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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| LEANNE WACKER, | ) |
| ) Court of Appeals No. A-9617 | |
| Appellant, | ) Trial Court No. 3AN-05-1583 CR |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2125 November 30, 2007 |
| ) | |
Appeal from the
Superior Court, Third Judicial District,
Anchorage, Larry D. Card, Judge.
Appearances: Renee McFarland, Assistant
Public Defender, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellant.
Blair M. Christensen, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Talis J. Colberg,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
Leanne Wacker was convicted of third-degree assault,
driving under the influence, and failure to render assistance to
an injured person.1
In this appeal, Wacker argues that the trial court
erred in failing to issue a curative instruction after the
prosecutor made a comment in closing arguments that Wacker argues
improperly shifted the burden to present evidence and witnesses.
We hold that the comment in question did not constitute an
improper shift of the burden, so no curative instruction was
necessary.
Wacker also argues that the trial court should have
admitted certain evidence of habit to prove conduct in conformity
with that habit under Alaska Evidence Rule 406. Wacker sought to
admit evidence that her sister repeatedly drove while intoxicated
to prove that Wacker was not the driver. But we conclude, as did
the trial court, that the offered evidence was character evidence
barred by Evidence Rule 404(b).
We therefore affirm Wackers convictions.
Background facts and proceedings
On the night of February 20, 2005, Leanne Wacker had
plans to go out drinking in Anchorage with a friend, Danielle
Gregory, and Wackers sister, Brenda Boone. After obtaining
alcohol from two liquor stores and Wackers home, Wacker, Boone,
and Gregory went to Boones trailer, and spent several hours there
drinking.
After midnight, Boone, Gregory, and Wacker decided to
go out to some bars. The three women, with Boone driving Wackers
car, stopped briefly at two bars downtown; Boone went inside each
of the bars while Gregory and Wacker waited in the car. The
women then went to Chilkoot Charlies and spent thirty to sixty
minutes there, during which time Wacker had two more drinks and
Boone had three or four more drinks. After about an hour at
Chilkoot Charlies, a bouncer informed Wacker that Boone had to
leave the bar because she was too intoxicated. Boone, Wacker,
and Gregory left the bar and got in Wackers car.
On the way home, Boone and Wacker dropped Gregory off
at her apartment building. After leaving Gregorys apartment
building, Wackers vehicle was involved in an accident. As
Wackers vehicle was heading south on C Street crossing
International Airport Road, it ran a red light and struck another
vehicle. The driver of the other vehicle, Angelo Ofiana,
suffered some physical pain as a result of the crash, and his car
was totaled.
The identity of the driver at the time of the accident
was a contested issue at trial. Wacker testified that Boone, her
sister, was driving her car at all times after leaving Chilkoot
Charlies. Wacker testified that she wanted to call a cab outside
Chilkoot Charlies, but that Boone stated she was fine to drive
and insisted on driving Wackers car home. Wacker and Gregory
both testified that Boone drove from Chilkoot Charlies to
Gregorys building, and that Boone was still driving when she and
Wacker drove away from Gregorys building. Wacker further stated
that after her car came to a rest following the accident, Boone
climbed from the drivers seat into the back seat. Wacker
testified that Boone said I cant get another DUI, and asked
Wacker to tell the police that she (Wacker) was driving.
A taxi driver, Lampros Molfetas, was driving behind
Ofianas vehicle on International Airport Road and witnessed the
accident. Molfetas testified at trial that Wacker was the driver
of the car at the time it struck Ofianas vehicle. When Wackers
car did not stop after crashing into the other vehicle, Molfetas
followed the car and immediately called 911. The car drove about
150 yards past the scene of the crash and then stopped, and
Molfetas stopped his taxi directly behind it. He testified at
trial that Wacker exited the car from the drivers side door and
Boone exited from the passengers side shortly after the car came
to a rest. After exiting the vehicle, Boone told Molfetas that a
third person had been driving the car and had fled the scene
after the accident. But Molfetas testified that he watched the
car constantly after it hit Ofianas vehicle, continued down C
Street, and eventually slowed to a stop, and that he did not see
the passengers switch seats or see any person other than Wacker
and Boone exit the vehicle. He testified that he was [o]ne
hundred and ten percent certain that Wacker was the driver of the
car at the time of the accident.
When police arrived at the scene, Molfetas told them
that Wacker was the driver of the vehicle. A police officer
conducted field sobriety tests on Wacker, and she failed all of
them and was arrested. At the police station, a breath alcohol
test determined Wackers blood alcohol content to be .129.
Wacker was charged with third-degree assault, driving
while under the influence, and failure to render assistance to an
injured person after an accident. At trial, Wackers defense was
based on the argument that Boone was driving her vehicle at the
time the accident occurred. Boone, however, did not testify at
trial.
A defense investigator, Kim McGee, testified about the
efforts made to contact Boone before trial. She testified that
she tried to call Boone several times, but when McGee identified
herself, Boone hung up on her. McGee also tried to locate Boone
in person at several different addresses, without success.
Eventually, only a few days before trial, McGee was successful in
speaking with Boone on the telephone and serving her with a
subpoena to appear in court. Boone failed to appear in court on
the date specified in the subpoena, and did not testify at
Wackers trial.
In contrast with McGees testimony regarding her
difficulty in contacting Boone, Wacker testified that after the
accident but before trial Boone [came] over [to Wackers
apartment] all the time and frequently called Wacker.
Wacker argued that the jury should infer from Boones
failure to appear that Boone was driving at the time of the
accident and knew she was responsible, but did not want to admit
this in court.
During trial, Wacker attempted to introduce evidence
that Boone repeatedly would drink and drive, but Superior Court
Judge Larry D. Card ruled this evidence inadmissible. Judge Card
concluded that it was propensity evidence barred by Evidence Rule
404(b), not evidence of a regular habit admissible under Evidence
Rule 406.
Wacker also objected to a comment made by the
prosecutor during the States rebuttal closing argument. Wacker
argues that the comment improperly shifted the burden to the
defense to present evidence and witnesses. Judge Card ruled that
the comment did not improperly shift this burden to Wacker. He
also rejected two jury instructions proposed by Wacker, ruling
that the instructions misstated the law and were duplicative of
existing instructions.
The jury found Wacker guilty of all counts. Wacker
appeals her convictions.
Discussion
Wackers argument regarding statements made by the
prosecutor during closing arguments
On appeal, Wacker argues that the prosecutors comments
made during the States closing argument improperly shifted the
burden of proof to the defendant, and that the trial court erred
in denying Wackers request for a curative instruction.
During closing argument, the defense attorney argued,
inter alia, that the jury should infer from Boones failure to
answer the subpoena that Boone was guilty. The attorney stated:
We know [Boone is] dishonest. ... We know
that [Boone] doesnt follow court orders. She
was subpoenaed to be here. She isnt here.
She never did come in. We know she has a
guilty conscience, wont speak to her family,
wont speak to Ms. McGee back there, my
investigator, when she tried to talk to her.
Wont come to court when shes told to do so.
And shes hiding from the troopers and from
Ms. McGee. Why is that, if she wasnt
driving, [if] she was in the passenger seat?
Shes got a guilty conscience, ladies and
gentlemen, thats why shes not here despite
our best efforts to bring her in and show
you.
In the States rebuttal argument, the prosecutor made the
following comments:
Theres also been discussion about who really
has access to Ms. Boone. Youve heard
testimony that Ms. Boone calls the defendant
regularly. She leaves her messages. Before
[Wacker] moved in September ... [Boone] was
in and out of [Wackers] house. So Ill ask
you, who has access to Ms. Boone if they want
her here?
Wacker objected to this comment by the State, and Judge Card
overruled the objection.
After the State finished its rebuttal argument, Wacker
again objected to the prosecutors comment, arguing that it
improperly shifted to Wacker the burden to present evidence. The
State responded that the comment did not imply that it was
Wackers responsibility to produce Boone, but merely countered
Wackers argument that Boone was refusing to contact her family
and was making herself unavailable for a particular purpose.
Judge Card again overruled Wackers objection,
concluding that the prosecutors comment was related to the
evidence and facts of the case, and did not improperly shift the
burden to the defendant to produce evidence or witnesses. He
found that Wacker herself raised the issue of her sisters failure
to show up despite constant contact with the defendant outside
the courtroom. The judge also noted his frequent reminders to
the jurors that it is the States burden to produce evidence and
prove the defendants guilt beyond a reasonable doubt.
Despite these conclusions, Judge Card offered to
consider, in addition to the basic instructions that addressed
the States burden of proof, a jury instruction addressing this
particular situation, explicitly stating that the defendant never
has the burden to call any witness or produce any evidence.
Wacker proposed the following jury instruction:
In her closing argument, the prosecutor
suggested that Ms. Wacker should bear
responsibility for bringing a witness to
court. That suggestion was wrong.
The burden of proof and of bringing witnesses
to court always lies with the prosecution,
and not with the defendant.
Judge Card rejected this instruction, finding that the
second paragraph improperly stated the law: although the burden
of proving each element beyond a reasonable doubt lies with the
State, the State does not bear the responsibility of bringing all
witnesses (including, for example, witnesses for the defense) to
court.
Wacker offered to amend the second paragraph of the
instruction to state solely that the burden of proof beyond a
reasonable doubt always lies with the prosecution and not with
the defendant. Judge Card again rejected the proposed
instruction, finding that the existing instructions already
provided a clear statement of the law on this point.
Wacker argues that the prosecutors comment to the jury
who has access to Ms. Boone if they want her here? improperly
shifted the burden of proof, or the burden of producing
witnesses, to Wacker. The State argues that the prosecutors
comment should be interpreted as argu[ing] that there were
several other reasonable explanations as to why Boone may have
avoided involvement in the court proceedings, aside from Wackers
lone explanation of a guilty conscience.
In McCurry v. State,2 the Alaska Supreme Court
acknowledged that it is ordinarily improper [for the prosecutor]
to comment on the failure of the defendant to call particular
witnesses.3 This rule is meant to address situations in which
the prosecutor is asking the jury to draw an adverse inference
against the defendant based on the defendants failure to call
certain witnesses.4
This case presents a different situation. At trial,
Wacker presented evidence on the unavailability of Boone as a
witness, primarily through a defense investigator who testified
about the extensive efforts made by the defense to bring Boone in
to testify. Wackers attorney then argued that the jury should
draw an inference, favorable to the defense, from Boones failure
to testify namely, an inference that Boone was the one who was
responsible for the crime committed.
Viewed in context, the prosecutors comments in closing
argument merely pointed out that there was also evidence
contradicting Wackers assertion that Boone had failed to appear
despite Wackers best efforts namely, the evidence that Wacker
had continued to have contact with Boone throughout the time
leading up to trial. We agree with the trial court that the
prosecutors statements are properly viewed as a comment on the
evidence presented in the case, not a comment that improperly
shifted the burden to produce evidence or witnesses to the
defendant.
Since the prosecutor did not improperly shift the
burden of presenting evidence or witnesses to the defendant, it
was not necessary for the trial court to provide the jury with a
curative instruction addressing this situation. An additional
instruction was particularly unnecessary in light of the existing
jury instructions, which explained the States burden of proof and
stated that the defendant never has the burden to call any
witness or produce any evidence.
Wackers argument regarding the admissibility of
evidence of Boones history of drinking and driving
Wacker argues that the trial court erred in excluding
evidence of Boones history of drinking and driving.
At trial, Wacker attempted to introduce evidence that
Boone would frequently drive while intoxicated. Wacker made an
oral offer of proof, stating that she had several witnesses who
would testify about Boones practice of driving while shed been
drinking. She argued that the evidence was admissible as habit
evidence under Evidence Rule 406, and as evidence of prior bad
acts to prove identity (i.e., to prove that Boone was the driver
of the vehicle) under Rule 404(b)(1). Judge Card ruled that,
based on Wackers offer of proof, Boones history of drinking and
driving did not constitute habit under Rule 406, and was too
general to establish Boones identity as the driver.
After Judge Cards ruling, Wacker renewed her
application to allow evidence of Boones repeated acts of driving
after she had been drinking. Wacker made an offer of proof
through testimony (given outside the presence of the jury) from
another sister, Cathlee Bantasari. Bantasari testified that
Boone drank and did things that she should not be doing under the
influence of alcohol, such as driving or giving insulin shots to
her son. Bantasari stated that before the car accident she saw
Boone two or three times a year, but that she had not seen Boone
in almost a year at the time of her testimony. Judge Card ruled
that Bantasaris testimony on this subject was inadmissible
because it was propensity evidence barred by Evidence Rule
404(b), not evidence of a regular habit for purposes of Evidence
Rule 406.
Wacker now argues that Judge Card erred in determining
that Bantasaris testimony did not constitute evidence of habit
under Rule 406.
Alaska Evidence Rule 406 provides that [e]vidence of
the habit of a person ... is relevant to prove that the conduct
of the person ... on a particular occasion was in conformity with
the habit. Although the term habit is not defined in the rule
itself, the commentary to Rule 406 defines habit as a persons
regular practice of meeting a particular kind of situation with a
specific type of conduct.5
Wacker argues that Boones specific conduct in response
to [her need to go somewhere after she had been drinking] was
insisting, over objection, that she drive. Wacker avers that
Bantasaris testimony would have demonstrated that this conduct
was repeated frequently and consistently.6 But not all conduct
that is repeated frequently and consistently constitutes a habit.
A significant factor in the determination of habit is the degree
of volition required for the activity; the more thought and
planning required for the act, the less likely it will be found
to be a habit; the more reflexive and automatic the conduct, the
more likely it will be found to be habit.7
Boones acts of driving when she had too much to drink
were volitional decisions on her part, and those acts cannot be
said to have been performed out of reflex. We agree with Judge
Card that under, these circumstances, the evidence of Boones
drinking and driving constituted evidence of character,
inadmissible under Rule 404, not evidence of habit. This
decision aligns with a policy of caution in admitting evidence of
a pattern of conduct as habit, out of concern that the rule
admitting habit evidence will swallow the rule excluding
character evidence.8 Judge Card did not err in ruling the
evidence inadmissible under Rule 406.
Conclusion
The judgment of the superior court is AFFIRMED.
_______________________________
1 AS 11.41.220(a)(1)(B), AS 28.35.030(a), and AS
28.35.060(c), respectively.
2 538 P.2d 100 (Alaska 1975), overruled on other grounds
by Howe v. State, 589 P.2d 421 (Alaska 1979).
3 Id. at 103-04.
4 See Gass v. United States, 416 F.2d 767, 775 (D.C. Cir.
1969).
5 Commentary to Alaska R. Evid. 406 (quoting McCormick on
Evidence (2d ed.) 195, at 462).
6 See id. ([T]he more regular the performance of an act,
the more likely it is to be regarded as a habit.).
7 Stephen A. Saltzburg, Michael M. Martin, & Daniel J.
Capra, 2 Federal Rules of Evidence Manual (9th ed. 2006),
406.02[2], at 406-3.
8 See id.
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