Opinion
Court of Appeals No. A-9324.
April 11, 2007.
Appeal from the Superior Court, Second Judicial District, Kotzebue, Ben J. Esch, Judge., Trial Court No. 2KB-04-182 Cr.
Dan S. Bair, Assistant Public Advocate, and Chad W. Holt, Supervising Assistant Public Advocate, Anchorage, for the Appellant.
Nancy R. Simel, 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
Axel Snyder appeals his convictions for bootlegging (importation of liquor into a dry community), selling liquor without a proper license, furnishing liquor to a minor, and violating the conditions of his release. Snyder contends that one of the State's witnesses improperly vouched for the character of another government witness, and Snyder further contends that, during the State's summation, the prosecutor improperly asserted a personal belief that one of the State's main witnesses was telling the truth.
AS 04.11.491(a)(4), AS 04.11.010(a), AS 04.16.051, and AS 11.56.757(a), respectively.
Snyder did not object to these things at his trial, so he now must show plain error. For the reasons explained here, we conclude that neither the challenged testimony nor the challenged summation constitute plain error — either because they were not obvious error, or because any error was unlikely to have affected the jury's decision.
The testimony and the summations at Snyder's trial
On February 8, 2004, the Selawik Village Public Safety Officer, Richard Mashburn, went to the residence of Daniel and Amelia Davis to investigate a disturbance. He ended up arresting the couple's son.
The couple's twenty-year-old daughter, Shannon Davis, angrily followed Mashburn outside. Shannon was visibly intoxicated, and she was not wearing a coat, so Mashburn told her to go back inside her home. Shannon refused to go home; instead, she followed Mashburn back to the police station and refused to leave. Because Shannon was so intoxicated that she could barely stand, and because she would not leave, Mashburn took her into protective custody.
After Shannon Davis was placed in custody, she began to repeatedly tell Mashburn that her mother had let Axel Snyder borrow her snow machine to make a run to Kotzebue, and that this is how she got the liquor that she had been drinking.
According to Mashburn, Shannon "kept repeating the same thing over and over" without any prompting from him, and the details of Shannon's statements remained consistent, even though she was quite drunk. Because of this, Mashburn concluded that Shannon was likely telling the truth, so he reported her accusation to his supervisor, Trooper Rex Leath.
When Leath arrived in Selawik to interview Shannon and her parents, Shannon's story changed somewhat: she now admitted that she (and not her mother) was the one who lent the snow machine to Snyder. Shannon repeated this admission when she testified at Snyder's trial. She testified that she agreed to let Snyder use the snow machine to fetch the bootleg liquor from Kotzebue, in exchange for the promise of four bottles. She further admitted that she later demanded (and received) a fifth bottle because of Snyder's delay in returning the snow machine.
Shannon also explained to the jury that she was testifying against Snyder because she had reached a deal with the State: in exchange for her promise to testify truthfully at Snyder's trial, Shannon received a suspended imposition of sentence (with a 3-day jail sentence) for her complicity in the felony bootlegging, and the State agreed to return her snow machine to her.
Shannon's parents, Daniel and Amelia Davis, corroborated Shannon's testimony concerning the bootlegging incident. They both testified that Shannon was the owner of the snow machine — and that when Snyder contacted them and asked to borrow the snow machine, they told him that he would have to speak personally to Shannon. Daniel and Amelia also testified that Snyder's wife later came to their house and delivered four bottles of liquor.
According to Amelia Davis, when Snyder's wife delivered these bottles of liquor, she told the Davis family that "she would bring one more [bottle] later", and that her husband ( i.e., Snyder) "hid [the] rest of the booze outside of town [because] he was scared of [the] troopers catching him . . . ." Daniel Davis testified that Shannon's snow machine was returned a couple of days after that.
The defense chose not to present a case. However, in her summation to the jury, Snyder's attorney pointed out that the State's case rested almost entirely on the testimony of Shannon Davis and her parents, Daniel and Amelia. The defense attorney argued that the jurors should not believe these three witnesses because "[they] have a lot vested in this, and [they have] very good reasons . . . to be biased".
The defense attorney noted that Shannon Davis, in particular, faced legal problems for drinking (because she was a minor). The defense attorney suggested that Shannon had accused Snyder of bootlegging, not because it was true, but because Shannon knew that Snyder had a reputation for being a bootlegger, and because she knew that "the easiest way to keep from getting in trouble, when you're the one [who's] in trouble . . ., is to shift the blame to someone else."
In sum, the defense attorney argued that Shannon and her parents were "all protecting themselves" by pinning the crime on Snyder, "an easy scapegoat".
Responding to this argument, the prosecutor began her rebuttal with these two sentences:
Prosecutor: Did you believe Shannon Davis? You know, I thought she made a very believable witness, but you are the triers of fact.
The prosecutor then proceeded to list the reasons why the jurors should believe the testimony offered by Shannon Davis and her parents, referring to the details of what these witnesses said on the stand, as well as their demeanor while testifying.
In particular, the prosecutor noted that although it is illegal to import liquor into Selawik, it is not illegal to possess it. Thus, if Shannon Davis had remained silent — if she had made no statement about how she got the liquor — she would have only faced a charge of minor in possession. Instead, she implicated herself as an accomplice in felony bootlegging. The prosecutor argued that it did not make sense for Shannon to say such things if her statements were not true.
The jury convicted Snyder on all four counts.
Snyder's claims on appeal
Snyder argues that it was plain error for the trial judge to allow VPSO Mashburn to testify that he believed Shannon Davis when she said that she got her liquor from Snyder, and that Snyder had brought the liquor into Selawik from Kotzebue by snow machine. Snyder further argues that it was plain error for the trial judge to allow Mashburn to testify that Shannon Davis was generally a quiet person and not a troublemaker.
It is true that, generally, witnesses are not allowed to testify that they believe the testimony of another witness. It is also true that, generally, witnesses are not allowed to offer their opinion on any aspect of another witness's character other than the witness's character for truthfulness (or untruthfulness). (See Alaska Evidence Rule 608(a), which authorizes a party to introduce reputation or opinion evidence concerning a witness's character for truthfulness if the witness's character for truthfulness has been attacked.)
Here, VPSO Mashburn testified that Shannon Davis was normally a quiet person and not a trouble-maker, and that he believed that she was likely telling him the truth about how she got the liquor. This testimony might, at first blush, appear to violate the two foregoing principles.
However, it appears from the record that when Mashburn offered his assessment, he did not intend to vouch for the ultimate truthfulness of Shannon's story. As Mashburn himself explained a few minutes later in his testimony, Shannon subsequently admitted that part of what she initially told Mashburn was false: Snyder did not borrow the snow machine from Shannon's mother, but rather from Shannon herself.
The record suggests, instead, that Mashburn offered the challenged testimony to explain why, even though Shannon was extremely intoxicated, Mashburn nevertheless decided that he should inform his supervisor, Trooper Leath, of Shannon's statements concerning the bootlegging. During the State's summation to the jury, the prosecutor explained this theory of relevance to the jurors:
Prosecutor: [Mashburn testified that Shannon] was repeating over and over [that] she had gotten the alcohol from [Snyder]. And [she was making these statements] when she was very highly intoxicated. And [Shannon] isn't someone [who Mashburn] knows [to be] a problem in Selawik. This is someone who's generally a very quiet person. So it was out of character, and she repeated it with enough detail that [Mashburn] thought, "Well, maybe there's something here."
As noted before, Snyder's attorney did not object to any of Mashburn's testimony. Because the testimony was relevant for a limited purpose, Snyder's attorney might well have asked for a cautionary or limiting instruction regarding the testimony. But she did not.
Given that this testimony was relevant to the issue of why Mashburn informed the state troopers of Shannon Davis's allegations, and given the fact that it was fairly clear that Mashburn was not vouching for the complete truthfulness of Shannon Davis's statements to him, it was not plain error for the trial judge to allow Mashburn to give this testimony in the absence of any objection.
Snyder next argues that it was plain error, even in the absence of any objection, for the trial judge to allow the prosecutor to begin her rebuttal summation with these words: "Did you believe Shannon Davis? You know, I thought she made a very believable witness, but you are the triers of fact."
Attorneys are not allowed to assert a personal belief in the truthfulness of a witness's testimony. See Alaska Professional Conduct Rule 3.4(e). But the primary rationale of this prohibition is to stop attorneys from asserting or insinuating that their case is supported by information outside the evidence presented to the jury at trial. As the Alaska Supreme Court explained in Marrone v. State, "[I]t is not misconduct on the part of the prosecuting attorney . . . to comment upon the credibility . . . of . . . witnesses [if the prosecutor's comments are] based on the evidence and facts properly before the jury." 359 P.2d 969, 984 (Alaska 1961).
Although the beginning sentences of the prosecutor's summation might be criticized on this score, the several paragraphs that followed these two challenged sentences were entirely devoted to a review of the evidence in the case, and to an explanation of why that evidence supported the conclusion that Shannon Davis and her parents were telling the truth. This remainder of the prosecutor's summation was entirely proper.
Moreover, as we noted in Heaps v. State, 30 P.3d 109, 117 (Alaska App. 2001), when the challenged portion of a prosecutor's summation "constitute[s] only a few moments of [a] lengthy summation . . ., our duty is to evaluate the likely effect of those remarks w hen they are viewed in the context of the prosecutor's entire summation." In Snyder's case, when we assess the two challenged sentences in light of the prosecutor's summation as a whole, we readily conclude that the trial judge did not commit plain error when, in the absence of any objection, he allowed the prosecutor to engage in this argument. Conclusion
The judgement of the superior court is AFFIRMED.