|
You can of the Alaska Court of Appeals opinions.
|
|
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
RICHARD FRANCIS HUNTER,
Court of Appeals No. A-10657
Appellant, Trial Court No. 3AN-06-12594 CR
v.
O P I N I O N
STATE OF ALASKA,
Appellee. No. 2398 - August 16, 2013
Appeal from the Superior Court, Third Judicial District,
Anchorage, Philip R. Volland, Judge.
Appearances: Brooke Berens, Assistant Public Advocate,
Appeals & Statewide Defense Section, Rachel Levitt, Acting
Public Advocate (opening brief), and Richard Allen, Public
Advocate (reply brief), Anchorage, for the Appellant. Terisia
Chleborad, Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and John J. Burns,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger,
Judges.
Judge MANNHEIMER.
Richard Francis Hunter appeals his convictions for second-degree murder
and tampering with evidence. At trial, the major issue was whether Hunter acted in self-
----------------------- Page 2-----------------------
defense. On appeal, the question is whether the superior court committed error when,
over Hunter's objection, the court allowed two police officers to testify concerning
Hunter's propensity for aggression and violence.
One of these officers testified that Hunter had a reputation as a violent
person. The second officer testified that, in his opinion, Hunter was an aggressive
person. But as we explain in this opinion, the record (even viewed in the light most
favorable to the government) does not show that the first officer met the foundational
requirements for offering testimony concerning Hunter's reputation. As to the second
officer, the trial judge failed to make a finding as to whether this officer's knowledge of
Hunter was sufficient to allow him to offer an opinion concerning Hunter's character.
Because Hunter's claim of self-defense was the major issue litigated at
Hunter's trial, we conclude that these evidentiary errors require us to reverse Hunter's
conviction on the murder count.
Underlying facts
At Hunter's trial, the State presented the testimony of Anchorage Police
Detective Pamela Perrenoud and the testimony of Anchorage Police Officer Jack Carson
concerning Hunter's character for violence and aggression.
Detective Perrenoud testified that, because she was the lead investigator in
the case, she looked into Hunter's background - and that, in the process of investigating
Hunter's background, she learned that Hunter possessed "the tendency towards violence
and aggression". Later in the trial, Officer Carson testified that, in his opinion, Hunter
was "a very aggressive person".
Before the testimony of these officers was presented to the jury, the trial
judge and the attorneys discussed the admissibility of the testimony, and the prosecutor
- 2 - 2398
----------------------- Page 3-----------------------
made offers of proof concerning the bases of both Perrenoud's and Carson's proposed
testimony.
The prosecutor acknowledged that Detective Perrenoud had never
personally encountered Hunter, and that Perrenoud's knowledge of Hunter and his
character was wholly obtained through her investigation into Hunter's criminal
background. According to the prosecutor's offer of proof, Perrenoud conducted this
investigation by "[speaking] with a number of other law enforcement officers", and by
"review[ing] a number of ... documents prepared by law enforcement officers". The
prosecutor told the court that Detective Perrenoud, through her examination of Hunter's
"plethora of contacts ... with law enforcement", either learned or inferred "that [Hunter]
has a reputation as being an aggressive or violent individual in the community".
With regard to Officer Carson's opinion of Hunter's character for
aggression, the prosecutor explained that Carson's opinion was based on a single
encounter: One night in August 2006, Hunter was walking along the street, intoxicated,
when he jumped out in front of Carson's patrol vehicle. Carson stopped his car and
chased Hunter on foot. According to the prosecutor's offer of proof,
[Carson is] trying to chase Hunter down, [and] they get into
a ... wrestling match on the ground, which culminates with
Mr. Hunter grabbing Officer Carson by the testicles, and not
releasing him despite being hit repeated times, until Officer
Carson has to take the extreme measure of actually stomping
on Mr. Hunter's head ... .
The prosecutor told the court that, "based on that [one] contact with Mr. Hunter", Carson
had "formed [the] opinion ... that Mr. Hunter was an assaultive individual".
With respect to Perrenoud's proposed testimony, Hunter's attorney raised
two objections: first, that the proposed testimony did not meet the foundational
- 3 - 2398
----------------------- Page 4-----------------------
requirements of Alaska Evidence Rule 405(a), and second, that Perrenoud had no
personal knowledge of Hunter's reputation.
Evidence Rule 405(a) declares that when evidence of a person's character
is admissible, a litigant may prove the person's character "by testimony as to [the
person's] reputation in any community or group in which the individual habitually
associated", or "by testimony in the form of opinion". Hunter's attorney argued that
Perrenoud's proposed testimony concerning Hunter's reputation within the law
enforcement community was not admissible under Rule 405(a) because Hunter was not
a member of the law enforcement community; that is, Hunter did not "habitually
associate" with law enforcement officers as a group.
When the trial judge asked the prosecutor to respond to this argument, the
prosecutor conceded that Hunter did not habitually associate with law enforcement
officers. However, the prosecutor declared that Perrenoud's testimony would not really
address Hunter's reputation within the law enforcement community. Rather, the
detective's testimony would describe Hunter's reputation "in the community of
Anchorage" at large - because the law enforcement officers whom Perrenoud polled
(to gather her information concerning Hunter's reputation) were, themselves, members
of the Anchorage general community.
In other words, the prosecutor argued that law enforcement officers were
members of the community at large, and thus a person's reputation among law
enforcement officers was the person's reputation within the community in general (even
though that reputation was derived from a small sample of the community).
The trial judge decided to allow Perrenoud to testify about Hunter's
reputation for aggression and violence, but not under the prosecutor's suggested
rationale. Rather, the trial judge concluded that police officers could properly testify
about "someone's reputation on the street" - i.e., someone's reputation within the
- 4 - 2398
----------------------- Page 5-----------------------
general community - because "it's a function of law enforcement", and "a necessary
[component] of their jobs", to formulate opinions about the propensity of various
individuals to be law-abiding or non-law-abiding.
Hunter's attorney raised a second objection to Perrenoud's proposed
testimony: he argued that it was improper for Perrenoud to testify about Hunter's
reputation in the community when Perrenoud's knowledge of this matter was based on
"reading police reports from other officers". Responding to the defense attorney's
objection, the trial judge ruled that this was a proper basis for Perrenoud to formulate her
knowledge of Hunter's reputation.
With regard to Officer Carson's proposed testimony concerning his opinion
that Hunter was an aggressive person, Hunter's attorney again objected on the ground
that the proposed testimony did not meet the foundational requirements of Alaska
Evidence Rule 405(a). Specifically, the defense attorney argued that a single meeting
or encounter did not provide a legally sufficient basis for the officer to offer an opinion
concerning Hunter's character under Evidence Rule 405(a). The trial judge rejected this
argument, ruling that the officer's opinion was admissible even if it was based on a single
instance or interaction.
Having rejected both of the defense attorney's objections, the trial judge
allowed the prosecutor to present evidence of Hunter's propensity for aggression and
violence through the testimony of the two officers.
Why we conclude that Detective Perrenoud should not have been allowed
to testify concerning Hunter's reputation for violence
On appeal, Hunter renews his argument that Perrenoud should not have
been permitted to testify about Hunter's reputation among the law enforcement
- 5 - 2398
----------------------- Page 6-----------------------
community, since Hunter was not a member of, nor did he "habitually associate" with,
the law enforcement community.
As we have just explained, when Hunter's attorney raised this objection in
the trial court, the prosecutor acknowledged that Hunter was not a member of the law
enforcement community, but the prosecutor attempted to circumvent this problem by
asserting that Hunter's reputation among law enforcement officers was, legally speaking,
the same as his reputation in the general community - since law enforcement officers
are members of the community at large. On appeal, the State again argues that
Perrenoud's testimony did not simply describe Hunter's reputation in the law enforce-
ment community, but rather described Hunter's reputation in the community at large -
although, this time, the State argues that the "community at large" included not only
Anchorage but also Bethel and the village of Emmonak.
More specifically, the State argues that Hunter's "plethora of contacts ...
with law enforcement" in Anchorage and Bethel presumably must have been based on,
or initiated because of, the personal observations of police officers and citizen-witnesses.
Therefore, the State argues, the existence of these police contacts creates a reasonable
inference that many people in these communities believed that Hunter was aggressive
and violent.
Based on this reasoning, the State asserts that when Perrenoud investigated
Hunter's history of police contacts, she was simultaneously acquainting herself with
Hunter's reputation for violence in the community at large - and she could therefore
testify about that reputation.
There are two flaws in the State's argument. First, the existence of police
reports concerning a person's acts of violence or aggression does not necessarily mean
that the community at large views that person as a generally violent or aggressive
individual. For the most part, the police are called only when there is trouble. Thus,
- 6 - 2398
----------------------- Page 7-----------------------
police reports concerning an individual may not necessarily reflect that person's normal
character, but rather only the instances where the person departed from their normal
character.
The second flaw, and the more important flaw, is that the State's argument
is inconsistent with the foundational requirements that had to be met if Perrenoud was
to testify about Hunter's reputation.
As the first paragraph of the Commentary to Alaska Evidence Rule 405(a)
explains, "The [required] foundation for [reputation] testimony comes in the form of
establishing that the witness has sufficient familiarity with the people in the community
so that he can make a valid attempt at assessing [the person's] reputation."
The Commentary then gives a fuller explanation of what is meant by
"sufficient familiarity with the people in the community" - by extensively quoting a law
review article written by Dean Mason Ladd of the University of Iowa Law School,
Techniques and Theory of Character Testimony, 24 Iowa Law Review 458, 513 (1939):
The object of the law in [allowing reputation evidence
to prove] character is to get the aggregate judgment of a
community rather than the personal opinion of the witness
which might be considered to be warped by his own feeling
or prejudice. [This] reputation must, to be admitted, be
general in a community rather than based upon a limited
class. While it is not necessary that a character witness know
what the majority of a neighborhood think of a person, he
must know of the general regard with which the party is
commonly held.
. . .
The requirement that the reputation be broadly general
rather than that of a particular group ... again emphasizes the
effort to get away from [a] secularized and consequently
biased estimate of character. ... The reputed character of a
- 7 - 2398
----------------------- Page 8-----------------------
person is created from the slow spreading influence of
community opinion[,] growing out of his behavior in the
society in which he moves and is known[,] and upon this
basis [reputation evidence] is accepted as proof of what his
character actually is.
The foregoing description of the foundational requirements for reputation testimony
suggests that Detective Perrenoud should not have been allowed to offer testimony
concerning Hunter's reputation.
Perrenoud derived her knowledge of Hunter's reputation solely by reading
police records and interviewing police employees. When the prosecutor made the
government's offer of proof in the superior court, the prosecutor conceded that Hunter
was not a member of the police community nor did Hunter habitually associate with that
community. Nevertheless, the prosecutor argued that because police officers are
themselves members of the community at large, Hunter's reputation among police
officers was tantamount to his reputation in the community at large.
But as the above-quoted commentary explains, when a party offers a
witness to testify about a person's reputation in a specified community, that witness must
know of the reputation that is "broadly" or "general[ly]" held in that specified
community, rather than the reputation that the person has among "a particular group"
within that community. This foundational requirement would seem to be most important
when the "particular group" - here, the law enforcement segment of the community -
encounters the person only under particular circumstances, or only upon the occurrence
of a particular kind of event.
This is not to say that police officers are uniformly precluded from offering
evidence of a person's reputation within a community. As the trial judge in Hunter's
case recognized, a police officer whose duty is to patrol a community, and who therefore
- 8 - 2398
----------------------- Page 9-----------------------
engages in a large number of conversations and interactions with members of that
community, might well have sufficient knowledge of the community reputation of
various individuals to offer testimony on that point.
The prosecutor at Hunter's trial asserted that Detective Perrenoud
investigated Hunter's reputation, not only by "review[ing] a number of ... documents
prepared by law enforcement officers", but also by "[speaking] with a number of other
law enforcement officers". Because Perrenoud apparently polled "a number of other ...
officers", it is conceivable that Perrenoud spoke to one or more officers who, themselves,
would have been qualified to offer testimony concerning Hunter's reputation in the
community.
But a witness does not become qualified to offer testimony concerning a
person's reputation simply by interviewing other people who, themselves, would be
qualified to offer testimony on this subject.
As Wigmore explains, the rule at common law was that character witnesses
had to reside in the community where the person's reputation was developed. Witnesses
did not become qualified to testify about a person's reputation "by a mere visit of
inquiry, or by a casual sojourn, or by a conversation with a resident who [was acquainted
with] the reputation". 1
Wigmore suggests, however, that this common-law rule is nowadays "too
strict", because it is now possible to conduct "organized investigation and research" into
people's attitudes and beliefs. 2
Given modern polling and research techniques, Wigmore
declares that "[s]ystematic inquiry by a person coming from outside will often be a better
1 John Henry Wigmore, Evidence in Trials at Common Law (Chadbourn revision,
1970), 692, Vol. 3, pp. 20-21.
2 Id. , 692, Vol. 3, p. 22.
- 9 - 2398
----------------------- Page 10-----------------------
source of knowledge than the casual opportunities of a neighbor or a friend [to gain
3
knowledge of a person's reputation]."
One court decision embodying Wigmore's suggested approach is State v.
Cross, 343 S.W.2d 20 (Mo. 1961). The Missouri court endorsed the general rule that
"[a] person possessing [an] acquaintance with the general reputation of the [person] in
the neighborhood or among the people with whom the [person] associates ... may testify
concerning [that] reputation." 4
The court then added that, at least potentially, a
reputation witness would not need to personally be a member of the same community:
[We do] not hold that a stranger-investigator may
never, under any circumstances, acquire the necessary
testimonial qualifications on the ... issue of [a person's]
reputation. On the contrary, we are of the view that an
investigation and inquiry made for the specific purpose of
discovering [a person's] reputation ... may extend over a
sufficient time, be broad enough in scope, and be otherwise
conducted in such a manner as to enable the investigator
reasonably to arrive at a probatively valuable conclusion as
to the manner in which [the] community regards [that
person].
Cross, 343 S.W.2d at 24.
However, even under this more relaxed, modern rule, courts should not
admit reputation testimony from witnesses like Detective Perrenoud - because, as
Wigmore cautions, courts should not allow an outside inquirer to testify about a person's
3 Ibid.
4 Cross, 343 S.W.2d at 23.
- 10 - 2398
----------------------- Page 11-----------------------
reputation "when the inquirer is a paid partisan agent who seeks evidence for one
purpose only". 5
Detective Perrenoud was obviously a "paid partisan agent" of the State.
And the way that Perrenoud conducted her investigation - i.e., her decision to research
Hunter's reputation solely by examining police records and interviewing police officers
- indicates that Perrenoud "[sought the] evidence for one purpose only". Perrenoud
could reasonably foresee that her sources were likely to provide accounts of Hunter's
worst behavior, and were unlikely to provide accounts of Hunter's acts of peacefulness
or law-abidingness.
The danger of allowing witnesses like Detective Perrenoud to testify about
a person's character was explained by an English court more than two centuries ago.
Here is what Lord Chief Justice Kenyon said in Mawson v. Hartsink , 4 Espinasse's Nisi
Prius Reports 102 (1802): 6
If this was allowed, when[ever] it was known that a
[particular] witness was likely to be called, it would be
possible for the opposite party to send round to persons who
had prejudices against [the witness] and from thence to form
an opinion ... which ... afterwards [would] be told in court to
destroy his credit.
This appears to be what happened in Hunter's case.
But despite this warning from so long ago, courts still encounter modern
variants of this practice. For example, in Hernandez v. State , 800 S.W.2d 523 (Tex.
Crim. App. 1990), the prosecution called two witnesses - a deputy constable and a
justice of the peace - to testify about the defendant's bad reputation with regard to
5 Ibid.
6 Quoted in Wigmore, 692, Vol. 3, p. 21.
- 11 - 2398
----------------------- Page 12-----------------------
peacefulness and law-abidingness. These two witnesses had no personal knowledge of
the defendant's reputation in the community. Rather, they claimed to have knowledge
of the defendant's reputation by virtue of their acquaintance with past police
investigations, and their receipt of complaints concerning the defendant's prior acts of
public intoxication and disorderly conduct. 7
The Texas Court of Criminal Appeals concluded that these two witnesses
should not have been allowed to testify. The court explained that
[t]he trustworthiness of reputation testimony stems from the
fact that a person is observed in his day[-]to[-]day activities
by other members of the community[,] and these observations
are discussed [within the community]. Over a period [of]
time[,] there is a synthesis of these observations and
discussions which results in ... the individual's reputation.
[But when testimony about] reputation is based solely on
specific [reported] acts, this synthesis is lost, as well as its
reliability.
. . .
Substantial familiarity with specific acts is not the same as
substantial familiarity with reputation.
Hernandez , 800 S.W.2d at 524.
Because the two witnesses in Hernandez did not directly ask community
members about Hernandez's reputation, but simply inferred that Hernandez must have
a bad reputation based on their prior investigations (as public officials) and their
discussions with community members concerning Hernandez's prior bad acts, the Texas
7 Hernandez , 800 S.W.2d at 524.
- 12 - 2398
----------------------- Page 13-----------------------
Court of Criminal Appeals held that "the witnesses were not competent to testify as to
[Hernandez's] reputation." 8
See also People v. Bingham , 394 N.E.2d 430, 437 (Ill. App. 1979)
("Community reputation testimony about a person must be based upon a witness's
knowledge [of that reputation] through association and contact with the person's friends
and neighbors."); Commonwealth v. United Food Corp., 374 N.E.2d 1331, 1336 (Mass.
1978) ("We agree that evidence of specific events, statements, or opinions may not be
used to prove reputation[.]"); Commonwealth v. Pilosky, 362 A.2d 253, 256 (Pa. App.
1976) (holding that the trial judge properly refused to admit the testimony of a private
investigator who was hired by the defense to investigate the victim's character: "There
was no [evidence] ... that [the investigator] could testify to [a] familiarity with or
personal knowledge of the victim's repute.").
The evidentiary foundation that the Texas court declared to be inadequate
in Hernandez is essentially the same foundation that the State offered for Detective
Perrenoud's testimony in Hunter's case. The prosecutor did not claim that Perrenoud's
knowledge of Hunter's reputation stemmed from her longstanding residence in, or
longstanding association with, the community in which Hunter resided. Rather, the
prosecutor declared that Perrenoud's knowledge of Hunter's reputation was based on her
examination of police files, and on her interviews with police officers.
As we explained earlier, it is conceivable that one or more of the police
officers that Perrenoud interviewed might have had sufficient personal knowledge of
Hunter's reputation in the community to testify about that reputation. As the trial judge
noted, police work often requires officers to associate themselves closely with a
community for a substantial period of time. As a result of this longstanding association,
8 Hernandez , 800 S.W.2d at 525.
- 13 - 2398
----------------------- Page 14-----------------------
an officer might acquire knowledge of various individuals' reputation within the general
community, and might become qualified to testify concerning those individuals'
reputation.
But Detective Perrenoud did not have sufficient knowledge of Hunter's
reputation within the community - even if we view the prosecutor's offer of proof in
the light most favorable to the State. Accordingly, we conclude that it was error for the
trial judge to allow Perrenoud to testify concerning Hunter's reputation for aggression
and violence.
Officer Carson's testimony that, in his opinion, Hunter was an aggressive
person
On appeal, Hunter renews his argument that Officer Carson should not have
been allowed to give his opinion of Hunter's character for aggression because Carson's
opinion was based on a single episode - a single interaction between the officer and
Hunter. In support of this argument, Hunter cites decisions from other states in which
appellate courts upheld trial court rulings that a single incident or interaction was not a
sufficient basis for a witness to offer an opinion concerning another person's
character. 9
But in these instances, the appellate courts did not hold that a single
incident or interaction could never be a sufficient basis to offer opinion testimony
concerning a person's character. Rather, these appellate courts upheld rulings by trial
judges that the particular incident or interaction offered in those cases did not furnish the
witness with a sufficient basis for evaluating the other person's character.
9 State v. Irby, 368 N.W.2d 19, 23 (Minn. App. 1985); State v. Maxwell, 18 P.3d 438,
444-45 (Or. App. 2001).
- 14 - 2398
----------------------- Page 15-----------------------
When a witness proposes to offer an opinion concerning another person's
trait of character, the law requires a foundational showing that the witness personally
knows the other person well enough to have formed a reliable opinion concerning the
particular character trait at issue. 10
As a practical matter, this foundational showing will
hinge on several factors - primarily, the nature of the relationship between the witness
and the other person, the length and recency of that relationship, and the frequency and
nature of their contacts.
Even a short acquaintance could conceivably form an adequate basis for an
opinion regarding another person's character, if that short acquaintance were marked by
striking occurrences or interactions which clearly demonstrate the character trait at
issue. 11
But in making this assessment, a trial judge must bear in mind that the ultimate
inquiry is the witness's ability to meaningfully judge the other person's character.
In this context, "character" means a "generalized description of [a person's]
disposition in respect to a general trait such as honesty, temperance, or peacefulness" -
"a person's tendency to act [in a particular manner] in all the varying situations of life".
Commentary to Alaska Evidence Rule 406, first paragraph. Thus, a person's underlying
character for truthfulness or untruthfulness, or a person's underlying character for
peacefulness or violence, must be distinguished from the person's individual acts that
demonstrate truthfulness or untruthfulness, or that demonstrate peacefulness or violence.
10 See Edward J. Imwinkelried et alia, Courtroom Criminal Evidence (4th edition, 2005),
804, Vol. 1, pp. 342-43; Edward J. Imwinkelried and Daniel D. Blinka, Criminal
Evidentiary Foundations (1997), chapter 6(b), p. 200; Clifford S. Fishman and Anne T.
McKenna, Jones on Evidence (7th edition, 1998), 16:22, Vol. 3, pp. 150-51.
11
See United States v. Watson , 669 F.2d 1374, 1382 (11th Cir. 1982); United States v.
Lollar , 606 F.2d 587, 589 (5th Cir. 1979).
- 15 - 2398
----------------------- Page 16-----------------------
A witness who has observed another person act peacefully or violently in
the past may still not know enough about the person to offer a meaningful opinion
concerning the person's underlying character for peacefulness or violence. As the
Oregon Court of Appeals has noted, "To hold otherwise would mean that the distinction
between character traits and individual misdeeds would be obliterated." 12
On the other
hand, it is at least conceivable that a single act might convincingly reveal a person's
character.
Here, the State offered proof of an interaction between Hunter and Officer
Carson that some people might consider sufficiently striking as to be illustrative of
Hunter's underlying character. However, when the trial judge made his ruling as to
whether Carson could offer an opinion about Hunter's character for aggression based on
this single encounter, the trial judge did not undertake the kind of analysis we have just
described. Rather, the trial judge declared that if Carson had, indeed, formed an opinion
about Hunter's character based on this single episode, then Carson should be permitted
to express that opinion - because Evidence Rule 405(a) allows opinion evidence
concerning a person's character. The judge added that it was up to Hunter's attorney to
cross-examine Carson if he wished to show that Carson's opinion was unsubstantiated
or based on inadequate information.
This was an abrogation of the judge's gate-keeping function. While Officer
Carson may have subjectively formed an opinion about Hunter's character based on their
one interaction, the trial judge was still required to determine, as a foundational matter,
whether this single act of violence was sufficient to allow Carson to meaningfully
evaluate Hunter's underlying character for aggression - Hunter's "tendency to act [with
aggression] in all the varying situations of life".
12 State v. Maxwell, 18 P.3d 438, 445 (Or. App. 2001).
- 16 - 2398
----------------------- Page 17-----------------------
Because the trial judge did not reach this foundational question, we are
unable to determine whether Carson should have been permitted to give the challenged
testimony. However, we need not address this matter further - because we conclude
that even if Carson's testimony was proper, the erroneous admission of Detective
Perrenoud's testimony concerning Hunter's reputation for violence and aggression
requires reversal of Hunter's murder conviction.
Why we conclude that the erroneous admission of Perrenoud's testimony
requires reversal of Hunter's murder conviction
The central issues litigated at trial were (1) whether Hunter acted in self-
defense and, if so, (2) whether the amount of force that Hunter used was reasonable.
Hunter took the stand and testified that he used deadly force against the deceased
because the deceased would not let Hunter out of his vehicle, and because the deceased
attacked Hunter with a utility knife. Aside from Hunter's testimony, the jury had limited
information about what happened inside the vehicle. In this context, the jury was likely
to give substantial weight to the testimony of the lead investigator, Detective Perrenoud,
that Hunter was known for possessing "the tendency towards violence and aggression".
We acknowledge that the jury also heard Officer Carson's testimony that,
in his opinion, Hunter was "a very aggressive person". But the impact of that testimony
was mitigated because the jury was told that Carson's opinion was based on a single
(unspecified) incident. And only Detective Perrenoud expressly informed the jury that
Hunter was known for his propensity for violence.
- 17 - 2398
----------------------- Page 18-----------------------
We conclude that there is a substantial likelihood that Perrenoud's
testimony appreciably affected the jury's decision on the murder charge, and we
accordingly order a new trial on that charge. 13
Whether the erroneous admission of Perrenoud's testimony requires
reversal of Hunter's evidence-tampering conviction
In addition to his conviction for second-degree murder, Hunter was also
convicted of evidence-tampering. The State alleged that Hunter committed this crime
when, following the homicide, Hunter threw his blood-covered jacket into the trash
outside the Alano Club.
In his brief to this Court, Hunter argues that the error in admitting the
reputation evidence requires the reversal of both of his convictions, but he does not
explain how the error in admitting the reputation testimony might have affected the
jury's verdict with respect to the evidence-tampering charge. The State likewise does
not address this issue in its brief.
Although Hunter's reputation for violence and aggression would seem to
have little relevance to the evidence-tampering charge, we hesitate to decide this issue
in the absence of meaningful briefing. Because our reversal of Hunter's murder
conviction means that we must return Hunter's case to the superior court, we conclude
that it would be better for Hunter to present whatever argument he may have on this
point to the superior court. 14
13 See Love v. State , 457 P.2d 622, 634 (Alaska 1969) (holding that the test for the
harmlessness of non-constitutional error is whether the appellate court "can fairly say that
the error did not appreciably affect the jury's verdict").
14 See, e.g., Johnson v. State , 268 P.3d 362, 369 (Alaska App. 2012).
- 18 - 2398
----------------------- Page 19-----------------------
Conclusion
Hunter's conviction for second-degree murder is REVERSED. The
superior court shall decide whether Hunter is also entitled to a new trial on the evidence-
tampering charge because of the improper admission of the reputation evidence.
- 19 - 2398
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
