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Gross v. State (08/06/2004) ap-1945
Gross v. State (08/06/2004) ap-1945
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
ROBERT W. GROSS, )
) Court of Appeals No.
A-8558
Appellant, )
Trial Court No. 4FA-02-2049 Cr
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1945 August 6, 2004]
)
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Jane F. Kauvar,
Judge.
Appearances: David K. Allen, Assistant
Public Advocate, Fairbanks, and Joshua P.
Fink, Public Advocate, Anchorage, for the
Appellant. Kenneth M. Rosenstein, 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.
Robert W. Gross was charged with third-degree assault
for pointing a handgun at two men. At trial, Grosss attorney
proposed to call a character witness who would testify that he
had known Gross since Gross was a boy, and that Gross was a
peaceable person, not someone who would assault other people.
The trial judge ruled that this character evidence was
inadmissible unless Gross himself took the stand and denied
committing the assault.
On appeal, the State concedes that the trial judges
ruling was wrong. The States concession is well-founded.
Alaska Evidence Rule 404(a)(1) expressly authorizes the
defendant in a criminal case to introduce evidence of a relevant
trait of their own character. And when a defendant is charged
with assaultive conduct (as Gross was), the trait of
peaceableness is obviously relevant to the decision of the case
for if the defendant is characteristically peaceable, it is less
likely that the defendant committed the assaultive conduct
alleged by the State.
Evidence Rule 404(a)(1) does not restrict the
admissibility of this character evidence to trials in which the
defendant takes the stand. Rather, as our supreme court
recognized in Freeman v. State, this evidence is admissible
regardless of whether the defendant chooses to testify.1
However, it is not clear that Gross is entitled to
challenge the trial judges ruling on appeal. Here, after the
trial judge told the defense attorney that she would not allow
Gross to introduce this character evidence unless Gross
testified, Gross chose to testify so that he could also present
the character evidence. This may have mooted any controversy
regarding the trial judges ruling.
Our supreme court addressed a similar situation in
State v. Wickham, 796 P.2d 1354 (Alaska 1990). In Wickham, the
trial judge ruled that if the defendant took the stand, the State
would be allowed to impeach the defendant with evidence of his
prior perjury convictions. Faced with this ruling, the defendant
elected not to take the stand. The supreme court held that,
because the defendant declined to force the issue by testifying
and suffering the proposed impeachment, the defendant could not
attack the judges ruling on appeal. Id. at 1355-59.
Here, the trial judge ruled that Gross could not
present his character evidence unless he testified. Rather than
force the issue, Gross chose to testify. Under Wickham, Grosss
decision to testify appears to have mooted any challenge to the
trial judges ruling.
Moreover, even if Gross were entitled to attack the
trial judges ruling in this appeal, the error in the trial judges
ruling was harmless. When the parties and the trial judge
debated this evidentiary issue, Grosss trial attorney did not
assert that Gross would have refrained from taking the stand had
it not been for the trial judges ruling. Rather, the defense
attorney himself suggested that the courts ruling, although
erroneous, was moot because Gross intended to testify.
The defense attorneys statements regarding Grosss
intention to take the stand mirrored what the defense attorney
had said earlier, in his opening statement. During that opening
statement (which was delivered at the beginning of the trial),
the defense attorney made various assertions of fact which
apparently could not be proved except through the testimony of
the defendant. These assertions drew an objection from the
prosecutor, prompting the trial judge to call a bench conference.
At this bench conference, the trial judge asked the defense
attorney if Gross was going to take the stand. The following
colloquy ensued:
Defense Attorney: Oh, yeah. Yeah, hes
going to have to take the stand. I
anticipate him ...
. . .
The Court: Okay. Because you cant be
saying this stuff and then not put him on.
You cant get in ...
Defense Attorney: I know, but I think
mostly its going to be his decision, but ...
I anticipate him testifying.
Indeed, shortly after the trial
judge made the erroneous ruling concerning
the admissibility of the proposed character
evidence, Gross took the stand and gave his
version of events. Following Grosss
testimony, the defense called three character
witnesses to testify that Gross was not a
violent person.
In sum, even if Gross were entitled
to attack the judges evidentiary ruling in
this appeal, the trial judge ultimately
allowed Gross to present his character
evidence, and there is no indication that
Grosss decision to take the stand was
influenced by the trial judges erroneous
ruling. We therefore conclude that the error
was harmless.
The judgement of the superior court
is AFFIRMED.
_______________________________
1 486 P.2d 967, 972-73 (Alaska 1971).
