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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
| BRADLEY PROCTOR, | ) |
| ) Court of Appeals No. A-10112 | |
| Appellant, | ) Trial Court No. 3AN-05-11802 CR |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) |
| ) No. 2270 July 23, 2010 | |
Appeal from the
Superior Court, Third Judicial District,
Anchorage, John Suddock, Judge.
Appearances: Beth G. L. Trimmer, Assistant
Public Advocate, and Rachel Levitt, Public
Advocate, Anchorage, for the Appellant.
Terisia K. Chleborad, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Richard A. Svobodny,
Acting Attorney General, Juneau, for the
Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Bolger, Judges.
BOLGER, Judge.
Bradley Proctor was convicted of two counts of assault
after a jury trial in which he claimed self-defense. On appeal,
Proctor argues that the trial judge should not have admitted
testimony about his reputation for violence in prison. We
conclude the judge could reasonably conclude that the prison
population was a group with whom Proctor habitually associated
and that the admission of this evidence did not violate Proctors
right to cross-examination.
Proctor also contends that the judge should not have
allowed one alleged victim to testify using diagrams she prepared
after she was present for the other victims testimony. We
conclude that the judge was not required to exclude the testimony
of the alleged victim or limit her use of these diagrams.
Background
Sharon Lamar and Jennifer Putnam lived together in an
apartment near Bradley Proctor. Both women are deaf and
communicate using sign language.
On December 11, 2005, Proctor and Putnam went to two
bars, then returned to Proctors apartment, where they used
cocaine. Lamar testified that she went to Proctors apartment to
urge Putnam to come home. Proctor convinced Lamar to purchase
some cocaine for him. Lamar returned with the cocaine, but
Proctor became angry, saying that it tasted like soap. Lamar
tried to calm Proctor down, but he hit her in the mouth. Putnam
then tried to separate the two, and Proctor broke her nose.
Proctor told the women to clean up the blood, but Putnams nose
continued to bleed.
Lamar testified that Proctor locked the front door and
moved a chair against the door to keep them from leaving. When
Lamar tried to call for help, Proctor started kicking her face
and body. At one point, Proctor held both women in choke holds
until Putnam passed out.
In his defense, Proctor gave a different version of
the events. He testified that Lamar came to the apartment and
tried to get Putnam to come home. Lamar became so loud that
Proctor asked her to leave. But Lamar returned, kicked in the
door, and then grabbed a steak knife and attacked Proctor.
Proctor testified that while he was trying to defend himself,
Putnam began hitting him with a small coffee table, and he
backhanded her in the nose.
Troy Hall, Proctors neighbor, testified that he was
awakened by loud banging sounds. Hall recognized Proctors voice
repeatedly yelling Do you want to die? Hall also heard another
voice, muffled but screaming No, no, please stop, no, no, no.
Hall banged on Proctors door and Proctor came out yelling
incoherently. While Hall was calling the police, one woman came
crawling out of Proctors apartment. Proctor stomped on her back
and began slamming her head into the entryway floor. Then a
second woman came out of Proctors apartment and fell down.
When the police arrived, the women were bloody and
laying face down in the snow. Lamar and Putnam were taken to the
hospital and Proctor was taken into custody.
Proctors charges included first-, second-, and third-
degree assault of Lamar,1 and first- and second-degree assault of
Putnam.2 The jury found Proctor not guilty of the assaults
against Putnam and not guilty of the first-degree assault of
Lamar, but they convicted Proctor of second- and third-degree
assaults against Lamar.
At sentencing, Superior Court Judge John Suddock
rejected Proctors proposed mitigating factor, and sentenced him
to 10 years imprisonment. Proctor now appeals.
The Trial Court Did Not Abuse its Discretion by Allowing
Two Correctional
Officers to Testify About Proctors Reputation.
Midway through the presentation of the States case,
Proctors attorney advised the court that the State intended to
call correctional officers to testify about Proctors propensity
for violence. Defense counsel objected to this proposed
testimony, which would be based on four or five incidents in
which Proctor had been punished for assault or fighting during
his incarceration prior to trial. The attorney also requested a
short continuance so that he could prepare his cross-examination
of the officers. In response, Judge Suddock ordered the State to
make the officers available for an interview with Proctors
attorney.
Proctor objected again before the officers were called
to the stand on the basis that the officers did not have a proper
knowledge of Proctors reputation when he was out of custody. He
argued that prison is a unique atmosphere and that the officers
knowledge of Proctors conduct in custody would not be an accurate
foundation for testimony about his reputation.
The judge stated that he understood Proctor to be
arguing that opinion testimony by a prison official is never
admissible because people behave differently in prison. The
judge overruled this objection, explaining that Proctor could
explore the witnesses limited knowledge on cross-examination.
Proctor argued that cross-examination would necessarily reveal
the prejudicial information that he had been incarcerated prior
to his trial. But he did not raise any other objections to the
foundation for the officers testimony.
The testimony was very brief. Each officer testified
that he knew Proctor (without specifying the basis for that
acquaintance), and that Proctor had a tendency to be violent.
On appeal, Proctor again argues that the testimony of
the correctional officers should not have been admitted as
evidence of his reputation. We review the trial courts decision
to admit this evidence for an abuse of discretion.3
Because Proctor raised the issue of self-defense, the
State was allowed to introduce evidence of his character for
violence under Alaska Evidence Rule 404(a)(2): [E]vidence of a
relevant character trait of an accused is admissible to rebut
evidence that the victim was the first aggressor. Thus, although
character evidence is generally inadmissible, such evidence was
admissible in this case to rebut Proctors testimony that Lamar
was the first aggressor.
Evidence Rule 405 provides:
In all cases in which evidence of character
or a trait of character of a person is
admissible, proof may be made by testimony
as to reputation in any community or group
in which the individual habitually
associated or by testimony in the form of an
opinion.
Accordingly, the State was entitled to introduce evidence of
Proctors reputation in any community or group in which he
habitually associated to rebut Proctors claim that Lamar was the
first aggressor.
Evidence Rule 405 allows a broader scope of reputation
evidence than the corresponding federal rule. The Commentary to
Rule 405 explains:
The Federal Rule, on which this Rule is
modeled, does not indicate the scope of
reputation evidence. This rule fills a gap
left in the Federal Rule by clearly stating
that reputation evidence is not confined to
the community in which the defendant lives;
reputation where the defendant works, goes to
school or in a group with whom the defendant
habitually associates will suffice.[4]
Accordingly, even assuming that a correctional facility cannot
properly be considered a community, the correctional officers
testimony would still be admissible if related to Proctors
reputation among a group with whom he habitually associated.
Cases from other jurisdictions reach differing
conclusions on whether a correctional facility is an appropriate
community for the purpose of reputation evidence. In 1876, the
New York Court of Appeals held that it was permissible to allow
witnesses to testify about a decedents good reputation in
prison.5 The court explained:
It matters not that the witnesses had only
known the deceased in the prison; ... a man
can have a general character there as well as
elsewhere; and it is just as competent for
witnesses to speak of that character there
where they have become acquainted with it, as
at any other place.[6]
A hundred years later, the court continued to follow this
reasoning, stating that [a] reputation may grow wherever an
individuals associations are of such quantity and quality as to
permit him to be personally observed by a sufficient number of
individuals to give reasonable assurance of reliability.7
The Oregon Court of Appeals also followed similar
reasoning, noting:
Under the current trend of the law, the
question is not whether the county jail was
the defendants community in the restricted
sense of his place of residence, but rather
whether defendants reputation was general and
established in a substantial community of
people so that general reputation evidence
obtained from that source would, in the
judgment of the trial court, provide
trustworthy evidence of defendants general
reputation for truth and veracity.[8]
The court concluded that the fact that the community was located
in a county jail does not render the evidence of defendants
reputation there inadmissible as a matter of law.9
The Texas Court of Appeals has also held that a
correctional center could be recognized as a community for
purposes of reputation evidence.10 But the supreme courts of
Florida and Washington have determined that correctional
facilities are not sufficiently neutral or sufficiently
generalized to be recognized as communities.11 And the Oklahoma
Court of Criminal Appeals concluded that the population of a
county jail was too transient to be recognized as a community.12
In summary, some courts have allowed evidence of an
individuals reputation in prison, even under the narrower
requirement that the evidence must refer to the reputation in a
particular community, and some courts have not. However, the
scope of Alaska Evidence Rule 405 is broader than the rules
applied in those cases because the Alaska rule allows evidence of
a persons reputation not only within a community, but also within
any group with whom the defendant habitually associates. A
reasonable judge could, therefore, conclude that a prison
satisfies the broader Alaska rule: a prison population could be
a group with whom a prisoner habitually associates. We conclude
that the trial judge in this case did not abuse his discretion
when he allowed the prosecution to present character evidence
based on Proctors reputation in prison.
Proctors Right to Confrontation Was Not Violated by
Allowing the Correctional Officers to Testify.
The judge explained that Proctor could use cross-
examination to show that the officers knowledge of Proctors
reputation was limited to his reputation in prison. Proctor now
argues that he was denied the right to confront the officers
because he could not cross-examine them about their knowledge of
his reputation without revealing to the jury that he was
incarcerated. Proctor raises this confrontation issue for the
first time in this appeal, so we review the issue for plain
error.13
The federal and state constitutions guarantee the
defendant in a criminal case the right to confront the witnesses
against him.14 The right to confrontation is violated when a
trial court unduly restricts a defendants cross-examination of a
witness.15
Proctor argues that his right to confrontation was
violated because he was unable to meaningfully cross-examine the
correctional officers without revealing to the jury that he was
incarcerated before trial. He relies on two Alaska cases to
support his argument. In the first case, the trial court ordered
that a defendant could not question another suspects wife about
her husbands statement admitting that the husband committed the
murder (based on the marital communications privilege).16 The
supreme court held that when conflict is found between the
constitutional right of confrontation and the exercise of a
privilege based on public policy, the constitutional right must
control.17
In the second case, the defendant was accused of
molesting a foster child.18 The trial court barred the defendant
from suggesting that he told the victim that she would no longer
be allowed to stay in his home because she had molested another
child.19 This court reversed the conviction, explaining that
this restriction on the cross-examination prevented the defendant
from showing that the victim had a motive to fabricate her
claims.20
Both of these cases involved an actual restraint on
the defendants ability to cross-examine a witness. But in
Proctors case, there was no such restraint imposed by the trial
court. Proctor was given the opportunity to cross-examine the
officers, and the extent to which he cross-examined them was a
tactical decision. As the trial court explained:
At the end of the day, its not the State
thats making the call about whether its more
advantageous than disadvantageous to cross-
examine on the circumstances. Thats you.
You have the choice whether or not you think
it advantages you on balance to go into that.
I agree, its a difficult choice. Its a trade-
off of values, but thats a dilemma that your
client has put you into by his conduct.
Because his decision to forego a more thorough cross-
examination of the officers was a tactical decision, Proctor
cannot show that the trial court committed a plain error.
Proctors Due Process Rights Were Not Violated by Lamars
Testimony.
Proctor argues that his due process rights were
violated when Lamar was allowed to testify with diagrams she
created after she observed Putnams testimony. When Lamar
testified at trial, she relied on diagrams she drew that showed
the layout of Proctors apartment and chronologically depicted the
conduct of Proctor, Putnam, and Lamar. Defense counsel objected
to the diagrams on the basis that Lamar had created them after
she was present for Putnams testimony. The trial judge overruled
the objection and the drawings were admitted into evidence.
The Alaska Constitution provides that crime victims
have the right to be present at all criminal or juvenile
proceedings where the accused has the right to be present.21 But
Proctor argues that due process may be implicated when an
unsequestered witness tailors her testimony to corroborate the
testimony of a previous witness. Proctor cites two cases for
this proposition.
In the first case, the Ninth Circuit noted that
[n]either this court nor the Supreme Court has ever held that the
failure to exclude witnesses can violate due process.22 The
court concluded that it was not required to decide whether the
failure to exclude witnesses may be a due process violation
because there was no evidence that the decision had adversely
affected the defendants trial.23 In other words, the Ninth
Circuit expressly stated that it was not resolving the question
that Proctor raises.
In the second case that Proctor relies on, the
petitioners argued that the tax court erred in failing to
sequester witnesses pursuant to Federal Evidence Rule 615, which
requires the court to exclude witnesses when they are not
testifying.24 The Sixth Circuit concluded that the petitioners
had failed to show that the judges error harmed their case
because there was no evidence that the witnesses had tailored
their testimony other than the fact that the witnesses had heard
the previous testimony.25 This case does not suggest that
failure to exclude a witness implicates a partys due process
rights.
This court has previously recognized that the Due
Process Clauses of the state and federal constitutions do not
grant a general right to exclude witnesses from the courtroom
during the testimony of other witnesses.26 Moreover, Article I,
Section 24 of the Alaska Constitution expressly grants crime
victims the right to ... be allowed to be present at all criminal
or juvenile proceedings where the accused has the right to be
present. We accordingly hold that a trial judge may allow the
victim of an alleged crime to remain in the courtroom while other
witnesses are testifying (even though the victim has not yet
testified), as long as the defendant is allowed to cross-examine
the victim regarding any potential influence on the victims
testimony.
In Proctors case, Judge Suddock could reasonably
conclude that Lamar should be allowed to testify and to offer the
diagrams that she prepared, even though she was present in the
courtroom when Putnam testified.
Proctor Did Not Establish That He Committed This Offense
Under Duress.
Proctor proposed a mitigating factor, contending that
he committed the offense under some degree of duress, coercion,
threat, or compulsion insufficient to constitute a complete
defense, but that significantly affected [his] conduct.27
Proctor noted that he was convicted for the conduct that
occurred while Lamar was attempting to leave his apartment.
Proctors theory was that he continued to kick Lamar in the
hallway because he believed she was trying to access a knife in
her belt. Proctor pointed to the fact that a knife was recovered
from Lamar as she was put into an ambulance.
Judge Suddock rejected this argument, explaining that
the mitigator did not apply because Proctor had not shown by
clear and convincing evidence that this [case] involved a self
defense component. Explaining his sentencing rationale, the
judge stated:
I find no evidence, and I do not believe,
that this was a self defense case. I think
this was a case brought about by blinding,
impetuous rage on the part of Mr. Proctor
over some real or imagined provocation that
he perceived at that time, and he decided
that it was an appropriate time to give a
couple of smaller and relatively defenseless
women a very thorough beating over a period
of time.
Proctor argues that the judges comment that the case
[was] brought about by blinding, impetuous rage on the part of
Mr. Proctor over some real or imagined provocation was a finding
that Proctor was provoked. Proctor argues that the mitigating
factor was established by this comment because the legislature
intended that AS 12.55.155 (d)(3) be read broadly.28 We review
the superior courts factual findings for clear error and
independently assess whether these facts establish this
mitigating factor.29
In order for a defendant to establish the mitigating
factor that he acted under compulsion, the compulsion must be of
a sufficiently extraordinary nature that it approaches being a
defense to the crime.30 But when we read Judge Suddocks comment
in context, it is apparent that he was explaining that this was
not a self-defense case and that there was no justification for
the attack. Judge Suddocks findings are not clearly erroneous,
and we agree with his conclusion that Proctor did not establish
that he committed this offense under duress or coercion.
Conclusion
We AFFIRM the superior courts judgment and sentence.
_______________________________
1 AS 11.41.200(a)(1)(3); AS 11.41.210(a)(2); and AS
11.41.220(a)(1)(B).
2 AS 11.41.200(a)(1)(3); AS 11.41.210(a)(2).
3 See Hawley v. State, 614 P.2d 1349, 1361 (Alaska 1980).
4 Commentary to Alaska Evid. R. 405, p. 508 (2009-10)
(internal citations omitted).
5 Thomas v. People, 67 N.Y. 218 (N.Y. 1876).
6 Id. at 224.
7 People v. Bouton, 405 N.E.2d 699, 704 (N.Y. 1980) (citing
5 Wigmore on Evidence, 1616 (Chadbourn rev., 1974)).
8 State v. Miller, 628 P.2d 444, 448 (Or. App. 1981).
9 Id.
10 Palmer v. State, 716 S.W.2d 174, 176 (Tex. Crim. App.
1986).
11 Parker v. State, 458 So. 2d 750, 753-54 (Fla. 1984);
State v. Lord, 822 P.2d 177 (Wash. 1991) (citing Parker, 458 So.
2d at 753-54).
12 Ferguson v. State, 675 P.2d 1023, 1027 (Okla. Crim.
App. 1984).
13 See Clark v. State, 953 P.2d 159, 165 (Alaska App.
1998).
14 See Davis v. Alaska, 415 U.S. 308, 315-16, 94 S. Ct.
1105, 1110, 39 L. Ed. 2d 347 (1974); Stumpf v. State, 749 P.2d
880, 900-01 (Alaska App. 1988).
15 See Davis, 415 U.S. at 315-19, 94 S. Ct. at 1110-12.
16 Salazar v. State, 559 P.2d 66, 76-78 (Alaska 1976).
17 Id. at 79.
18 Daniels v. State, 767 P.2d 1163, 1164 (Alaska App.
1989).
19 Id. at 1165.
20 Id. at 1166-67.
21 Alaska Const. art 1, 24. Alaska Evidence Rule 615(4)
provides a corresponding exception to the rule on exclusion of
witnesses for the victim of the alleged crime ... during criminal
... proceedings when the accused has the right to be present.
22 Larson v. Palmateer, 515 F.3d 1057, 1065 (9th Cir.
2008).
23 Id.
24 William L. Comer Family Equity Pure Trust v. Commr of
Internal Revenue, 958 F.2d 136, 140 (6th Cir. 1992).
25 Id. at 141.
26 Landon v. State, Memorandum Opinion and Judgment No.
3975 (Alaska App., Feb. 3, 1999), 1999 WL 46543, *2 (internal
citations omitted).
27 AS 12.55.155(d)(3).
28 See Bell v. State, 658 P.2d 787, 791 (Alaska 1983)
(Evidence the defendant in good faith subjectively believed facts
which if true would have established one of the defenses
justifying his conduct under the revised code ... may warrant
mitigation of a presumptive sentence.).
29 See Michael v. State, 115 P.3d 517, 519 (Alaska 2005).
30 Bynum v. State, 708 P.2d 1293, 1294 (Alaska App. 1985).
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