Opinion
Court of Appeals No. A-10940 Trial Court No. 4BE-07-1794 CR No. 5998
12-11-2013
JAMES LEOPOLD III, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Dan S. Bair, Assistant Public Advocate, Appeals & Statewide Defense Section, and Richard Allen, Public Advocate, Anchorage, for the Appellant. W. H. Hawley, 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, Leonard R. Devaney III, Judge.
Appearances: Dan S. Bair, Assistant Public Advocate, Appeals & Statewide Defense Section, and Richard Allen, Public Advocate, Anchorage, for the Appellant. W. H. Hawley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Coats, Senior Judge .
Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).
Judge MANNHEIMER.
James Leopold III was convicted of sexually abusing two eight-year-old girls. During the investigation of the case, each girl was interviewed by an employee of the Bethel Child Advocacy Center. The video recordings of these interviews were played for the jury at Leopold's trial.
In this appeal, Leopold argues that the superior court should not have allowed the State to introduce these video recordings because (according to Leopold) the two interviews were conducted in a way that unduly influenced the girls and that undermined the reliability and trustworthiness of their statements.
Leopold also argues that, during the prosecutor's direct examination of the two girls, the prosecutor asked a series of leading questions that improperly recapitulated statements that the girls made during the Child Advocacy Center interviews.
We conclude that Leopold's first claim is not adequately preserved. As we explain in this opinion, the argument that Leopold's trial attorney presented on this issue (the reliability and trustworthiness of the girls' statements) was both cursory and conclusory. It stands in vivid contrast to the extensive and detailed arguments set forth in Leopold's appellate brief. The trial judge was never apprised of these arguments — so the trial judge never had a chance to analyze them and respond to them.
With respect to the prosecutor's direct examination of the two girls, we agree with Leopold that the objected-to questions were improper. However, in light of all the evidence presented to the jury, in light of the girls' answers to the objected-to questions, and in light of the judge's instruction to the jurors that an attorney's questions are themselves not evidence, we conclude that the error was harmless.
Underlying facts relating to Leopold's argument that the State failed to establish the necessary evidentiary foundation for the two video recorded interviews
Leopold was accused of engaging in sexual contact with his nieces C.L. and T.L.; these girls were eight and nine years old at the time. The girls initially reported this inappropriate touching to C.L.'s mother, but they were later interviewed (separately) by Elena Aluskak, a staff member at the Bethel Child Advocacy Center. These interviews took place in early May 2007, and they were video recorded.
Eight months later, in mid-December, the girls testified before a grand jury. The grand jury issued an indictment charging Leopold with seven counts of second-degree sexual abuse of a minor.
In advance of Leopold's trial, the State notified the court and the defendant that it proposed to introduce the video recordings of the two girls' interviews at the Advocacy Center, pursuant to the provisions of Alaska Evidence Rule 801(d)(3).
Evidence Rule 801(d)(3) declares that out-of-court statements of a crime victim under the age of 16 are not hearsay if the statements are recorded, and if the following eight conditions are met:
(A) the recording was made before the proceeding;
(B) the victim is available for cross-examination;
(C) the prosecutor and any attorney representing the defendant were not present when the statement was taken;
(D) the recording is on videotape or other format that records both the visual and aural components of the statement;
(E) each person who participated in the taking of the statement is identified on the recording;
(F) the taking of the statement as a whole was conducted in a manner that would avoid undue influence of the victim;
(G) the defense has been provided a reasonable opportunity to view the recording before the proceeding; and
(H) the court has had an opportunity to view the recording and determine that it is sufficiently reliable and trustworthy, and that the interests of justice are best served by admitting the recording into evidence.
In response to the State's notice, the trial judge ordered the State to provide him with the video recording and a transcript of each interview, so that the judge could review the proposed evidence as required by subsection (H) of the rule. The judge also scheduled a hearing so that the parties could argue their respective positions on the admissibility of the video recordings.
On the morning of the scheduled hearing, Leopold's attorney filed a written opposition to the State's proposed evidence. The majority of this pleading was devoted to the argument that Evidence Rule 801(d)(3) was an unconstitutional infringement of a defendant's right of confrontation under the Sixth Amendment. (Leopold does not pursue this argument on appeal.)
The defense attorney then raised the following alternative claim, in the event that the judge upheld the constitutionality of Evidence Rule 801(d)(3):
[Evidence Rule 801(d)(3) requires] that the interview must be conducted in a manner that avoids undue influence of the victim. The interviewing techniques [used in this case]The defense attorney offered no more than this conclusory assertion. That is, she offered no explanation of why she believed that Ms. Aluskak's interviewing techniques undermined the reliability and trustworthiness of the girls' statements.
also undermine the reliability and trustworthiness of the [girls'] statements.
Later that day, at the court hearing, the trial judge allowed the defense attorney to further explain her objections to the video recordings of the girls' interviews at the Child Advocacy Center. Here is the defense attorney's complete argument of this point:
Defense Attorney: I stand on the arguments that are made in the opposition [that I filed earlier today,] which the Court can review. The danger is the children's testimony being presented, one, possibly help the child even testify [sic]; and then two, assuming that they do testify, no opportunity to have an ability to contest, at the time of the interview, what was being asked, what was being done, and the circumstances about it.
If you allow the interview, maybe [the State] won't call the person that was the person that took the interview, maybe they'll try to do that. I'm not sure how they'll attempt to approach it. Maybe they'll just offer the interview and not the child. I've seen that done. And I oppose that, and have mentioned that in our opposition.
We also think that the method of the interview itself — and you have to listen to the interview —
The Court: Uh-huh.
Defense Attorney: ... is such that it's overly suggestive. And that, combined with the grand jury
testimony showing that these children have great difficulty in responding, the Court should not allow that interview to be played. Thank you.
One week later, the judge issued two written decisions, each one separately addressing the admissibility of one of the girls' interviews. With regard to each interview, the judge stated that he had "reviewed the tape of the interview", and he then described salient portions of each interview.
In each case, the judge concluded that the interview was not the product of "undue influence", and that the interview was "sufficiently reliable and trustworthy" to be admitted at trial. The judge listed the factors (both pro and con) that he took into account when reaching these conclusions.
After the judge issued his decisions, Leopold's attorney never indicated that she thought the judge had relied on improper factors, or that the judge had failed to consider other necessary or important factors, or that the judge had mischaracterized the content or tenor of the two interviews.
Leopold's argument on appeal
On appeal, Leopold challenges the judge's decisions to allow the State to introduce the video recordings of the girls' interviews.
In his brief, Leopold discusses the law of five other states that have enacted rules or statutes authorizing the government to introduce out-of-court statements made by crime victims. After describing the laws of these five states, and the factors that courts from those states consider when deciding whether to admit a crime victim's out-of-court statements, Leopold then conclusorily asserts:
Alaska should apply [all] the factors [used in] Utah and factors i [and] iii - xii from Maryland as a foundational basis for a judge's assessment concerning undue influence, reliability[,] and trustworthiness [when deciding questions of admissibility] under Alaska Evidence Rule 801(d)(3).But Leopold offers no argument in favor of this proposal — no explanation of how these factors are interpreted and applied by the courts of Utah and Maryland, and no explanation of why Leopold believes that these factors are valid ways of assessing the evidence, or any other reason why these factors should be adopted as the law of Alaska.
Leopold next asserts that the trial judge was mistaken when he concluded that the two interviews in this case were not the product of undue influence, and when he concluded that the girls' statements were sufficiently reliable and trustworthy to be admissible under Evidence Rule 801(d)(3).
In his brief, Leopold offers a lengthy analysis of why he believes that the interviewer, Ms. Aluskak, manipulated the content of the interviews by asking unduly leading questions, or by posing questions that restricted the girls to a limited range of answers.
Leopold also points out that Aluskak sometimes repeated the girls' answers. Leopold does not directly assert that this repetition had any effect on the girls' statements. But given the context, Leopold apparently believes it is self-evident that the interviewer's act of repeating some of the girls' answers constituted an "undue influence", or that it otherwise undermined the reliability and trustworthiness of the girls' statements.
None of this analysis was presented to the trial judge. In effect, Leopold asks this Court to consider these aspects of the interviews for the first time on appeal — to sit in the place of a trial judge to assess the questions of undue influence, reliability, and trustworthiness.
This is not allowed. When a litigant asks a trial judge to allow or prohibit some proposed action, the litigant must support their request with a "complete statement of the reasons in support of the [request], including the legal points and authorities upon which the party will rely and a detailed statement of the material facts supporting the request for relief." Pierce v. State, 261 P.3d 428, 431 (Alaska App. 2011). In other words, "a litigant must not only tell the court what they want, but must also explain — unless it is already apparent — why, under the facts of the case and the pertinent law, the court is authorized or required to grant the relief the litigant is seeking." Ibid (emphasis in the original).
When this issue was litigated in the superior court, Leopold's attorney asserted (in her written pleading) that "[t]he interviewing techniques [used in this case] undermine[d] the reliability and trustworthiness of the [girls'] statements". Later, at the hearing on this issue, Leopold's attorney asserted that "the method of the interview ... [was] overly suggestive". But these were merely unsupported legal conclusions, not arguments.
As we explained in Pierce, an attorney must provide "a case-specific factual and legal analysis" to support a motion or an objection (unless the factual and legal underpinnings of the attorney's position are already clear). 261 P.3d at 433. More specifically,
It [is] not [a trial judge's] job to figure out how the [facts of the case], in combination with the applicable law, might conceivably justify [the attorney's position]. Nor [is] it [a trial judge's] duty to make, unprompted, all the findings of fact and rulings of law needed to resolve any and all possible arguments in support of [the attorney's position]. Rather, itPierce, 261 P.3d at 433.
[is] the ... attorney's job to frame an argument that contain[s] a proposed factual and legal analysis of [the] case, and to seek the judge's ruling on that argument.
For these reasons, we conclude that Leopold failed to preserve this claim for appeal.
The prosecutor's questioning of the two girls at trial
During the prosecutor's direct examination of the two girls, he asked them if they remembered being interviewed by Ms. Aluskak at the Child Advocacy Center, and if they remembered testifying before the grand jury. In both instances, the girls said that they did not remember testifying in front of the grand jury. The girls said that they remembered being interviewed by Aluskak, but they could not remember what they said during those interviews.
The prosecutor then asked each girl a series of questions using the formula: "Do you remember telling [Ms. Aluskak or the grand jury] [some assertion about the sexual abuse]?"
Leopold's attorney objected that these questions were improper because they were leading. The defense attorney also objected that the prosecutor was apparently trying to impeach the girls with their prior statements, when the girls had not yet testified to anything impeachable.
The prosecutor responded that if the girls did not remember making these statements during their interviews at the Child Advocacy Center and during their grand jury testimony, then the statements were "prior inconsistent statements" (because of the girls' lack of memory). The prosecutor argued that, before he could introduce these prior inconsistent statements, he was required by Evidence Rule 801(d)(1) to confront the girls with these prior statements and give them a chance to either deny making the statements or explain the statements.
The trial judge adopted the prosecutor's position on this matter:
The Court: She says she can't remember [making the statements during the interview at the Child Advocacy Center], so anything she ... said before is a prior inconsistent statement ... . So I think I have to allow [the prosecutor's line of questioning] at this point.
This ruling was error: the prosecutor's questions were, in fact, improper.
There are times when a court case might directly present the question of whether a person made a particular statement on a prior occasion — because the statement, if made, would have independent legal consequences (for example, the formation of a contract, or the creation of an agency).
In such instances, a lawyer might ask the person whether they made the statement in question — and if the person claimed not to remember making the statement, the lawyer could rely on the "prior inconsistent statement" provision of Alaska Evidence Rule 801(d)(1) to introduce extrinsic evidence of that prior statement.
But Leopold's trial was not this type of litigation. The issue being litigated was not whether the girls made prior statements about the acts of sexual abuse. Rather, the issue was whether the acts of sexual abuse took place. Accordingly, the relevant inquiry was not whether the girls remembered saying certain things about the sexual abuse during their Child Advocacy Center interviews or during their grand jury testimony. Rather, the relevant subject of inquiry was whether the girls remembered the sexual abuse itself.
If the girls did not remember the abuse, or if they testified about the abuse in a manner that was inconsistent with their prior statements, then the girls' prior statements about the sexual abuse were potentially admissible as "prior inconsistent statements" under Evidence Rule 801(d)(1). But the mere fact that the girls did not remember making particular statements about the abuse did not, standing alone, mean that those statements (if made) qualified as "prior inconsistent statements". To lay a foundation for admitting the girls' prior statements under Rule 801(d)(1), the prosecutor had to ask the girls about the abuse itself, and had to show that the girls' ensuing testimony was inconsistent with their prior statements.
However, the record shows that this defect in the form of the prosecutor's questions was inconsequential.
The jury heard direct evidence of the statements the girls made during their interviews at the Child Advocacy Center — because the video recordings of those interviews were independently admissible under Evidence Rule 801(d)(3). It therefore did not matter whether those statements were also admissible as prior inconsistent statements under Evidence Rule 801(d)(1).
And with regard to Leopold's objection that the prosecutor was improperly allowed to repeat the girls' statements through the series of leading questions, we conclude that any prejudice was cured by the judge's instructions to the jury and by the final arguments of the parties.
At the beginning of Leopold's trial, the judge instructed the jurors that statements made by the attorneys are not evidence: "You are reminded that statements of counsel are not evidence, but are merely an indication of what evidence counsel expects to be presented."
Then, at the end of the trial, the attorneys explicitly raised this point in their summations to the jury. During the defense summation, Leopold's attorney warned the jury that they should not rely on the implications of the leading questions that the prosecutor posed to the two girls:
Defense Attorney: I want to take a moment and talk briefly about something that's very, very important in a case like this — and that is making up your own minds about what you heard witnesses say. Anybody can ask a frightened, confused child a leading question. And you heard the prosecutor do it over and over in this case. What you didn't hear was any real questions about what happened. We heard mostly from [the prosecutor] putting words in the children's mouths. And now his closing argument is based mostly on those leading questions. [But] you do get a chance to review the audio recordings, to review the videos; and probably this is the kind of case, more so than others, where you need to do that.In his reply summation, the prosecutor agreed with the defense attorney that the questions he posed to the two girls were not evidence:
Prosecutor: Now, [the defense attorney] was concerned with the way I asked questions of the children, the leading way I asked questions. When children don't respond, ... the court allow[s] me [to] ask those questions. I didn't want to have to ask them. But you heard [those questions]. And, no, they're not evidence. The evidence is ... what was said ... in the interview with Elena Aluskak [at the Child Advocacy Center].
For these reasons, we conclude that the error in the format of the prosecutor's questions was harmless.
See Love v. State, 457 P.2d 622, 634 (Alaska 1969) (holding that, for instances of non-constitutional error, the test for harmlessness is whether the appellate court "can fairly say that the error did not appreciably affect the jury's verdict").
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Conclusion
The judgement of the superior court is AFFIRMED.