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Worthy v. State (4/14/00) sp-5259
Worthy v. State (4/14/00) sp-5259
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
CONRAD J. WORTHY, )
) Supreme Court No. S-8299
Petitioner, )
) Superior Court No.
v. ) 3AN-94-5757 CR
)
STATE OF ALASKA, ) O P I N I O N
)
Respondent. ) [No. 5259 - April 14, 2000]
______________________________)
Petition for Hearing from the Court of Appeals
of the State of Alaska, on Appeal from the Superior Court, Third
Judicial District, Anchorage,
Elaine M. Andrews, Judge.
Appearances: Christine S. Schleuss, Suddock &
Schleuss, Anchorage, for Petitioner. John A.
Scukanec, Assistant Attorney General, Office
of Special Prosecutions and Appeals, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for Respondent.
Before: Matthews, Chief Justice, Eastaugh and
Fabe, Justices. [Bryner and Carpeneti, Justices, not
participating.]
EASTAUGH, Justice.
FABE, Justice, dissenting.
I. INTRODUCTION
We reverse Conrad Worthy's conviction for second-degree
sexual assault and remand for retrial. Worthy should have been
permitted to introduce extrinsic evidence challenging the truth of
the complaining witness's allegation that another man had raped her
on a prior occasion, because her prior allegation was a crucial
part of the state's case against Worthy.
II. FACTS AND PROCEEDINGS
In July 1994 T.J.S. broke off her two-year romantic
relationship with Worthy. But they remained in contact, and
several weeks later T.J.S. agreed to dine with Worthy and another
couple. On their way home from dinner, Worthy told T.J.S. that he
wanted to stop at his office because he had been having computer
problems. Inside the office, Worthy and T.J.S. began to argue.
The argument became violent. The details are contested, but Worthy
admitted that he physically assaulted T.J.S. T.J.S. claimed that
Worthy also sexually assaulted her by digitally penetrating her.
Worthy eventually let T.J.S. go. She ran to a nearby
store and called the police. The police took her to a hospital,
where a medical examination revealed bruising and abrasion
consistent with her allegations of physical assault and digital
penetration.
The state indicted Worthy for first-degree sexual
assault, among other charges. At trial, the jury acquitted Worthy
of first-degree sexual assault, but found him guilty of the lesser
offense of second-degree sexual assault.
Worthy challenges two evidentiary rulings made by the
superior court. First, it excluded testimony tending to show that
T.J.S. had previously falsely alleged that another man had sexually
assaulted her on an earlier occasion. T.J.S. claimed that a co-
worker named Chris had sexually assaulted her in Barrow in April
1994 following a work-related party. T.J.S. reported the alleged
sexual assault to the Barrow police. The district attorney never
filed charges against Chris. At the time of the alleged Barrow
sexual assault, T.J.S. and Worthy were dating and she discussed the
incident with Worthy. Then, during the encounter between Worthy
and T.J.S., Worthy mentioned Chris. T.J.S. testified that Worthy
punctuated his sexual assault on her by telling her to "think of
[him] as Chris." [Fn. 1]
Before trial Worthy sought permission to call Chris to
testify that T.J.S. had falsely accused him of rape and that T.J.S.
had consented to have sex with him. The superior court refused to
permit the testimony.
In its opening statement at trial, the state referred to
the alleged Barrow rape and Worthy's comments regarding Chris
during the assault. T.J.S. also testified on direct examination
about the alleged Barrow rape and the trauma she claimed to have
suffered as a result. The superior court limited cross-
examination; the defense could discuss whether the sex was, in
fact, consensual, and could only point out that no criminal charge
resulted from the investigation.
Worthy argued before the court of appeals that the
superior court's ruling improperly restricted his right to litigate
the Barrow rape. Worthy maintained that once the prosecutor
asserted that a prior rape had really occurred, Worthy was entitled
to introduce evidence to prove that no rape had occurred.
The court of appeals rejected Worthy's argument,
determining that it was essentially irrelevant whether a rape had
actually occurred in Barrow. It noted that the Barrow episode was
only relevant to give context to what Worthy told T.J.S. during the
Anchorage incident.
Second, the superior court excluded expert testimony by
Dr. Susan LaGrande, a psychologist, about the effects of childhood
sexual assault upon an individual's response to and perception of
violent or upsetting non-sexual incidents. Worthy offered this
expert testimony on the eighth day of trial. The superior court
refused to allow this testimony because Worthy had not given timely
notice of his intention to call this expert, and because Worthy
failed to offer any foundational evidence to suggest that the
expert's theories applied to T.J.S.
The court of appeals did not consider the timeliness of
Worthy's notice because it agreed that Worthy failed to establish
the relevance of the expert's testimony.
Worthy petitions for hearing from the decision of the
court of appeals.
III. DISCUSSION
A. It Was Reversible Error to Reject Evidence that T.J.S.
Had Previously Made a False Allegation of Sexual Assault Against
Another Man.
The admissibility of evidence is largely within the trial
court's discretion and its rulings will not be overturned on appeal
absent an abuse of its discretion. [Fn. 2]
Worthy argues that the superior court erred in refusing
to permit extrinsic evidence that T.J.S. had falsely accused Chris
of sexual assault in Barrow. The state contends that the truth or
falsity of the Barrow rape is irrelevant here; the only relevant
evidence was that T.J.S. discussed the incident with Worthy and
that Worthy told T.J.S. during the assault to "think of [him] as
Chris."
As a general rule, contradictory evidence may not be
admitted if it relates to a collateral matter. If a matter is
considered collateral, the testimony of the witness on direct or
cross-examination stands -- the examiner must take the witness's
answer. [Fn. 3] If the matter is not collateral, extrinsic
evidence may be introduced disputing the witness's testimony on
direct or cross-examination.
There is no clear, bright-line demarcation between
collateral and non-collateral matters. In Davenport v. State, [Fn.
4] we adopted relevancy as the dividing line; we stated that "facts
which are relevant to the issues of the case [are not collateral]."
[Fn. 5] McCormick on Evidence [Fn. 6] elaborated on this
distinction: "the matter is non-collateral and extrinsic evidence
consequently admissible if the matter is itself relevant to a fact
of consequence on the historical merits of the case." [Fn. 7]
Is the truth or falsity of the Barrow rape relevant to
this matter? As a general rule, the prior sexual conduct of an
alleged sexual assault victim is not admissible. [Fn. 8] And the
court of appeals has discussed an independent rule providing that
an alleged victim's prior false allegations of sexual assault are
not admissible to discredit the victim's current allegations unless
the proponent of the evidence meets a threshold burden of
establishing the falsity of the past reports. [Fn. 9] But we need
not decide which of these two rules applies to Chris's testimony.
Because the state interjected the alleged Barrow rape into the case
and made its occurrence a central part of the case against Worthy,
the issue became independently relevant.
The state went much further than merely confining its
evidence concerning the Barrow event to what T.J.S. had told Worthy
about the incident and what Worthy had said to T.J.S. during the
assault in his office. [Fn. 10] The state took it as a given that
the Barrow incident had actually been a sexual assault. Worthy
contends that the prosecutor relied on that assumption
to generate sympathy for T.J.S. as a victim of
two rapes, to establish her as a truthful reporter of rapes, to
show her mental condition as a rape victim, and to portray
Mr. Worthy as a man so bad that he raped someone he knew was
particularly vulnerable because she had just been raped by someone
else.
We agree with Worthy's characterization of the prosecutor's
approach.
The state's trial references to the Barrow event had the
effect of elevating that incident to a level of importance it would
not normally have had.
We are guided here by our opinion in Davenport.
Davenport was prosecuted for receiving and concealing stolen
property. [Fn. 11] We approved of the prosecution's request to
introduce, for the purpose of impeaching Davenport's testimony that
he had never seen a certain gold cuff link before it was pawned,
testimony linking the cuff link with defendant's prior burglary
conviction. [Fn. 12] We reached this conclusion because the
proposed testimony "went to the essence of the critical
transaction," not to a mere collateral matter. [Fn. 13]
McCormick on Evidence recognizes this category of non-
collateral matters: "[A] part of the witness's story may be
attacked where as a matter of human experience, he could not be
mistaken about that fact if the thrust of his testimony on the
historical merits was true." [Fn. 14]
Chris's proposed testimony is similar to the testimony
allowed in Davenport and fits within the exception recognized by
McCormick on Evidence. The prosecution chose to use the Barrow
event to bolster T.J.S.'s credibility, generate sympathy for her,
and tarnish Worthy's image before the jury. The prosecution made
the truth of the Barrow rape a critical part of Worthy's assault on
T.J.S. For this reason, Worthy was entitled to litigate the truth
or falsity of T.J.S.'s Barrow rape report. It was an abuse of
discretion to exclude Chris's testimony.
We will not reverse a conviction based on an evidentiary
ruling if the error is harmless. [Fn. 15] Because the state made
T.J.S.'s testimony regarding the alleged Barrow event an integral
part of its case against Worthy, Chris's testimony might have
substantially affected the jury's verdict. Exclusion of this
evidence therefore requires reversal of Worthy's conviction and
remand for retrial.
Correctly noting that Worthy failed at trial to renew his
pretrial request to call Chris, the dissenting opinion reasons that
Worthy waived this argument. [Fn. 16] We decline to hold that
Worthy did not preserve the issue.
Our reluctance is partly procedural. The state did not
argue waiver in this court in its Brief of Respondent or at oral
argument [Fn. 17] and instead argued the merits of the substantive
issue. Had the state raised the waiver issue, Worthy might have
persuasively explained in reply or in oral argument why we should
not rely on waiver to avoid considering his ostensibly meritorious
substantive argument. We could raise the waiver issue sua sponte
at our discretion, but we are reluctant to do so where the state's
failure to raise the waiver issue was itself a waiver that
potentially prejudiced the opponent.
But our reluctance is mostly substantive. Under the
circumstances of this case, we are not convinced that Worthy was
required to do more than he did to preserve the issue. The
defense reasoned before trial that it was important to call Chris
to show that the Barrow accusation was false. That reason never
changed. Both before and after the state "opened the door" at
trial, the truth of T.J.S.'s Barrow accusation was fundamental to
the state's use of the incident. But the trial court had already
ruled that there would be no attack on the truth of the Barrow
accusation through testimony from Chris. Even after the state
"opened the door" at trial, the trial court maintained its
unwillingness to address the truth of the Barrow accusation. Given
the breadth of the trial court's pretrial ruling, and its repeated
assertions at trial that it was not going to allow the parties to
try the Barrow incident, there is no reason to think the trial
court would have reversed its pretrial ruling had Worthy renewed
his request.
Our refusal to raise a waiver issue sua sponte in this
case should not be taken to indicate that we are generally willing
to consider, absent plain error, appellate arguments not preserved
below. Rather, the specific facts of this case and the
countervailing preservation problem created by the state's failure
to raise the waiver issue lead us to conclude that we should not
avoid the substantive issue on a theory that it was not preserved
for appellate review.
B. Reversal Moots Any Error in Excluding Defendant's Expert
Witness.
Worthy argues that the superior court abused its
discretion by prohibiting his expert, Dr. LaGrande, from testifying
to rebut the prosecution's case-in-chief. [Fn. 18] The superior
court based its exclusion decision in part on the untimeliness of
Worthy's expert witness disclosure. [Fn. 19] Because the exclusion
of Chris's testimony requires reversal and remand for retrial, it
is not necessary to decide whether the court abused its discretion
in excluding Dr. LaGrande's testimony.
Assuming Worthy is retried, the superior court can
revisit the foundation issue in context of the evidence before it
at retrial. Worthy will also have an adequate opportunity to make
a timely expert witness disclosure before retrial. Because Dr.
LaGrande's testimony will necessarily require reference to T.J.S.'s
previous sexual conduct, AS 12.45.045(a) and Alaska Evidence Rule
404(a)(2) may affect the admissibility of Dr. LaGrande's testimony.
Alaska Evidence Rule 703 also potentially applies. And, as expert
testimony, it must meet the requirements of Alaska Evidence Rule
702 discussed in State v. Coon. [Fn. 20]
IV. CONCLUSION
We REVERSE Worthy's conviction for second-degree sexual
assault and REMAND for retrial.
FABE, Justice, dissenting.
The court bases its reversal of Conrad Worthy's
conviction on the fact that the State's references at trial to
"Chris" and the alleged Barrow rape incident "had the effect of
elevating that incident to a level of importance it would not
normally have had." [Fn. 1] Thus, according to the court, it was
the State's conduct during trial in asking questions and making
arguments about the Barrow rape that rendered Chris's testimony
about the falsity of that rape charge admissible. But the court
does not challenge the correctness of the trial judge's pretrial
decision to exclude Chris's testimony. And because Worthy never
renewed his request to call Chris as a witness during trial on the
ground that the State had "opened the door," the trial judge never
had an opportunity to consider the theory of admissibility now
relied on by the court. I therefore disagree with the court's view
that the trial judge committed any error in failing to allow Chris
to testify and would affirm the conviction.
In his pre-trial motion, Worthy requested permission to
call Chris to testify that T.J.S. had falsely accused him of rape
and that T.J.S. had consented to have sex with him. But, as the
court properly points out, AS 23.45.045(a) expressly forbids
evidence concerning the prior sexual conduct of an alleged sexual
assault victim. [Fn. 2] And as the court of appeals held in
Covington v. State, [Fn. 3] prior false allegations of sexual
assault are not admissible to discredit the victim's current
allegations unless the proponent of the evidence meets the
threshold burden of establishing the falsity of the past reports.
[Fn. 4] In Covington the court of appeals decided that such
evidence would only be permissible "where the charges somehow had
been disproved or where the witness had conceded their falsity."
[Fn. 5]
In this case, because Worthy's pre-trial offer of proof
did not meet the Covington standard, the superior court properly
denied his request to call Chris. And the court today does not
disagree that the superior court's Covington ruling was correct.
Thus, on the only occasion when Worthy did request permission to
call Chris -- before trial began and before the Barrow rape became
"independently relevant" [Fn. 6] -- the superior court properly
ruled to exclude such testimony. This pre-trial decision to
exclude Chris's testimony therefore cannot be a basis for reversal
on appeal.
The court excuses Worthy's failure to renew his request
to call Chris by reasoning that Worthy's theory of relevance "never
changed." [Fn. 7] But it is the State's conduct in making the
Barrow rape incident a "central part" of its case at trial that
forms the basis for the court's reversal of the conviction. [Fn. 8]
Because Worthy never made the argument upon which the court now
relies, the superior court had no opportunity to reconsider its
initial ruling on this theory of admissibility.
The court's opinion implies that because the State opened
the door to Chris's testimony, the trial judge should have revised
her order sua sponte and invited Worthy to call Chris as a witness.
But in the vast majority of trials, the judge will issue some form
of protective order precluding the introduction of certain
evidence. And it is not unusual for a party to render the
previously excluded evidence relevant and admissible by some action
of its own during trial. In my view it is not appropriate to hold
the trial court responsible for identifying new theories of
admissibility and pointing those theories out to the parties during
the course of a trial. Indeed, lawyers may have strategic reasons
for letting the opportunity to reargue a point pass.
I therefore believe that Worthy waived his argument that
the State improperly "opened the door" to the Barrow rape because
he did not specifically object to the State's conduct during trial
or renew his request to call Chris. And although the court
observes that the State did not argue waiver in this appeal, [Fn.
9] we can affirm on any grounds that are supported by the record.
[Fn. 10]
Moreover, in a case similar to the one before us, the
court of appeals properly affirmed the conviction of a defendant
who attempted to raise on appeal a new theory for admitting
evidence excluded at trial. In Dyer v. State, [Fn. 11] the
defendant initially sought to cross-examine a witness concerning
the witness's pending criminal charges in order to show bias. [Fn.
12] The court properly granted a protective order that prevented
the defendant from doing so. [Fn. 13] But on appeal the defendant
argued that he should have been able to introduce the pending
charges because the State "placed evidence of [the witness's]
character for peacefulness in issue." [Fn. 14] The defendant never
asserted those grounds for admitting the evidence in the trial
court, however, nor did he renew his request to cross-examine the
witness on the pending charges. The defendant only asked to use
the evidence to establish bias, a request that the trial court
properly denied. [Fn. 15] The court of appeals accordingly held
that "since no application was made to the trial judge on these
[new] grounds, we conclude that [the defendant] may not now argue
different grounds for admitting the evidence on appeal." [Fn. 16]
Similarly here, because Worthy never renewed his request to call
Chris under the theory that the prosecution had "opened the door,"
or that the Barrow rape incident had taken on "independent
relevance," he should not be allowed to argue those grounds for the
first time on appeal. [Fn. 17]
Because Worthy never renewed his request to call Chris as
a witness, the trial court had no opportunity to revisit the issue.
Although I do not disagree with the court that the State "opened
the door" to evidence of the victim's allegedly false report of the
Barrow rape, it was incumbent upon Worthy to renew his request to
call Chris. This court will reverse a decision only where the
court below commits some error, and in this case, the superior
court's only ruling on this matter was proper. In failing to
object to the State's conduct, Worthy did not give the trial court
an opportunity to remedy the State's conduct in opening the door to
details of the Barrow rape incident. [Fn. 18] For these reasons,
I disagree with the court's decision and would affirm the
conviction. APPENDIX
References to "Barrow Rape" by Prosecution
Prosecution's Opening Statement:
While Mr. Worthy is [sexually assaulting T.J.S.]. He
starts saying some very cruel things to her.
[T.J.S.], in April of 1994, was sexually assaulted by a
co-worker, while she was working for MarkAir in Barrow. It was a
difficult time for her. It was something that stayed with her. It
was something that she and Mr. Worthy had talked about. The person
that she believed had done that assault on her in Barrow, was a
fellow named Chris. [It] wasn't proven at any point in time. It
wasn't brought to this stage. But the person was named Chris.
And Mr. Worthy, as he sitting astride of this woman, or
lifting her up, he says, "Think of me as Chris. I think this is
what you wanted Chris to do up in Barrow."
He said things to her, to let her know how she ought to
feel about this circumstance that she found herself in.
"This is like what Chris did to you."
This is unpleasant to [T.J.S.]. This is hurtful to
[T.J.S.].
. . . .
And as things progress, you will also hear that Mr.
Worthy not only mentioned, brings up, uses this name of "Chris,"
and this incident in Barrow, as a means of, at least, verbally
assaulting, or somehow communicating what his intention is that
morning. He calls her a lot of other names.
. . . .
After she's been called a lot of names. Not necessarily
every name in the book, but she's been called a lot of names.
She's been scared by the cruel remarks about the former sexual
assault. She's concerned that he is so out of control, that she
doesn't know what he is going to do next.
. . . .
In April of '94, a terrible thing happened in Barrow.
She was sexually assaulted. It occurred after a party. It was a
terrible thing for her. She left the Barrow posting, and was
transferred to St. Mary's.
. . . .
After that [telephone conversation between T.J.S. and
Worthy following the assault], in which [Worthy] basically
says, "It wasn't me, it must have been this Brian guy. Maybe
it was Chris. Maybe it was the guy up north. You're havin' [sic]
a bad dream about all this stuff."
Prosecution's Direct Examination of Officer Kevin Bradley Mitchell:
[T.J.S.] said . . . And while [Worthy] was [sexually
assaulting her], she indicated to me that he had made statements to
the effect of -- while he was doing this he said, "Just think of me
as Chris."
[T.J.S.] had indicated at that point that she had been
sexually assaulted prior -- I'm not sure of the time frame, but I
believe it was about a year prior, at the place where she had
worked up in Barrow, and that incident was being criminally
investigated. But she had come back to Mr. Worthy, her boyfriend,
and told him about the incident, and told him what happened, and
apparently they had gone through some trauma of that.
And during that incident, while she was being held down
and he was inserting his fingers into her vagina, he was telling
her, "Just think of me as Chris. Just think of me as Chris," as he
was doing that.
Prosecution's Direct Examination of T.J.S.:
Q: You ended that Barrow posting when?
A: April.
Q: Why?
A: Because of an incident with another employee.
Q: Was this a fellow named Chris?
A: Yes.
Q: Was this an incident that was sexual in nature?
A: Yes.
Q: Against your will?
A: Yes.
Q: Investigated by the police?
A: Yes.
Q: You didn't want to work there anymore?
A: No.
Q: Did you continue to work for MarkAir?
A: Yes.
Q: In this incident that involved this fellow named Chris,
you said he was a co-worker?
A: Yes.
Q: Was this an incident that involved genital intercourse?
A: Yes.
Q: Any other kind of intercourse or penetration?
A: No.
. . . .
Q: You said you ended up somehow -- when you were over by
the copy machine, what happened?
A: Um, there was some struggle, I was on the floor on my
back, um, he was saying things. I was trying to tell him not to do
this . . . . He was still calling me cruel names, and about then is
when he started saying things like, "Think of me as Chris."
. . . .
Q: When your pantyhose were ripped, while you were on the
floor, you said he was saying things about, "Think of me as Chris?"
A: Yes.
Q: Chris was the fellow that you talked about in Barrow?
A: Yes.
Q: Did you talk to Mr. Worthy about Chris?
A: Yes.
Q: Had you communicated to Mr. Worthy that Chris was an
unpleasant memory for you?
A: Yes.
Q: How did you feel when Mr. Worthy said things like, "Think
of me as Chris?"
A: Very hurt.
. . . .
Q: At some point did he make actual contact with your
genitals?
A: Yes.
Q: How did that come about? Describe that for us?
A: He was holding me down saying the things about Chris, and
calling me cruel names, and he had basically, all of me pinned down
somehow.
. . . .
Q: Did Mr. Worthy say he wanted you to do anything during
this encounter?
A: To think of him as Chris; to use my [self-defense]
training. That's the only things I remember.
. . . .
Q: Why weren't you going to report the crime? (Pause)
A: Because -- because I didn't want to -- (pause) -- I
didn't really want -- I -- (pause) -- I didn't want to.
Q: Was there anything about your relationship with Mr.
Worthy that caused you not to want to?
A: I didn't want him to get into trouble.
. . . .
Q: Had you been through a police investigation in the past?
A: There -- at that point, there was still one going on in
Barrow.
Q: Was it a pleasant experience for you?
A: No.
Q: Was it something that you thought, "I'll go report this
crime, I'm looking forward to nailing him for this?"
A: No.
Q: So you called the police?
A: Yes.
Prosecution's Redirect Examination of T.J.S.:
Q: With regard to the Barrow incident, did you want to be
posted in Barrow?
A: Yes. I had been trying to get the position in Barrow for
a long time, and I had just started a new job in Anchorage, when I
got the news that I go it, I was really happy that I had gone out
there.
Q: So then we can understand, this happened after a party
with co-workers?
A: Yeah. The way that the shifts work, because we're eight
days on, six days off. There is one night that, basically,
everybody is there, and so we would get together on that night,
over at some friends house and have a couple drinks, and then go
home and go to sleep, and some of us would go to work the next day,
and some of us would fly back into town, or wherever we were going.
Q: What were you on? Were you going to work the next day,
or were you going home?
A: That was my shift, I was going to work.
Q: This fellow, whose name we now know is, Chris. Was he on
shift, or was he going home?
A: He was going home.
Q: Do you know when you left this party?
A: I know it was a few hours before everyone else, because
I couldn't get a ride at first. (indiscernible
unclear) finally said, "Okay, I'll leave and I'll take you home,"
probably around midnight, because I like to get enough sleep
before I go to work the next day, especially when I'm working a 10-
hour day.
Q: And so a few hours later, you are awakened from your
sleep?
A: Yes.
Q: Did you share a room with anybody?
A: No.
Q: And this fellow, did he admit to coming into your room?
A: He . . .
Ms. Tatter: Objection. Hearsay.
. . . .
Q: We were talking about what happened in Barrow in April of
1994. Did you tell Mr. Worthy about that?
A: Yes, I did.
Q: Did he know that you were making follow-up telephone
calls?
A: Yes, he did.
Q: Did he encourage you on that score?
A: Yeah, I think so.
Q: Did Mr. Worthy take you seriously about what had happened
up in Barrow?
(Pause)
A: Sometimes. Most of the time he didn't. Most of the time
he said that it was something that I caused -- something that I
tried to do.
Q: And [T.J.S.], did you tell Mr. Worthy that this was an
incident in which you did not consent?
A: Yes, I did.
Q: Did you tell Mr. Worthy, or communicate to Mr. Worthy in
any way, that this was some kind of drunken orgy?
A: No.
Q: During the reported conversation with this person named
Chris, did he admit being in your room?
A: During the wire he did.
Q: Did you engage in a telephone conversation that was
recorded by the police, with Mr. Worthy?
A: Yes, I did.
Prosecution's Closing Argument:
And then finally, ladies and gentlemen, the defendant
tells Detective Herrick that they talked about Chris from Barrow.
Ladies and gentlemen, this is a real interesting piece of
information. Why are we bringing up Chris from barrow if this is
not sexual in nature. Everything about Chris from Barrow is
sexual.
We hear from Sue Ellen Tatter in opening that they're
going to prove that this is a drunken orgy. What we heard from
Conrad Worthy was it was a very sad and humiliating and devastating
thing for both of them. And "I didn't really understand wasn't
pressing it, I didn't understand why she wasn't calling the cops
every day, calling the district attorney's office, pressing this
home, pressing this home." He wasn't being particularly sensitive
to [T.J.S.'s] needs in that situation, but we all acknowledge
beyond a shadow of a doubt that that was a sexual assault and he's
talking about this as he's doing these things to [T.J.S.].
Ladies and gentlemen, why bring up Chris if you're not
talking about sex. If we're not dealing with what the law calls
sexual penetration.
. . . .
He admits to Detective Herrick that she was defending
herself. He says that his fingers may have gone in her vagina.
And you, again, you get to decide whether that can happen
inadvertently, especially under the circumstances under which this
would admittedly perform. Because he said "I talked about Chris
from Barrow and that was a sexual matter."
FOOTNOTES
Footnote 1:
On appeal, Worthy does not dispute T.J.S.'s testimony or
characterization of his statements regarding Chris.
Footnote 2:
See Hawley v. State, 614 P.2d 1349, 1361 (Alaska 1980).
Footnote 3:
See Shane v. Rhines, 672 P.2d 895, 898 n.2 (Alaska 1983)
("[E]vidence which is offered to contradict a collateral matter is
inadmissible, whether or not the matter was brought out on
direct.").
Footnote 4:
519 P.2d 452 (Alaska 1974).
Footnote 5:
Id. at 455.
Footnote 6:
1 John W. Strong, ed., McCormick on Evidence (5th ed. 1999)
[hereinafter McCormick on Evidence].
Footnote 7:
Id. sec. 49, at 203 (footnote omitted).
Footnote 8:
See AS 12.45.045(a).
Footnote 9:
See Covington v. State, 703 P.2d 436, 442 (Alaska App. 1985),
modified on other grounds on reh'g, 711 P.2d 1183 (Alaska App.
1985). These threshold requirements have not been clearly
expressed. See id.; Johnson v. State, 889 P.2d 1076, 1078-79
(Alaska App. 1995).
Footnote 10:
See Appendix.
Footnote 11:
See Davenport, 519 P.2d at 453.
Footnote 12:
See id. at 455.
Footnote 13:
Id.
Footnote 14:
McCormick on Evidence at 203.
Footnote 15:
See Alaska R. Civ. P. 61 ("No error in the admission or the
exclusion of evidence . . . is ground for granting a new trial or
setting aside a verdict . . . unless refusal to take such action
appears to the court inconsistent with substantial justice.").
Footnote 16:
Dissent at 2-3.
Footnote 17:
Nor did the state argue waiver in its appellee brief before
the court of appeals or in its response to Worthy's petition for
hearing.
Footnote 18:
See Shepard v. State, 847 P.2d 75, 79 (Alaska App. 1993)
(vesting trial court with broad discretion to regulate admission of
expert testimony and reviewing decision to exclude expert testimony
for abuse of discretion).
Footnote 19:
Because Alaska Rule of Criminal Procedure 16(c)(4), which
requires the defense to provide notice of experts no later than
thirty days prior to trial, did not become effective until after
Worthy's trial, the question of what constituted timely notice was
committed to the trial court's discretion. See Supreme Court Order
No. 1191. Here, the superior court's pretrial order required the
defense to disclose its expert witnesses two weeks before trial.
Compliance with a pretrial order is required unless justice demands
otherwise. See Alaska R. Crim. P. 22(b) ("[W]hen entered [the
pretrial order] shall control the subsequent course of the
proceedings, unless modified at the trial to prevent manifest
injustice."). Worthy did not comply with the pretrial order as
entered.
Footnote 20:
974 P.2d 386 (Alaska 1999).
FOOTNOTES (Dissent)
Footnote 1:
Op. at 7.
Footnote 2:
See Op. at 6 (citing AS 12.45.045(a) ("In prosecutions for the
crimes of sexual assault in any degree, . . . evidence of the
complaining witness' previous sexual conduct may not be admitted
nor may reference be made to it in the presence of the jury. . .
.")).
Footnote 3:
703 P.2d 436, 442 (Alaska App. 1985).
Footnote 4:
See id.; Johnson v. State, 889 P.2d 1076, 1078 (Alaska App.
1995) (recognizing that "we have consistently held" that a party
who wishes to introduce evidence of past false reports of sexual
assault "bears the threshold burden of establishing the falsity of
the past reports").
Footnote 5:
Covington, 703 P.2d at 442.
Footnote 6:
Op. at 6.
Footnote 7:
Op. at 9.
Footnote 8:
Op. at 6.
Footnote 9:
See Op. at 9.
Footnote 10:
See Mackie v. Chizmar, 965 P.2d 1202, 1207 n.4 (Alaska 1998);
Dixon v. Dixon, 747 P.2d 1169, 1175 n.5 (Alaska 1987).
Footnote 11:
666 P.2d 438 (Alaska App. 1983).
Footnote 12:
See id. at 450.
Footnote 13:
See id.
Footnote 14:
Id.
Footnote 15:
See id.
Footnote 16:
Id. at 451; see also Jones v. State, 576 P.2d 997, 1001
(Alaska 1978) ("Having specified a particular purpose for the
offer, Jones is not in a position to now claim error because the
evidence might have been admissible on other grounds.").
Footnote 17:
See, e.g., Trobough v. French, [Fn. 1] 803 P.2d 384, 385
(Alaska 1990) (where a litigant failed to object to her adversary's
conduct during trial and never requested a mistrial, the trial
court abused its discretion in granting the new trial because the
plaintiff did not "formally object to the questioned acts at the
time they were committed" [Fn. 2]); Moss v. State, 620 P.2d 674,
677 (Alaska 1980) (holding that it was "incumbent upon counsel to
renew his attempt to obtain the witness' testimony," and that by
failing to do so, defendant waived his request); Petersen v. State,
838 P.2d 812, 816 (Alaska App. 1992) (Bryner, C.J.) (because
defendant failed to renew his request for severance, the trial
court's failure to order severance sua sponte did not amount to
plain error).
Footnote 18:
The purpose of the rule requiring parties to object formally
to errors during trial is "to facilitate the administration of
justice by permitting the trial judge to obviate any error that
might otherwise occur if no objection were made, by permitting him
to correct at the earliest possible time any error that may have
occurred, and by allowing the adverse party the opportunity to
remedy, if possible, any defect in his method of proof." Harned v.
Dura Corp., 665 P.2d 5, 9 n.11 (quoting Thomson v. Wheeler Constr.
Co., 385 P.2d 111, 115 (Alaska 1963)); see also Williams v. State,
629 P.2d 54, 59 (Alaska 1981) (purpose is "to require errors to be
brought to the attention of the trial court in time for their
correction so as to avoid the inconvenience and expense of a new
trial") (quoting Dimmick v. State, 449 P.2d 774, 776 (Alaska
1969)).
