Opinion
A-13468
10-19-2022
JODY RYAN MOSES, Appellant, v. STATE OF ALASKA, Appellee.
Kelly R. Taylor, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Kenneth M. Rosenstein, Assistant AttorneyGeneral, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Fourth Judicial District Trial Court No. 4FA-18-00510 CR Fairbanks, Paul R. Lyle, Judge.
Kelly R. Taylor, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Kenneth M. Rosenstein, Assistant AttorneyGeneral, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Terrell, Judges.
MEMORANDUM OPINION
ALLARD JUDGE
Jody Ryan Moses was convicted, following a jury trial, of second-degree assault and tampering with physical evidence for stabbing a man with a knife and subsequently disposing of the knife. Moses raises two issues on appeal.
AS 11.41.210(a)(1) and AS 11.56.610(a)(1), respectively.
First, Moses argues that the trial court abused its discretion when it allowed the State to introduce evidence that Moses and the victim had contact in jail two weeks before Moses's trial. The State argued that this evidence was relevant to the victim's recantation at trial. Moses objected to the evidence, arguing that it was unduly prejudicial and speculative. We reject this contention and affirm the trial court's ruling as within its discretion.
Second, Moses argues that the trial court erred when it excluded proffered testimony by Moses's mother that Moses "says things that aren't true" when he is intoxicated. (The defense attorney argued that this testimony was relevant to assessing the credibility of Moses's confession to the police, which occurred when he was intoxicated.) Having reviewed the record, we conclude that any error in excluding this testimony was harmless.
Factual background
In February 2018, Fairbanks police officers responded to a 911 call by Tracy McGill who reported that he had just been stabbed. When the police arrived, McGill was intoxicated. McGill told the police that two men - Chris Turco and another man he did not know - were visiting his house. McGill said that he was smoking on the porch with Turco, when the other man came out of the house with a knife and tried to stab him. McGill reported that the man was trying to stab him in the gut, but McGill hit him and the man ended up stabbing McGill in the leg. McGill and the man struggled over the knife and McGill was able to throw the man over the edge of the porch. McGill then went inside and called the police. Turco and the other man left.
MiriamOdom, who was at the house, indicated that the other man was Jody Moses. McGill later identified Moses from a photo line-up as "the person that tried to take my life."
The police followed footprints in the snow and contacted two men approximately a half-mile from McGill's house. One of the men was Turco, whom McGill knew. The other man was Moses. The tread on Moses's shoes was consistent with the tread of the footprints the police had followed. Moses had a cut on his hand.
Moses was arrested and later interviewed by the police. Moses had a blood alcohol content of 0.059 percent at the time of the interview, about four hours after the assault. After waiving his Miranda rights, Moses confirmed that he had been at McGill's home with Turco and he confessed to stabbing McGill "about three times." Moses said "he just lost it." Moses did not recall stabbing McGill in the leg with his knife; he told the police that he "thought he stabbed him in the neck." Moses told the officer that he had cut his hand on the knife "when he and the victim were struggling over the knife." Moses said that he "swung at [McGill] . . . [t]hree or four times." Moses "thought [he] killed him." Moses also admitted to throwing the knife "over by the bridge."
The trial proceedings
At trial, McGill testified to a new version of events. According to McGill, Moses was not the man who had stabbed him. Instead, McGill testified that there were three men who came to his house - Chris Turco, Moses, and a "Native male." He then testified that it was the third man - the "Native male" - who stabbed him. McGill said that he had falsely identified Moses as his attacker because he was "half drunk" and "pretty high" on crystal meth and Odom had mentioned Moses's name. McGill was unable to explain why knowing Moses's name would have made him pick Moses out of a photo line-up as his attacker given that the photo array did not include names.
McGill admitted that he had testified at the grand jury proceeding that there were only two men at his house and that the man he identified in the photo line-up was his attacker. But he claimed that he "probably was high" when he gave that testimony and that he had since undergone treatment. McGill acknowledged that he had never told the police that he had misidentified his attacker, although McGill asserted that he had told his attorney.
In response to McGill's trial recantation of his identification of Moses, the prosecutor sought to introduce evidence that McGill and Moses had contact about two weeks prior to trial when they were in jail at the same time. The prosecutor argued that the evidence was relevant to the reason why McGill may have changed his testimony about Moses being his attacker. The prosecutor explained that there was a video of the interaction that did not have any audio, but the prosecutor intended to have a correctional officer testify to the interaction rather than show the video.
The defense attorney objected to any evidence of the interaction being admitted, but stated that if evidence was allowed to come in, it should be through the silent video rather than through a correctional officer's testimony.
The trialcourt overruled thedefenseattorney'sobjection, and the video was shown to the jury.
At another point in the trial, the prosecutor introduced evidence of Moses's out-of-court confession through the officer who heard the confession. The defense attorney cross-examined the officer about the fact that Moses was intoxicated during the police interview, that he was chained to the wall, and that he was not given any food or drink for hours.
In an additional attempt to attack the credibility of the confession, the defense attorney sought to introduce testimony from Moses's mother that Moses lies when he is intoxicated. (Although the defense attorney argued that this was "habit" evidence, the trial court recognized that it was actually "character" evidence.) The court ruled that the proffered testimony was inadmissible because "[i]t's not related to the conduct for which he's charged in this case" - i.e., because Moses was charged with assault and tampering with physical evidence, not lying while intoxicated.
The jury subsequently convicted Moses of second-degree assault and tampering with physical evidence. This appeal followed.
Moses's argument that the trial court abused its discretion when it allowed the prosecutor to introduce evidence of the interaction between McGill and Moses in jail
On appeal, Moses argues that the trial court erred when it allowed the prosecutor to introduce the video of the interaction at the jail between McGill and Moses. Moses acknowledges that he cannot complain about the form of the evidence - i.e., that the evidence was a video showing Moses in a jail uniform - because his attorney had specifically requested that the video be played if the court ruled the evidence was admissible. Instead, Moses's argument is that the evidence should have been excluded under Alaska Evidence Rule 403 because it was highly prejudicial for the jury to learn that Moses was in jail. And he argues that the probative value of this evidence was marginal because it was "highly speculative" to think that this brief interaction between McGill and Moses had anything to do with McGill changing his testimony.
The trial court is generally vested with broad discretion to regulate the admission of evidence at trial, and we therefore review a trial court's ruling on the admissibility of evidence for an abuse of that discretion. We do not find an abuse of discretion here. Contrary to Moses's claim on appeal, it was not unreasonable for the prosecutor to argue that the recent interaction between Moses and McGill may have been related to McGill's unexpected trial recantation. Moses was also free to challenge this proposition before the jury and, indeed, Moses's attorney contended in her closing argument that the video did not depict Moses threatening McGill at the jail and therefore did not support the prosecutor's theory.
See Howard v. State, 239 P.3d 426, 429 (Alaska App. 2010).
See Alaska R. Evid. 613(a) ("[E]vidence of bias or interest on the part of a witness [is] admissible for the purpose of impeaching the credibility of [the] witness."); Lahmeyer v. State, 765 P.2d 985, 987 (Alaska App. 1988) ("Under Evidence Rule 607, the credibility of a witness may be attacked by any party, including the party calling him."); Cleveland v. State, 258 P.3d 878, 884 (Alaska App. 2011) (noting that a trial court must be "particularly solicitous toward cross-examination that is intended to reveal bias, prejudice, or motive to testify falsely" (internal quotation marks and citation omitted)).
Onappeal, Mosesemphasizes that therewas reasontobelievethatMcGill's recantation was not sudden or unexpected, and that, in fact, McGill may have told a defense investigator that his story had changed prior to the interaction with Moses in the jail. But the defense attorney was given an opportunity to provide evidence that would have supported this assertion, and she failed to do so. The trial court was not required to consider the unsupported statements of counsel in its analysis of the evidence under Rule 403. Accordingly, we reject Moses's claim of error.
Moses's argument that the trial court erred when it excluded his mother's character testimony regarding his reputation for dishonesty when intoxicated
Moses also argues that the trial court abused its discretion when it excluded the proffered testimony of his mother that "when [Moses] is intoxicated he says stuff that isn't true just to say it."
The trial court ruled that this character evidence was inadmissible because, in the court's view, evidence that Moses lied when he was intoxicated was not related to a "particular trait[] of character relevant" to Moses's conduct because Moses was charged with assault and tampering with physical evidence, not lying while intoxicated. Moses argues that this is too narrow a definition of relevancy. We tend to agree.
In Freeman v. State, the Alaska Supreme Court noted that the rule that character evidence is generally inadmissible in a criminal trial does not apply to defendants who are typically allowed to introduce evidence of their good character in support of their claim of innocence. As the supreme court explained, a defendant is generally entitled to establish his "good character" and he need not testify in order to do so. But, as the supreme court also recognized, "general good character may not usually be shown; instead, proof must be confined to particular traits of character relevant to the conduct with which the accused has been charged."
Freeman v. State, 486 P.2d 967, 972-73 (Alaska 1971); see also Alaska R. Evid. 404(a)(1) (creating exception to the general prohibition against character evidence if the character trait is offered by the accused).
Freeman, 486 P.2d at 973.
The trial court interpreted this language in Freeman to mean that the defendant's character evidence must be directly related to the underlying conduct of the crime. For example, a defendant's character for peacefulness is relevant in an assault case, although likely not relevant in a driving under the influence case.
But a defendant's character for truthfulness or untruthfulness is different. Alaska Evidence Rule 608 provides, in relevant part,
(a) Opinion and Reputation Evidence of Character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness; and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
In addition, Alaska Evidence Rule 806 establishes that "[w]hen a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness."
Here, Moses's out-of-court confession to the police was admitted under Alaska Evidence Rule 801(d)(2) (admission by party-opponent). Although Moses did not cite to the applicable rules, it is clear that he wanted to have his mother testify to his character for untruthfulness when intoxicated so that he could attack the credibility of his out-of-court confession. This is certainly an unusual request, as typically a defendant seeks to introduce evidence of his good character, but the rules seemingly allow for it.
We conclude, however, that we need not reach a definitive answer to whether it was error to preclude the mother's testimony because any error was harmless. The case against Moses was very strong, and McGill's testimony at trial did not match his prior statements or the evidence. When the police followed the footprints from the house, they found only two men, which was consistent with McGill's initial report and Ainconsistent with his later trial testimony. McGill also identified Moses as his attacker from a photo line-up - a fact that McGill was never able to adequately explain at trial given that he was otherwise unfamiliar with what Moses looked like. In addition, when Moses was apprehended, he had a cut on his hand consistent with the struggle over the knife that McGill had reported. Moses also directly confessed to the crime.
Moreover, even without his mother's testimony, Moses was able to attack the credibility of his out-of-court confession in multiple ways. During closing argument, the defense attorney emphasized Moses's state of intoxication, and she argued that "he was saying anything that he could say to improve his situation" because he had been deprived of food and water and handcuffed to the wall. From the verdict, it is clear that the jury rejected Moses's claim that his confession was a false confession. Accordingly, given the state of the evidence, we conclude that there is little likelihood that testimony from Moses's own mother about his character for dishonesty when intoxicated would have made any difference to the jury's verdict.
Conclusion
The judgment of the superior court is AFFIRMED.