Opinion
Court of Appeals No. A-10719 Trial Court No. 4BE-07-1443 Cr No. 5898
11-21-2012
KUVLELA ANDREW, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Jane B. Martinez, Anchorage, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Tamara E. de Lucia, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.
MEMORANDUM OPINION
Appeal from the Superior Court, Fourth Judicial District, Bethel,
Marvin C. Hamilton III, Judge.
Appearances: Jane B. Martinez, Anchorage, under contract with
the Public Defender Agency, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellant. Tamara E. de Lucia,
Assistant Attorney General, Office of Special Prosecutions and
Appeals, Anchorage, and Michael C. Geraghty, Attorney
General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger,
Judges.
MANNHEIMER, Judge.
Kuvlela Andrew appeals his conviction for third-degree assault. He argues that his trial judge committed error by allowing the prosecutor to introduce the prior written statements of three main government witnesses.
AS 11.41.220(a)(1)(B).
The charge against Andrew arose from an altercation in the village of Tuntutuliak in September 2007. Andrew's son, Michael, got into an argument with another man, Victor Parks. Parks taunted Michael and challenged him to come outside. Michael did go outside and confronted Parks — but before he did so, he telephoned his father (the defendant). Michael told his father that if he (Michael) did not call him back quickly, this would be because something had happened to him.
Upon receiving this phone call from his son, Kuvlela Andrew grabbed a whip rope and headed over to his son's residence. When Andrew arrived, he found his son fighting with Parks. The two men were on the ground, with Parks on top.
According to the State's evidence, Andrew placed the rope around Parks's neck and put his knee against Parks's back — pulling the rope tight and cutting off Parks's breath. Parks testified that he thought he was going to die. Just then, two village police officers — Charlie Steven and Wassillie Lupie — arrived on the scene. Seeing the officers, Andrew released the rope.
Andrew conceded that he placed the rope around Parks's neck, but he claimed that he had done so for only a moment — just long enough to pull Parks off of his son. In other words, Andrew asserted that he did not use the rope to strangle Parks.
Andrew's defense hinged, in large measure, on the assertion that the two village police officers (Steven and Lupie) had colluded with Parks to manufacture a story that misrepresented Andrew's actions. Both of the officers were related to Parks; indeed, Officer Steven was Parks's first cousin, and they lived in the same house.
Andrew presented evidence that, a few days after the altercation, the two officers and Parks got together and wrote out their narratives of the altercation. The three men completed these written statements before the state troopers arrived in the village to conduct the official investigation.
At trial, Andrew highlighted the relationship between the officers and Parks, and he suggested that the two officers slanted their accounts because of favoritism toward Parks.
Andrew also elicited testimony from Parks that, earlier in the day, Parks had sold liquor to his son Michael — an offense for which Parks was never charged. This testimony suggested that Parks might be slanting his testimony in favor of the prosecution in return for not being charged with this crime.
To rehabilitate the two officers and Parks, the prosecutor sought to introduce the written narratives that the three men had produced shortly after the altercation. The trial court granted the prosecutor's request and admitted the three narratives as prior consistent statements. The narratives were read to the jury, and the written documents themselves were admitted into evidence.
This is the ruling that Andrew challenges on appeal.
The law pertaining to the admissibility of a witness's prior consistent statement — and why we conclude that the admission of the three witnesses' prior written statements does not require reversal of Andrew's conviction
Under Alaska Evidence Rule 801(d)(1)(B), a witness's prior consistent statement is admissible (despite the normal rule against hearsay) if it is offered to rebut an express or implicit charge that the witness's trial testimony is a recent fabrication, or that the witness's testimony is the result of improper influence or motive. However, the proponent of this evidence must show (or, technically, must offer evidence sufficient to support a finding) that the witness's prior statement was made before the witness was subjected to, or operating under, the purported improper influence or motive.
Nitz v. State, 720 P.2d 55, 64 (Alaska App. 1986).
Here, the alleged motive or influence that potentially affected the testimony of these three witnesses arose from their pre-existing family ties. This means that the prosecutor could not show that the three witnesses' written narratives pre-dated this alleged improper motive or influence.
In such instances, Alaska law still gives a trial judge the authority to admit a witness's prior consistent statement if the judge concludes that the prior statement remains relevant to rebutting the charge of recent fabrication or improper influence, and if the judge further concludes that the probative value of the prior statement outweighs its potential for unfair prejudice. Nitz v. State, 720 P.2d 55, 67-68 (Alaska App. 1986).
However, when a witness's prior statement is admitted under this rationale, the judge must instruct the jury that the prior statement is admitted only to aid them in assessing the credibility of the witness's in-court testimony, and that the prior statement is not substantive evidence — i.e., the jurors can not treat the prior statement as independent evidence of any matter being litigated. Id. at 68.
Andrew argues that this second avenue of admissibility (i.e., the rule allowing admission of a witness's prior consistent statement even when the prior statement was made after the alleged improper motive or influence arose) applies only to cases involving the sexual abuse of minors.
It is true that the Nitz case — the case where we first announced this doctrine — was a sexual abuse of a minor case. Moreover, in Nitz, we framed the issue as "the extent to which evidence of prior consistent statements may be admitted to bolster the testimony of the victim in a case involving the sexual abuse of a child." Nitz, 720 P.2d at 58. And in Strumsky v. State, 69 P.2d 499, 503 (Alaska App. 2003), we characterized Nitz as "expand[ing] the scope of admissibility [of] prior consistent statements in cases involving sexual abuse of children."
But the actual discussion of this topic in Nitz is more generalized. In particular, when we defined the requirements for admitting evidence under this rationale, we did not use language restricting the rationale to cases involving the sexual abuse of a minor. See Nitz, 720 P.2d at 67-68.
Moreover, our subsequent cases have indicated that this kind of prior consistent statement is admissible in prosecutions for crimes other than sexual abuse of a minor. See Jonas v. State, 773 P.2d 960, 968 (Alaska App. 1989) (holding that a prior consistent statement made by an adult sexual assault victim was admissible to rehabilitate the victim's credibility, even though the statement was potentially made after the alleged motive to fabricate arose); Seek v. State, unpublished, 1998 WL 80112, at *4-5 (Alaska App. 1998) (indicating that the admission of this type of evidence would have been justified in a murder prosecution if the proponent of the evidence had shown that it had significant probative value); Evans v. State, unpublished, 1992 WL 12153166, at *2 n. 2 (Alaska App. 1992) (indicating that the admission of this type of evidence might have been justified in a bootlegging prosecution).
We need not resolve this issue in Andrew's case, for two independent reasons.
First, when the prosecutor offered evidence of the three witnesses' prior written statements, Andrew's attorney did not question the admissibility of testimony describing the witnesses' prior written statements. Instead, the defense attorney objected only to the admission of the witnesses' prior writings. That is, the defense attorney argued that, even though the witnesses were entitled to describe the content of their prior written statements, the prosecutor should not be allowed to introduce the written documents themselves.
(We acknowledge that the defense attorney also objected to Officer Steven's prior statement on the ground that not all aspects of Stevens's prior statement were "consistent" — i.e., not all parts of the prior statement related to subjects on which Steven had been impeached. However, the defense attorney conceded that various parts of the prior statement might be relevant responses to his cross-examination of Steven, and the defense attorney did not object to those parts of the statement.)
Hearsay is admissible unless another party objects. Thus, even if we assumed that the three written statements did not qualify for admission as prior consistent statements under the rubric of Nitz, the witnesses' testimony about their prior statements would be admissible if — as was true here — there was no hearsay objection.
See, e.g., Rusenstrom v. Rusenstrom, 981 P.2d 558, 560-61 (Alaska 1999); Bird v. Starkey, 914 P.2d 1246, 1248 n. 1 (Alaska 1996); Christian v. State, 276 P.3d 479, 489 (Alaska App. 2012); Savely v. State, 180 P.3d 961, 962 (Alaska App. 2008).
Second, we are convinced that any error in admitting these prior statements was harmless, because the challenged evidence had no appreciable affect on the jury's verdict.
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").
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As we have explained, Andrew contended that Parks and the two officers wrote their three statements in collusion, and that these witnesses misrepresented or shaded the truth in their statements because of their family ties. To the extent that the three challenged statements were consistent with each other, and were consistent with the three witnesses' trial testimony, Andrew could reasonably argue to the jury that this consistency supported his contention that the three witnesses were acting in concert to misrepresent the facts.
In other words, given the facts of this case, and given the way it was litigated, the admission of the witnesses' prior statements did not favor either the prosecution or the defense.
Conclusion
For the reasons explained here, the judgement of the superior court is AFFIRMED.