Opinion
Court of Appeals No. A-9055.
May 17, 2006.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Mark I. Wood, Judge. Trial Court No. 4FA-03-4006 CR.
William R. Satterberg, Jr., Fairbanks, for the Appellant.
Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Randolph C. Joseph appeals his conviction for first-degree murder for the killing of his girlfriend, Doris Folger. On appeal, Joseph argues that the police violated his Miranda rights in obtaining his statement; the State presented inadmissible hearsay testimony of Folger's statements about their relationship; the State presented unduly prejudicial autopsy photographs; the State presented improper expert testimony from a police officer about her interrogation methods; a police officer impermissibly commented upon Joseph's exercise of his right to remain silent; and the prosecutor engaged in an unduly inflammatory final argument. We find no merit to Joseph's contentions and affirm his conviction.
AS 11.41.100(a)(1)(A).
Factual and procedural background
In October of 2003, Randolph Joseph and Doris Folger were living together in the village of Rampart, Alaska. On October 26, 2003, Joseph and Folger were drinking at the home of their neighbors, Kathryn McGinty and Michael ("Ike") Mayo. Around 10:00 p.m., Joseph and Folger left their friends and returned to Joseph's mother's cabin where they were house sitting.
Shortly before midnight, Joseph called Mayo and asked him to come over because something was wrong with Folger. Mayo drove over and found Folger dead on the floor of the cabin.
Mayo hurried home and woke McGinty, who contacted another neighbor, Jock Chute. They all went to the Joseph cabin and found Joseph standing near Folger's body, which was on the floor in a pool of blood. A rifle lay on a nearby bed.
Joseph called the State Troopers to report the death. During that conversation, Joseph suggested that Folger might have committed suicide.
Joseph then went over to McGinty's house. According to McGinty, Joseph gave several different accounts of what happened. Joseph stated that Folger shot herself and he discovered the body. He stated that Folger was trying to kill herself and the gun went off while he was trying to take it away from her. He also stated that he thought McGinty might have killed her.
Troopers Neil Fulks and Lance Dahlke traveled to Rampart to investigate the death the following day. The troopers went to the cabin where Folger died. When they entered the cabin, they found Folger's body lying on the floor of the cabin in a pool of blood. A later autopsy determined that Folger had been shot once at close range through the chest.
After examining the cabin, the troopers left to find Joseph. The troopers found him, highly intoxicated. In a later encounter, Joseph fought with Trooper Fulks. The troopers arrested Joseph for disorderly conduct and assault in the fourth degree and transported him to Fairbanks.
Trooper Susan Acquistapace interviewed Joseph the following day at the Fairbanks Correctional Center. She advised Joseph of his rights. Joseph told the trooper that he thought he had found Folger lying on the floor when he had come home. He stated he was drunk. Then he stated that he thought he had been awakened by a gunshot and found her dead. He denied that he had fought with Folger.
Two days later, Trooper Acquistapace again interviewed Joseph. She again advised Joseph of his rights. She told him that his account was inconsistent with what she had learned from the autopsy of Folger. At this point, Joseph asked for a lawyer. The interview ended a short time later.
The State charged Joseph with murder in the first degree and misconduct involving weapons in the fourth degree (possession of a firearm while intoxicated). The State also charged Joseph with three counts of assault in the fourth degree for his assault on the trooper and one count of disorderly conduct. These charges were tried separately in a bench trial and are not relevant to this appeal.
AS 11.61.200(a)(7).
At trial, Joseph testified that he acted in self defense. Joseph testified that Folger had come toward him with the gun and that the gun had gone off by accident as he struggled to take it away from her. The jury found Joseph guilty of murder in the first degree and misconduct involving weapons in the fourth degree. This appeal followed.
Joseph's statements to Trooper Acquistapace
Prior to trial, Joseph moved to suppress the statements he made during the interviews conducted by Trooper Acquistapace. The trooper tape-recorded both interviews. Joseph admits that Trooper Acquistapace warned him of his rights. But he argues that she trivialized the Miranda warning and never obtained an express waiver from him after advising him of his rights.
Joseph points to the fact that, at the beginning of the first interview, Trooper Acquistapace told him that she would not question him about the offenses for which he had been arrested (disorderly conduct and assault). The trooper told him that she just wanted to talk to him and that he was not in any trouble as far as she was concerned. She stated that she needed to warn him of his rights because he was in jail. After reading Joseph his rights, the trooper told him "with those rights in mind, if you want to talk to me, fine, if you don't, that's fine. . . ." She then told Joseph that she wanted to ask him questions about what happened to Folger and proceeded to question him.
Superior Court Judge Mark I. Wood conducted the evidentiary hearing on the motion to suppress and later the trial. At the conclusion of the motion to suppress, Judge Wood denied the motion. However, he suppressed the statements that Joseph made in the second interview after he invoked his right to counsel. Judge Wood found that Joseph was highly intoxicated when he was arrested on the 27th. Trooper Acquistapace questioned him on the 28th. Judge Wood noted that Joseph did not seem to have any trouble expressing himself and that he answered the questions the trooper asked him. He concluded that alcohol was not a factor and that Joseph's waiver appeared to be voluntary. He did recognize that Joseph was probably heavily impacted by Folger's death and his earlier intoxication. Judge Wood found that Trooper Acquistapace warned Joseph of his rights, that Joseph stated that he understood his rights, and that the trooper had gone on to explain to Joseph that he could either talk to her or not. Judge Wood explained that he did "not like the way Trooper Acquistapace administered the Miranda warnings in this case." He stated that the better practice was to have the person being interrogated sign a written waiver and to directly ask them whether, having these rights in mind, they want to talk. But he concluded that the record showed that Trooper Acquistapace warned Joseph of his rights and that Joseph waived them, agreeing to talk to the trooper. Judge Wood noted that, in the second interview, Joseph invoked his right to counsel. He concluded that the record showed Joseph knew his rights and knew how to exercise them. He accordingly denied the motion to suppress.
We agree with Judge Wood's conclusion that the record shows Joseph waived his rights. Given the passage of time, Joseph could not have been intoxicated at the time of the interview. We also do not see how Trooper Acquistapace's beginning remarks were improper or undermined Joseph's decision to waive his Miranda rights. It is true that Trooper Acquistapace never obtained Joseph's express waiver of his rights after advising him of his rights. But the Alaska Supreme Court and this Court have held that an express waiver of rights is unnecessary where the defendant's waiver can be inferred from the record. In the present case, Trooper Acquistapace warned Joseph of his rights and, after warning Joseph of these rights, told him, "If you want to talk to me, fine, if you don't, that's fine." Joseph then began answering Trooper Acquistapace's questions without hesitation. This, combined with the fact that Joseph later invoked his rights, is sufficient to establish that Joseph waived his rights at the beginning of the interview.
McMahan v. State, 617 P.2d 494, 499 (Alaska 1980); Pierce v. State, 627 P.2d 211, 216-17 (Alaska App. 1981).
Judge Wood did not err in allowing the rebuttal testimony of Katheryn McGinty, Carmen Thayne, and Debra Anderson
During the defense case at Joseph's trial, Joseph took the stand and testified that, although he and Folger sometimes argued, they never engaged in physical fighting. Joseph further testified that he observed bruises on Folger's body only once — after Folger fought with Kathryn McGinty.
The State sought to rebut Joseph's testimony by presenting the testimony of McGinty and two other women who had seen bruises on Folger's body and spoken to Folger about her relationship with Joseph. When the defense attorney raised a hearsay objection to this testimony, Judge Wood ruled that the witnesses could describe their observations of Folger's physical condition and her behavior. However, the judge prohibited the witnesses from repeating what Folger had said to them during their conversations. Pursuant to this ruling, the prosecutor presented the following testimony. McGinty testified that Folger had showed her bruises on her arms, legs, back, breast, and stomach. McGinty further testified that, on at least one occasion, Folger came to McGinty's house crying. McGinty stated that she never saw Joseph strike Folger, but McGinty described one occasion where she saw Joseph raise his hand to Folger; in response, Folger cowered and flinched, then moved away from Joseph.
Debra Anderson testified that she and Folger were co-workers and spoke to each other about their lives. In particular, they spoke "quite a bit" about Folger's relationship with Joseph. Anderson saw bruising on Folger's body, and she urged Folger several times to "get to a women's resource center, to get to a safe house, to get counseling." Anderson testified that she told Folger "that there was a serious problem going on in her relationship [with Joseph], and [that] it needed to be dealt with."
Carmen Thayne, another of Folger's co-workers, also testified that she observed bruises on Folger's body and that she and Folger discussed Folger's relationship with Joseph. Based on their conversation, Thayne urged Folger to go to a women's shelter.
On appeal, Joseph renews his contention that this testimony was inadmissible hearsay — not because any of the three witnesses repeated Folger's out-of-court statements but because the jurors would necessarily infer that Folger had told the women that Joseph was beating her.
With respect to McGinty's testimony, it is clear that Joseph's objection is meritless. McGinty testified solely to her observations of Folger's physical condition and Folger's behavior on certain occasions. Obviously, the relevance of McGinty's testimony is that one could infer, from Folger's physical condition and behavior, that Folger was being subjected to physical abuse by Joseph. But this inference does not rest on any out-of-court statement.
The issue is closer, however, with respect to the testimony offered by Anderson and Thayne. There is no hearsay component to Anderson's and Thayne's testimony concerning their observations of bruising on Folger's body. But there is an arguable hearsay problem with Anderson's and Thayne's testimony that they engaged in discussions with Folger about her relationship with Joseph and that, based on these discussions, they urged Folger to seek help from a women's shelter.
Under Evidence Rule 801(c), hearsay is defined as evidence of an out-of-court statement offered to prove the truth of the matter asserted in that statement. Application of this definition is often straightforward, but problems arise in situations where, even though the out-of-court statement described by the witness is not being offered for its literal truth, the true probative value of that out-of-court statement is the fact that it necessarily implies another out-of-court statement which is (implicitly) being offered for the truth of the matter asserted.
This issue is discussed in Stephen A. Saltzburg, Michael M. Martin, and Daniel J. Capra's, Federal Rules of Evidence Manual. The authors of the Federal Evidence Manual acknowledge that the Advisory Committee Note to Federal Evidence Rule 801 (the rule upon which our Rule 801 is based) advocates a narrow reading of Rule 801(c). In particular, the Advisory Committee Note states that the definition of hearsay contained in Federal Rule 801(c) excludes "verbal conduct which is assertive but [which is] offered as a basis for inferring something other than the matter asserted." However, as the authors of the Federal Evidence Manual also point out, some courts and commentators disagree with the interpretation of Rule 801(c) espoused by the Advisory Committee.
Stephen A. Saltzburg, Michael M. Martin, and Daniel J. Capra, Federal Rules of Evidence Manual, at 801-21 through 801-25 (8th ed. 2002).
Id., at 801-22.
For instance, in United States v. Reynolds, Reynolds and his co-defendant Parran were charged with conspiracy to unlawfully obtain and cash a social security check belonging to someone else. Reynolds was apprehended when he tried to cash the check. Parran was across the street at the time, watching what was going on. Seeing that Reynolds was being arrested, Parran crossed the street and attempted to casually walk away. As Parran walked by, Reynolds called out to him, "I didn't tell them anything about you."
715 F.2d 99 (3rd Cir. 1983).
The government argued that this statement was not hearsay because it was not being offered to prove the truth of the matter asserted — i.e., Reynolds's assertion that he had not told the officers anything about Parran's involvement in the conspiracy. But the Third Circuit disagreed:
[This] statement's probative value depends on the truth of an [implied] fact . . . the statement implies that . . . Parran was in fact involved [in the conspiracy to defraud.] [Without this inference,] the statement carries no probative weight for the government's case. . . . Consequently, we believe that, as the government uses it, the statement's relevance goes well beyond the fact that it was uttered. . . . [Rather, the] government offers it to prove the truth of the assumed fact of [Parran's] guilt implied by its [utterance]. . . . [W]e reject the government's suggestion . . . that only a statement's express assertion should be considered in deciding whether it constitutes hearsay.
Id. at 103-04.
We recognize that the Reynolds decision is not precisely applicable to the situation presented in Joseph's case. In Reynolds, the government was overtly attempting to introduce an out-of-court statement — whereas in the present case, the testimony offered by the prosecution did not include a recitation of any out-of-court statement. The two witnesses (Anderson and Thayne) simply asserted that they had had conversations with Folger about her relationship with Joseph. One might argue by analogy that even this testimony presented a hearsay problem, to the extent that the jury would necessarily infer that Folger had made out-of-court statements to Anderson and Thayne in which she accused Joseph of beating her.
We conclude, however, that we need not resolve this issue of evidence law in Joseph's case. Even if the hearsay rule bars testimony that necessarily implies the making of an out-of-court statement when the probative value of the testimony rests primarily on the asserted truth of the implied statement, the testimony of Anderson and Thayne would still be admissible — their testimony did not necessarily imply that Folger directly accused Joseph of beating her.
As explained above, both Anderson and Thayne testified that they had spoken to Folger about her relationship with Joseph and that they had urged Folger to seek help from a women's shelter or similar agency. One might possibly infer from this testimony that Folger told Anderson and Thayne that Joseph was beating her. But this inference is not inescapable.
We take judicial notice that battered women are not always candid about their situation; they often make excuses for their partner's behavior, or they assert that they suffered their injuries accidentally. One could therefore infer that when Anderson and Thayne discussed the bruising with Folger, she offered up these or similar explanations of her bruises, and Anderson and Thayne simply did not believe her. Or, alternatively, one could infer that Folger refused to discuss how she suffered her injuries, and Anderson and Thayne inferred (from Folger's refusal) that she was being physically abused by Joseph.
The ultimate question here is whether a jury, upon hearing Anderson's and Thayne's testimony, would necessarily infer that Folger made out-of-court statements to Anderson and Thayne in which Folger directly accused Joseph of beating her. This is a possible inference, but it is not the only possible inference, nor is it even the only probable inference. For this reason, we conclude that Anderson's and Thayne's testimony was admissible over Joseph's hearsay objection.
Judge Wood did not err in admitting the autopsy photographs
Joseph argues that Judge Wood erred in admitting the autopsy photographs of Folger. The photographs were admitted during the testimony of the medical examiner, Dr. Franc Fallico, to illustrate his testimony. Joseph claims that the probative value of the photographs was outweighed by their prejudicial effect.
A.R.E. 403.
A trial judge may admit a photograph in evidence if it is an accurate representation, is relevant, and if the probative value of the evidence is not outweighed by undue prejudice. This Court and the Alaska Supreme Court have allowed trial courts to admit relevant autopsy photographs in spite of their obviously disturbing nature. The case against Joseph was entirely circumstantial. The State significantly relied on the evidence found at the scene, particularly the forensic evidence obtainable from Folger's body. Dr. Fallico's testimony about Folger's wounds, and his conclusions, as illustrated by the autopsy photographs, were critical in explaining to the jury his theory of how the death occurred. Under these circumstances, the autopsy photographs had a high degree of relevance. We conclude that Judge Wood did not err in allowing the State to introduce the autopsy photographs.
Stevens v. State, 443 P.2d 600, 603 (Alaska 1968).
Valentine v. State, 617 P.2d 751, 754 (Alaska 1980); Stevens, 443 P.2d at 604; Howell v. State, 917 P.2d 1202, 1211-12 (Alaska App. 1996); Miller v. State, 778 P.2d 593, 597-98 (Alaska App. 1989).
Joseph also objects to comments the prosecutor made in front of the jury about the photographs being disturbing. It appears that the prosecutor made these comments to prepare the jury for the photographs. But it does not appear to us that the prosecutor's comments approached being reversible error. We note that at one point, when the prosecutor stated that the photographs were "fairly graphic," Judge Wood pointed out that the jury could see that and did not need to be told. We find no error.
Trooper Acquistapace's testimony about her interrogation technique
Trooper Acquistapace testified about her interviews of Joseph, and the audiotape of the interviews was played for the jury. Afterwards, the prosecutor stated that he wished to ask Trooper Acquistapace about interview techniques. Joseph's counsel objected, stating that he had not been given notice that Trooper Acquistapace would be testifying as an expert regarding interview techniques.
The prosecutor responded that he did not intend to have Trooper Acquistapace testify as an expert but only about her normal interviewing technique. Judge Wood overruled the objection, holding that Trooper Acquistapace could "talk about how the interview was conducted and [speak] from her experience."
Trooper Acquistapace then testified about the interview technique she used when questioning Joseph. She explained that frequently defendants are reluctant to talk freely about an incident. She testified that a common interview technique is to suggest to the defendant plausible explanations for what might have happened to get the defendant to start talking. For instance, she stated that an interviewer might suggest the incident occurred because of an accident. She stated that this is what she was doing when she suggested to Joseph that the killing of Folger might have been an accident.
Joseph argues that this was inadmissible expert testimony. But even though Trooper Acquistapace phrased her testimony in terms of what she had been taught and what was common practice among interviewers, the probative value of her testimony did not rest on whether her interview of Joseph complied with the principles she had been taught or with the common practice of police interviewers in general. Rather, the probative value of Trooper Acquistapace's testimony lay in her explanation of what she personally was trying to accomplish when she pursued certain strategies during her interview with Joseph. Moreover, Trooper Acquistapace's explanation of her interview strategy did not rest on principles of police science or psychology that would be unknown or unfamiliar to the jurors.
For these reasons, we conclude that the challenged testimony was not "expert testimony" for purposes of the evidence rules or the discovery rules.
Trooper Acquistapace's comments about what Joseph did not say during the interviews
At trial, Joseph presented a self-defense/accident theory. Joseph contended that Folger came toward him with the gun and the gun went off by accident as he attempted to take it away from her. To undermine Joseph's defense, the State pointed out that Joseph never made this claim in the statements he made following the incident, including the statements he made to Trooper Acquistapace. After Trooper Acquistapace played the audiotape of the interviews, the prosecutor summarized the interviews:
Q: Recapping both interviews, did he ever tell you it was self defense?
A: No.
Q: In the interviews we've heard, did he ever tell you it was self defense?
A: No.
Q: Did he ever tell you he was trying to get the gun away from her? In the interviews that we've heard here in court, did he ever tell you that he was trying to get the gun away from her?
A: Not in what we've heard, no.
Joseph's counsel moved for a mistrial, arguing that Trooper Acquistapace's testimony was an improper comment on his silence. Joseph's counsel argued that Trooper Acquistapace's statement "not in what we've heard" implied that the jury had not heard all of Joseph's statements. (The jury had not heard all of Joseph's statements because Judge Wood suppressed the statements Joseph made after he asked for counsel.) Judge Wood declined to grant a mistrial but offered to give a curative instruction. Joseph rejected the offer of a curative instruction, arguing that any curative instruction would be inadequate to cure the prejudice.
During closing argument, the prosecutor reviewed Joseph's testimony, comparing it to his statements to Trooper Acquistapace:
Never once, never once, did he tell dispatch there was a struggle, or Trooper Pugh there was a struggle, or Trooper Acquistapace there was a struggle, or even the troopers when they were out there in the field. Never once did they hear that there was a struggle. It's only when we get here to court for the first time do we hear that there was a struggle, a fight, that there was a need for self defense.
In the rebuttal, the prosecutor reiterated the same point, stating "There's nothing in the police report about self defense or a fight. There's nothing in the 911 call about self defense or a fight. There's nothing from Trooper Acquistapace about self defense or a fight. It's only here at trial."
Joseph argues that Trooper Acquistapace's testimony and the State's argument constituted an impermissible comment on his right to silence. First, we conclude that Judge Wood did not err in finding that Trooper Acquistapace's statement "not in what we've heard" did not constitute an inference that Joseph had made other statements. Trooper Acquistapace's comment was merely a response to the prosecutor's question, which referred to the statements that had been played in court.
Furthermore, Judge Wood did not err in concluding that Trooper Acquistapace's testimony and the State's arguments were not improper comments on Joseph's silence. Joseph did not remain silent. He made numerous statements following the incident, including the statements he made to Trooper Acquistapace. The State's argument was not that Joseph exercised his right to remain silent; the State's argument was that Joseph made statements that were inconsistent with his trial testimony. A defendant can be questioned about prior statements inconsistent with his trial testimony. Accordingly, the prosecution did not improperly comment on Joseph's silence.
Anderson v. Charles, 447 U.S. 404, 408, 100 S. Ct. 2180, 2182, 65 L. Ed. 2d 222 (1980); Doyle v. Ohio, 426 U.S. 610, 619, 96 S. Ct. 2240, 2245, 49 L. Ed. 2d 91 (1976); Weston v. State, 656 P.2d 1186, 1190-91 (Alaska App. 1982), reversed on other grounds, 682 P.2d 1119 (Alaska 1984).
The closing argument
During the State's argument to the jury at the end of the case, the prosecutor argued that, through the physical evidence, Folger was able to speak to the jury. And at the end of his rebuttal argument, the prosecutor said, "Doris thanks you." Joseph's counsel moved for a mistrial, arguing that the statement was improper and inflammatory. Judge Wood denied the motion for a mistrial, finding that the prosecutor's statement was consistent with his argument that Folger was able to speak to the jury through the forensic evidence. Joseph argues that this was error.
We agree with Joseph that the statement was probably improper. But, in context, it seems clear that this statement could not have had any impact on the jury's verdict. We accordingly conclude that Judge Wood did not err in denying Joseph's motion for a mistrial.
Conclusion
We have reviewed Joseph's claims of error and conclude that they do not have any merit. We accordingly affirm Joseph's conviction.