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opinion is published in the Pacific Reporter. Readers
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| EMANUAL L. ITTA, | ) |
| ) Court of Appeals No. A-9873 | |
| Appellant, | ) Trial Court No. 4FA-05-3200 CR |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2182 September 5, 2008 |
| ) | |
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Mark I. Wood,
Judge.
Appearances: George J. Dozier Jr., Eagle
River, for the Appellant. Kenneth M.
Rosenstein, 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.
COATS, Chief Judge.
Emanuel L. Itta was convicted of assault in the first
degree1 for participating in an assault that seriously injured
Ulak Hope Jr. Itta raises two issues on appeal.
Ittas first issue arises from the fact that, at trial,
the State asked permission to introduce evidence of Ittas other
assaultive conduct under Alaska Evidence Rule 404(b)(1). The
trial judge, Superior Court Judge Mark I. Wood, ruled (based on
the content of the States case-in-chief) that the probative value
of the proposed evidence was outweighed by its potential for
unfair prejudice, and thus it would not be admitted. However,
Judge Wood stated that if the defense presented a case, he might
have to re-evaluate the admissibility of this evidence, depending
on the content of the defense case.
Ittas attorney pressed Judge Wood for a firm ruling on
whether, if Itta testified that he acted in defense of others,
the judge would allow the State to introduce evidence of Ittas
prior assaultive conduct. Judge Wood repeated that, from what he
knew so far, he would [probably] preclude that evidence. But he
told the defense attorney, [U]ntil I hear what your client is
going to say, I cant be sure.
Itta did not present a defense, so Judge Wood made no
further ruling on the admissibility of the other-crimes evidence.
In this appeal, Itta argues that Judge Wood was obliged
to give him a definitive answer on the admissibility of the other-
crimes evidence before Itta decided whether to exercise his right
to testify. Itta asserts that Judge Wood infringed his right to
testify when the judge declared that his final answer on this
issue would depend on the content of the defense case thus
forcing Itta to make his decision whether to testify without
knowing the final resolution of this evidence question.
The State, relying on the Alaska Supreme Courts
decision in State v. Wickham2 and this courts decision in Sam v.
State,3 argues that Itta forfeited his right to pursue this issue
on appeal when he decided not to testify. But Wickham and Sam
are not directly on point.
Both Wickham and Sam involved instances where the trial
judge issued a firm ruling that the State would be allowed to
introduce certain impeachment evidence if the defendant took the
stand. Wickham and Sam hold that, if a defendant wishes to
appeal this type of ruling (i.e., an advance ruling regarding the
scope of impeachment), the defendant must take the stand and
suffer the impeachment.4
But in Ittas case, Judge Wood never ruled that the
States other-crimes evidence was admissible or would be
admissible if Itta took the stand. Although Itta argues on
appeal that Judge Wood should have ruled that the other-crimes
evidence would be inadmissible regardless of the content of Ittas
testimony, Ittas basic claim in this appeal is that he was
entitled to a firm answer on the admissibility of this evidence
regardless of whether that answer was yes or no before he made
his decision whether to testify.
This claim the assertion that Itta was entitled to
demand that Judge Wood issue a final ruling on this matter before
Itta made his decision whether to testify is preserved for
appeal. There is nothing speculative about this claim: Itta
contends that the error was Judge Woods refusal to make a final
ruling. He argues that a defendant is entitled to know a judges
final decision on the admissibility of evidence before the
defendant makes the decision whether to testify.
We therefore conclude that Itta is entitled to pursue
this claim on appeal. However, we reject Ittas claim on its
merits.
As this court has repeatedly explained in cases dealing
with Evidence Rule 404(b)(1), once the State has identified one
or more valid non-propensity purposes for the proposed other-
crimes evidence, the question then becomes one of balancing the
probative value of the evidence versus its potential for unfair
prejudice under Evidence Rule 403.5 And when a trial judge
assesses the probative value of the other-crimes evidence, the
judge can properly consider the importance of the evidence toward
impeachment of a witnesss testimony including the defendants own
testimony, if the defendant chooses to testify.6
As the Alaska Supreme Court explained forty years ago,
The general rule excludes evidence of prior
crimes in a criminal trial because the
[admission] of such evidence tends to
[produce] confusion of issues, unfair
surprise, and undue prejudice. But there are
exceptions to the rule. Such evidence may be
admissible when it is particularly probative
in showing such things as intent, an element
in the crime, malice, motive, a system of
criminal activity, ... or when the defendant
has testified and the state seeks to impeach
his credibility.[7]
Thus, even though Judge Wood had ruled (based on the
content of the States case-in-chief) that the States proposed
other-crimes evidence should not be admitted, it was proper for
Judge Wood to warn Itta that his ruling on this issue might
change, depending on the content of Ittas testimony because the
content of Ittas testimony might alter the balance between the
probative value of the evidence and its potential for unfair
prejudice.
Indeed, the rule that Itta proposes would create grave
problems. If trial judges were required to give a defendant
definitive rulings on these evidentiary matters before the
defendant made the decision whether to take the stand, and if the
defendants testimony truly altered the balance between the
probative value of the evidence and its potential for unfair
prejudice, then either the trial judge would be powerless to
amend the earlier ruling or the defendant could plausibly claim
that he was improperly enticed to take the stand.
For these reasons, we reject Ittas argument that a
trial judge must provide a definite and unalterable answer to the
admissibility of other-crimes evidence before a defendant chooses
whether to take the stand. Instead, we conclude that Judge Wood
acted properly and forthrightly when he informed Itta and the
defense attorney that his decision concerning the admissibility
of this evidence might change, depending on the content of Ittas
testimony.
Ittas remaining claim is that the State presented
insufficient corroboration of the testimony offered by his
accomplices.
The major evidence against Itta was the testimony of
the other participants in the assault. Alaska Statute 12.45.020
declares that a defendant may not be convicted based on the
testimony of an accomplice unless that testimony is corroborated
by other evidence that tends to connect the defendant with the
commission of the crime.
In Oxenberg v. State,8 the Alaska Supreme Court
interpreted this statute to require sufficient corroborative
evidence to induce in the minds of the jurors a rational belief
that the accomplice was speaking the truth when he implicated the
defendant in the criminal event.9
At Ittas trial, Fairbanks Police Officer David Elzey
testified that he interviewed Itta following the assault. Itta
told Officer Elzey that he was present when Hope was assaulted,
and he ultimately admitted participating in the assault by
hitting Hope in the chest. Trevor Britain also testified that
Itta admitted his participation in the assault. In addition, the
State presented evidence that the bottoms of Ittas shoes matched
footprints that the police found at the scene of the assault.
This evidence was sufficient to corroborate the accomplices
testimony that Itta was a participant in the assault.
Itta further contends that this corroborating evidence
was insufficient to show that he committed assault in the first
degree (as opposed to a lesser degree of assault). Itta argues
that, apart from the accomplice testimony, the evidence was
insufficient to show that he was criminally responsible for the
serious injuries that Hope suffered to his head and face. But as
we explained in Brown v. State,10 [t]here is no requirement
that every element of an offense testified to by an accomplice be
independently corroborated by other evidence.11 Rather, AS
12.45.020 requires only independent corroboration of the
defendants connect[ion] ... with the commission of the crime.
For these reasons, the judgment of the superior court
is AFFIRMED.
_______________________________
1 AS 11.41.200(a).
2 796 P.2d 1354 (Alaska 1990).
3 842 P.2d 596 (Alaska App. 1992).
4 Wickham, 796 P.2d at 1358; Sam, 842 P.2d at 599.
5 See, e.g., Kenison v. State, 107 P.3d 335, 344 (Alaska
App. 2005); Morrow v. State, 80 P.3d 262, 268 (Alaska App. 2003);
Beaudoin v. State, 57 P.3d 703, 707-08 (Alaska App. 2002).
6 Gargan v. State, 805 P.2d 998, 1003-04 (Alaska App. 1991)
(other-crimes evidence relevant to impeach a defendants testimony
as to a material issue). See also McIntyre v. State, 934 P.2d
770, 773 (Alaska App. 1997); Jansen v. State, 764 P.2d 308, 310-
11 (Alaska App. 1988); Moor v. State, 709 P.2d 498, 506-07
(Alaska App. 1985).
7 Mead v. State, 445 P.2d 229, 234 (Alaska 1968) (footnotes
omitted).
8 362 P.2d 893 (Alaska 1961).
9 Id. at 897.
10 693 P.2d 324 (Alaska App. 1984).
11 Id. at 329.
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