dr. Wilson testified that H.C. had a
laceration that went way up into her rectum, ... all
the way through the muscle, ... and into the fat around
the rectum. This laceration was between four and six
inches in length that is, it penetrated four to six
inches into H.C.s body. Dr. Wilson concluded that this
injury was caused by somebody forcibly pushing an
object into H.C.s rectum. Judging from the nature and
extent of the injury, Dr. Wilson concluded that this
object was at least the diameter of a baseball bat, or
even bigger as large as four to six inches in
diameter.
In follow-up questioning, Dr. Wilson
specifically rejected the suggestion that this injury
could have been caused by a mans penis. She reiterated
that the object had to have been about four inches in
diameter.
The defense attorney engaged in relatively
brief cross-examination of Dr. Wilson. (This cross-
examination covers only four pages of transcript.) For
present purposes, the salient aspect of that cross-
examination is that the defense attorney never
questioned Dr. Wilsons assertion that the object which
inflicted H.C.s injury had to have been at least
approximately four inches in diameter.
Based on Dr. Wilsons testimony, and on the
physical dimensions of the chair leg, and on the fact
that this chair leg was attached to a chair in H.C.s
house on the evening of May 26-27, 2001 (i.e., six
months after the sexual assault at Clevelands house),
Judge Erlich did not abuse his discretion when he ruled
that no reasonable fact-finder could conclude that this
same chair leg was the instrument used to sexually
penetrate H.C. at Clevelands house in November 2000.
Accordingly, we uphold Judge Erlichs ruling that
Cleveland failed to establish the relevance of the
chair leg.
Clevelands brief to this Court contains
scattered sentences in which he continues to argue the
relevance of the chair leg. For example, on page 11 of
his brief, Cleveland asserts that the chair leg was
ostensibly similar to the instrument [used during the
sexual assault]. Likewise, on page 17 of the brief,
Cleveland asserts that the chair leg could have been
used to cause the laceration to [H.C.s body]. Neither
of these assertions is supported by the record.
In addition, Cleveland relies on the same
construction of Smithart that we discussed in the
previous section of this opinion: the argument that
Smithart allows a defendant to circumvent the normal
rules of evidence if the defendant wishes to argue that
someone else might have committed the crime. This is
not what Smithart stands for.
The trial judges ruling concerning evidence of Morenas
May 2001 assault on H.C.: Clevelands attempt to
introduce evidence of this assault to prove Morenas
propensity to commit assault
The final issue raised in this appeal arises
from Judge Erlichs refusal to allow Cleveland to
introduce any evidence that Harry Morena assaulted H.C.
with the chair leg in May 2001. At some point either
just before Clevelands first trial or during the early
stages of that first trial, Judge Erlich ruled that
Cleveland could not offer evidence of Morenas assault
on H.C. on May 27, 2001. We do not have a record of
that ruling, but Clevelands attorney refers to the
ruling during the evidentiary hearing of June 13, 2001
(i.e., in the middle of Clevelands first trial). At
that June 13th hearing, the defense attorney asked
Judge Erlich to reconsider this issue.
In addition to trying to get the chair leg
itself into evidence, Clevelands attorney also wanted
to call Morena to the stand to question him about the
May 27th assault. After Morena invoked his privilege
against self-incrimination and became unavailable as a
witness, the defense attorney offered the testimony of
Trooper Summey. Summey was prepared to testify that,
when he interviewed Morena on June 8, 2001 (that is,
just five days before the evidentiary hearing), Morena
confessed to beating his sister H.C. with the chair leg
during an argument at her house on the evening of May
26-27, 2001.
The State did not object to this proposed
testimony on hearsay grounds (apparently because
Morenas statements were so clearly against his penal
interest). However, the State argued that Cleveland
was not entitled to introduce any evidence of the May
27th assault. The State contended that the proposed
evidence was barred by Evidence Rule 404(b)(1), because
it was evidence of a bad act committed by Morena
offered to prove his propensity to commit similar bad
acts.
When the defense attorney responded that the
May 2001 assault was relevant to show Morenas motive,
the prosecutor objected that it was impossible for a
later event (i.e., the May 2001 assault at H.C.s house)
to provide the motive for an earlier event (i.e., the
November 2000 sexual assault at Clevelands house). As
a matter of logic, this is true, but it misses the
point. Clevelands attorney was not arguing that Morena
was motivated to sexually assault H.C. in November 2000
because of something that happened six months later, in
May 2001. Rather, the defense attorney argued that
both the May 2001 assault and the November 2000 sexual
assault were manifestations of the same underlying
motive by which the defense attorney actually meant
trait of character.
Responding to the prosecutors objection, the
defense attorney clarified his position for Judge
Erlich:
Defense Attorney: [I concede that the
prosecutor] has a point about ... chronology.
[But Im] not talking about a motive as we
typically understand [that term]. [I am]
talking about a motive to physically harm
someone. And that motive to physically harm
someone is, for lack of a better phrase,
cruelty [or] meanness [or] willingness to see
someone suffer. I am asserting that these
two incidents [i.e., the May 2001 assault
with the chair leg, and the sexual assault in
November 2000] establish [Morenas] cruelty,
meanness, willing[ness] to see someone
suffer. And ... the fact that [the victims]
are the same [person] increases the motive
because a person who is willing to be cruel
and [to] hurt a person [at] time A, whenever
that takes place, ... a person who is willing
to do that is presumably willing to cause
injury and pain and [to] be cruel to that
same person at time B. Thats [my argument].
On one level, the defense attorneys argument for
admission of this evidence is clearly inconsistent with
Evidence Rule 404(b)(1). Rule 404(b)(1) bars the
introduction of specific instances of a persons
cruelty, meanness, or willingness to see someone suffer
when this evidence is offered to prove the persons
general propensity to be cruel, to be mean, or to
inflict suffering on other people.
However, the defense attorney also noted that the
victim of both assaults was the same person. In fact,
during one of the defense attorneys other statements to
Judge Erlich, he expressly drew an analogy to Evidence
Rule 404(b)(4) the rule that authorizes the admission
of a defendants other acts of domestic violence in a
prosecution for a crime of domestic violence. That is,
the defense attorney was arguing that he should be able
to introduce evidence of Morenas act of domestic
violence (his assault on H.C. in May 2001) for the
purpose of showing that Morena had a propensity to
commit acts of domestic violence against H.C. and,
thus, that Morena had possibly committed the sexual
assault at Clevelands house in November 2000.
Judge Erlich understood that the defense attorney was
arguing that the incident of May 2001 was relevant to show that
Morena characteristically engaged in domestic violence against
his sister, H.C.. And the judge rejected the prosecutors
position that a subsequent act could never reveal the motive
behind a prior act. However, Judge Erlich declared that he did
not believe the defense attorney had demonstrated a sufficient
connection between the May 2001 assault and the November 2000
sexual assault:
The Court: As [the defense attorney]
noted, the DV rule [i.e., Evidence Rule
404(b)(4)] doesnt talk about prior or
subsequent act[s]. [But] as we all
recognize, its really unusual for a
subsequent act ... to relate back. [The
defense attorney] says [that the relevance of
the May 2001 assault] is not motive, quite;
[rather,] it goes to cruelty, and [that] its
not propensity. And heres what my problem
is: I dont think [that], standing by itself,
the May 2001 incident is relevant unless
there [is] something prior to establish its
relevance. I mean, thats the way I see it.
... [There] would [have to] be something
more.
A few minutes later, the defense attorney asked for clarification
of the judges ruling:
Defense Attorney: I want to clarify [my
understanding of your ruling]. You have
found that the May [2001] incident involving
Mr. Morena and [H.C.] is irrelevant because
there appears to be no relation between the
May incident and the November incident, is
that correct?
The Court: Thats partially correct.
... The argument that something happens
after something [else], and it relates back
[to the earlier event], is an argument thats
difficult to make in the law[.] ... To
argue that the incident that [occurred] in
May of 2001 is relevant to the issues in this
trial, youd at least need to [establish] a
predicate of some prior kind of interaction
between Mr. Morena and [H.C.] that would fall
within the [domestic violence category],
okay? Thats where Im coming from. [Does
that] clarif[y] it?
Defense Attorney: That does.
In effect, Judge Erlich told the defense attorney, Show
me more. I am not convinced that the single assaultive incident
of May 27, 2001 proves that Morena characteristically commits
acts of domestic violence against H.C.. If you bring me
additional evidence of a pattern of domestic violence, I will
reconsider my ruling.
For purposes of the present appeal, it is important to
remember that Judge Erlich made this ruling during the middle of
Clevelands first trial. This first trial ended in a mistrial,
leading to Clevelands second trial (and the convictions which he
now appeals). Thus, the defense attorney had two opportunities
(the remainder of Clevelands first trial, and the entirety of
Clevelands second trial) to present the evidentiary foundation
that Judge Erlich had asked for evidence of other acts of
domestic violence.
The defense attorney could have asked H.C. about these
matters. Indeed, the record shows that this entire evidentiary
discussion and ruling took place while H.C. was on the witness
stand at Clevelands first trial. After Judge Erlich issued the
ruling that we have just quoted, the defense attorney announced
that he intended to finish his cross-examination of H.C., and
that he wanted to reserve the right to recall H.C. during the
defense case so that he could ask her about other incidents
between herself and Harry Morena i.e., so that he could
establish the domestic violence predicate that Judge Erlich asked
for.
We note, moreover, that most of the witnesses who
testified at Clevelands trial (all of them except Dr. Wilson and
the state troopers) were residents of the small village of
Ambler, and many of these witnesses were related to each other.
They were presumably acquainted with each others domestic
affairs, and they might have provided information about the
relationship between H.C. and Morena even if H.C. herself was
reticent on this topic.
We have no transcript of the testimony from Clevelands
first trial, so we do not know if Clevelands attorney pursued the
question of other acts of domestic violence during the remainder
of that first trial. But we do have a transcript of Clevelands
second trial. And at the second trial, the defense attorney did
not question H.C. about her relationship with Morena, nor did he
ask any other witness about this topic.
In particular, the defense attorney did not ask H.C. to
describe any prior incidents in which Morena acted violently
toward her or physically abused her, nor did the defense attorney
ask H.C. about any other prior incidents that might have created
ill-will between herself and Morena. Not only did the defense
attorney fail to ask H.C. about these matters, but he did not ask
any other witness about these matters, and he made no other offer
of proof about these matters.
From the defense attorneys silence on this issue, from
his failure to try to establish the foundational predicate that
Judge Erlich had asked for, we can only conclude that the defense
attorney had no further evidence of domestic violence or
animosity between Morena and H.C..
Judge Erlich did not irrevocably shut the door on the
defense attorneys effort to introduce evidence of Morenas May
2001 assault on H.C. with the chair leg. Instead, Judge Erlich
told Clevelands attorney that he was not convinced that this
single incident proved that Morena characteristically engaged in
this type of behavior, but he was willing reconsider the
admissibility of the May assault if the defense attorney offered
evidence of some other incident of domestic violence between H.C.
and Morena.
Given Judge Erlichs ruling, Clevelands attorney was
obviously motivated to offer this additional evidence if it had
existed. But he did not offer it even though Morenas statement
to Trooper Summey clearly suggested that there had been at least
one prior incident in which Morena took H.C.s four-wheeler and
damaged some of her property. Indeed, on pages 13-14 of his
brief to this Court, Clevelands attorney refers to this aspect of
Morenas statement. Clevelands attorney declares that [i]t is
instructive to note that the record is incomplete about the
timing of the thefts and destruction of H.C.s property by Morena.
The fact that the record contains no clarification of
these matters may indeed be instructive, but probably not in the
sense Clevelands attorney intended. The defense attorney was on
notice that this evidence was needed, and he had a full
opportunity to ask H.C. (or any other resident of Ambler) about
these topics, and yet he did not. In fact, the record shows that
Clevelands attorney never asked Judge Erlich to revisit the
question of whether the defense could offer evidence of Morenas
May 27th assault on H.C.. From this, the instruction we draw is
that there was no admissible evidence of any other incidents of
violence or abuse between Morena and H.C..
On appeal, Cleveland asserts (on page 14 of his brief)
that the record presented to Judge Erlich establish[ed] beyond
any doubt a continuing pattern of victimization of H.C. by
Morena. But this was precisely the assertion that Judge Erlich
concluded had not been proved. In effect, Judge Erlich told the
defense attorney that he was not convinced that a single act of
violence (the May 27th assault) established a pattern of violence
or abuse, or that it otherwise adequately supported the defense
attorneys underlying assertion that Morena characteristically
assaulted his sister.
Judge Erlich told Clevelands attorney that if the
defense could offer evidence of any prior incident of domestic
violence, then he would be willing to re-assess the relevance and
admissibility of the May 27th assault. But, as we have explained
here, Clevelands attorney offered nothing further.
We will assume, for purposes of argument, the validity
of Clevelands underlying contention that Alaska Evidence Rule
404(b)(4) might authorize the admission of evidence of domestic
violence committed by people other than the defendant. But even
if we make that assumption, the question remains whether Judge
Erlich abused his discretion when, in the absence of any further
proof that there was a history of violence or abuse between
Morena and H.C., the judge declined to allow Clevelands attorney
to offer evidence of the May 27th assault for the purpose of
showing that Morena was characteristically abusive or violent
toward H.C..
In Bingaman v. State, 76 P.3d 398 (Alaska App. 2003),
we cautioned that even though an act might qualify as domestic
violence under the expansive definition codified in AS 18.66.990
(and incorporated by reference in Evidence Rule 404(b)(4)), trial
judges must be vigilant to control the admission of other-crimes
evidence under Rule 404(b)(4). Judges must carefully gauge
whether the other crime that the State proposes to prove actually
supports the inference for which it is offered under Rule
404(b)(4): the inference that a person who has committed this
other crime is a person who characteristically engages in this
type of crime, and is therefore more likely to have committed the
crime being litigated. Id. at 412-13.
We note that there are many types of assault. The fact
that a person has engaged in one type of assault might not
necessarily be probative of that persons willingness or
propensity to engage in another kind of assault. For instance,
in Carpentino v. State, 38 P.3d 547, 553-54 (Alaska App. 2002),
we upheld a trial judges ruling that the defendants alleged
sexual abuse of a male child was not sufficiently probative of
his propensity to sexually abuse a female child to make this
evidence admissible under Evidence Rule 404(b)(2). And in
Bingaman itself, we pointed out that a defendants willingness to
engage in one sort of sexual assault might not necessarily be
probative of the defendants willingness to engage in another sort
of sexual assault. Bingaman, 76 P.3d at 412.
In the present case, Cleveland wanted to offer evidence
that Morena had gotten into an argument with his sister, H.C.,
and had beaten her over the head with a chair leg. Cleveland
asserted that this evidence was relevant to the issue being
litigated at his trial: the identity of the person who sexually
assaulted H.C. at Clevelands house. But Judge Erlich was not
required to unquestioningly accept the underlying premise of
Clevelands argument the premise that if Morena was willing to
beat his sister on the head with a stick on one occasion, then he
was a person who characteristically assaulted his sister, and he
therefore was more likely to have raped his sister in a manner
likely to inflict severe internal injuries on her.
This is the same problem of relevancy that we discussed
in Bingaman: the issue of whether it is reasonable to infer that
a person who commits one kind of assault (here, a physical
assault) is therefore more likely to commit a different kind of
assault (sexual assault). Although reasonable judges might
differ in their evaluations of this issue, we conclude that Judge
Erlich did not abuse his discretion when he concluded that the
defense attorneys proposed inference concerning Morenas character
was not self-evident from the single incident of assaultive
behavior in May 2001. Therefore, Judge Erlich did not abuse his
discretion when he required Cleveland to offer some additional
evidence of the relationship between Morena and H.C. evidence
suggesting that the May 27th assault was part of a pattern of
domestic violence or abuse, or evidence otherwise suggesting that
the May 27th assault was but one manifestation of an underlying
antagonism between Morena and his sister before he would allow
Cleveland to introduce evidence of the May 27th assault and argue
to the jury that this assault made it more likely that Morena was
the perpetrator of the November 2000 sexual assault.
As we have explained, Cleveland offered no further
evidence on this point. Accordingly, Judge Erlich did not abuse
his discretion when he barred Cleveland from introducing evidence
of the May 2001 assault.
As was true with respect to Judge Erlichs other
evidentiary rulings, Cleveland again argues that Smithart gives
him the right to introduce evidence of the May 2001 incident
despite Judge Erlichs finding that this evidence was not relevant
for the purpose that Cleveland offered it i.e., despite the
judges finding that the May 2001 incident, standing alone, did
not establish Morenas characteristic propensity to sexually
assault his sister. But, as explained above, Smithart does not
bar a trial judge from enforcing the rules of evidence against a
defendant.
Conclusion regarding Clevelands attacks on his
conviction
For the reasons explained here, each of Judge
Erlichs three challenged evidentiary rulings is
supportable under the facts of the case and the
governing law. We therefore uphold those rulings, and
we accordingly affirm Clevelands convictions.
Clevelands sentence appeal
Cleveland was convicted of second-degree
sexual assault (sexual penetration of an incapacitated
person), second-degree assault (reckless infliction of
serious physical injury), and manufacturing alcohol in
a local option area. Both second-degree sexual assault
and second-degree assault are class B felonies, while
the offense of manufacturing alcohol in a local option
area is a class C felony.11
Cleveland had previously been convicted of
two felonies. In 1980, he was convicted of second-
degree assault after he attacked someone with a
screwdriver. And in 1985, Cleveland was convicted of
first-degree sexual assault for raping his sister-in-
law after an evening of drinking. Cleveland was
sentenced to 15 years in prison for this sexual
assault.
In addition to these felonies, Cleveland had
several other convictions for assault between 1979 and
1985 (when he was imprisoned for the first-degree
sexual assault). And he was convicted of two counts of
fourth-degree assault in October 2000 i.e., the month
before the sexual assault in this case. Finally, the
pre-sentence report contained an unrebutted allegation
that Cleveland committed another rape in 1982, a crime
that went unprosecuted because the victim did not
report it.
Because Cleveland was a third felony offender
for presumptive sentencing purposes, he faced a 6-year
presumptive term for the second-degree sexual assault
and second-degree assault convictions, and he faced a 3-
year presumptive term for the manufacturing alcohol
conviction.12
Judge Erlich found that the State had proved
six aggravating factors under AS 12.55.155(c): (c)(1)
that Clevelands victim sustained physical injury;
(c)(4) that Cleveland used a dangerous instrument in
furtherance of the offense; (c)(5) that Cleveland knew
that the victim was particularly vulnerable; (c)(7)
that one of Clevelands prior felonies was of a more
serious class of offense than his present crimes;
(c)(8) that Clevelands criminal history included
aggravated or repeated instances of assaultive conduct;
(c)(10) that Clevelands conduct in committing the
physical assault was among the most serious within the
definition of that offense, because Clevelands conduct
actually amounted to first-degree assault; and
(c)(18)(B) that Cleveland had committed another sexual
assault involving the same or similar conduct.
Based on these aggravators, and based on
Clevelands extensive history of assaultive crimes,
Judge Erlich concluded that isolation was the primary
sentencing goal in Clevelands case. He sentenced
Cleveland to a composite term of 19 years imprisonment
for these three crimes.13
Judge Erlich recognized that, because
Clevelands sentence exceeded the 10-year maximum term
of imprisonment that Cleveland could have received for
his most serious offenses (the two class B felonies),
the judge could not impose the 19-year sentence without
finding that this length of imprisonment was necessary
to protect the public. See Neal v. State, 628 P.2d 19,
21 (Alaska 1981); Mutschler v. State, 560 P.2d 377, 381
(Alaska 1977). However, the judge did make this
finding, based on Clevelands history of violence,
violence that appeared to be most often triggered when
Cleveland was drinking, and based on the fact that
previous lengthy prison sentences had failed to deter
Cleveland from further violent crimes.
In his brief to this Court, Cleveland
concedes that he has a history of violence, but he
argues that his criminal history does not support Judge
Erlichs decision to impose a composite sentence that is
nearly double the maximum sentence for either of
Clevelands most serious crimes (the second-degree
sexual assault and the second-degree assault).
Judge Erlich concluded that Clevelands
current crimes were aggravated, and the record supports
this conclusion. Judge Erlich could also properly take
account of Clevelands lengthy history of violence and
sexual assault. In addition, the judge could properly
consider the fact that a previous lengthy prison
sentence had failed to deter Cleveland from committing
two more violent felonies.
We have previously upheld atypically lengthy
prison sentences for defendants who committed
apparently inexplicable acts of extreme violence.14
While the cases in the accompanying footnote are
homicide cases, we conclude that the same principle
applies to Clevelands case. Given Clevelands status as
a third felony offender, his lengthy history of
assaults and sexual assaults, his failure to be
deterred by previous prison sentences, and his
apparently inexplicable decision to inflict severe
injuries on the victim in this case, we conclude that
Judge Erlich was not clearly mistaken when he imposed a
sentence that exceeded the normal 10-year ceiling under
the Neal-Mutschler rule.15
Conclusion
The judgement of the superior court is
AFFIRMED.
_______________________________
1 AS 11.41.420(a) and AS 11.41.210(a), respectively.
2 Smithart v. State, 988 P.2d 583, 586-592 (Alaska 1999),
interpreting Marrone v. State, 359 P.2d 969, 984-85 n. 19 (Alaska
1961).
3 We are speaking here of the testimony given by these
witnesses at Clevelands second trial. Cleveland was tried
twice; his first trial ended in a mistrial. We do not have
a transcript of the testimony at that first trial.
4 Id., 899 P.2d at 1375, citing Idaho v. Wright, 497 U.S.
805, 822-24; 110 S.Ct. 3139, 3150-51; 111 L.Ed.2d 638
(1990).
5 Marrone, 359 P.2d at 984.
6 Quoting this Courts earlier decision in Smithart v.
State, 946 P.2d 1264, 1281 (Alaska App. 1997).
7 Smithart, 988 P.2d at 586.
8 Garroutte, 683 P.2d at 264-65.
9 Alaska Evidence Rule 804(b)(3) states that when [a]
statement tending to expose the declarant to criminal
liability [is] offered to exculpate the accused, the
statement is not admissible unless corroborating
circumstances clearly indicate the trustworthiness of the
statement.
10 Garroutte, 683 P.2d at 265.
11 See AS 11.41.420(b), AS 11.41.210(b), and AS
04.16.200(b).
12 See AS 12.55.125(d)(2) and AS 12.55.125(e)(2).
13 On both the sexual assault and the physical assault
convictions, Judge Erlich sentenced Cleveland to 10 years
imprisonment. The judge imposed 6 years of the physical
assault sentence consecutively to the sexual assault
sentence, for a total of 16 years to serve. In addition,
Judge Erlich sentenced Cleveland to serve 5 years for
manufacturing alcohol, of which 3 years were imposed
consecutively to Clevelands sexual assault and physical
assault. Thus, Clevelands total time to serve is 19 years.
14 See Hamilton v. State, 59 P.3d 760, 772 (Alaska App.
2002); Cheely v. State, 861 P.2d 1168, 1178-1180 (Alaska
App. 1993); Norris v. State, 857 P.2d 349, 356-58 (Alaska
App. 1993); Gustafson v. State, 854 P.2d 751, 763-67 (Alaska
App. 1993); Monroe v. State, 847 P.2d 84, 92-93 (Alaska App.
1993); Page v. State, 657 P.2d 850, 853-55 (Alaska App.
1983); Faulkenberry v. State, 649 P.2d 951, 956-57 (Alaska
App. 1982).
15 See McClain v. State, 519 P.2d 811, 813-14 (Alaska
1974) (an appellate court is to affirm a sentencing decision
unless the decision is clearly mistaken).
