Opinion
Court of Appeals No. A-11293 No. 6190
06-03-2015
LARRY EUGENE CLARK, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: David D. Reineke, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, 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. Trial Court No. 3PA-11-271 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Palmer, Gregory Heath, Judge. Appearances: David D. Reineke, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, and Allard and Kossler, Judges. Judge ALLARD.
Larry Eugene Clark was convicted of third-degree assault and third-degree criminal mischief based on evidence that he broke the windows of his wife's minivan while she and four of their children were sitting inside.
Five months after trial, Clark's wife told the defense attorney that she lied when she said she and the children were inside the minivan when Clark broke the windows. Based on this unsworn recantation, the attorney filed a motion for a new trial, which the superior court denied.
On appeal, Clark argues that the superior court should have held an evidentiary hearing to determine the credibility of his wife's recantation (even though no evidentiary hearing was requested). Clark also contends that the court applied the wrong legal standard in denying his motion. We conclude that, given the deficiencies of Clark's pleadings, the trial court could properly deny the motion without holding a hearing. We also conclude that when the court's order is read as a whole, it is clear that the court applied the correct legal standard in denying Clark's motion for a new trial.
Clark also argues that the superior court abused its discretion by admitting evidence at his trial that he assaulted his ex-wife thirteen years earlier. The State offered this evidence to show that Clark had a propensity to assault his domestic partners when they threatened to leave him. We conclude that any error in admitting this evidence was harmless given the limited manner in which the evidence was introduced and the strength of the State's other evidence against Clark.
We accordingly affirm Clark's convictions.
Facts and proceedings
On the evening of February 1, 2011, a neighbor called the Alaska State Troopers to report that Larry Clark was intoxicated and preventing his wife, Margie Thompson, from leaving the couple's Wasilla home. Two troopers responded to the call, and when they approached Clark's house, they saw Thompson and four children running away from the house, crying. Thompson was crying so hard that it was difficult to understand what she was saying.
The troopers then heard what they thought were gunshots, but when they approached the house, they saw Clark in the driveway using a tire iron to hit the windshield of a minivan. All of the minivan's windows had been broken and there were numerous tire iron sized holes in the front windshield. There was blood on Clark's hands, on the ground, and on a tire lying near the minivan. When the troopers arrested Clark, he smelled of alcohol.
Thompson and the children later told the police that Clark had begun breaking out the windows of the minivan with a tire while they were inside it.
Clark was charged with three counts of third-degree assault for recklessly placing Thompson and two of the children in fear of imminent serious physical injury by means of a dangerous instrument; (there were no charges related to the two other children in the minivan). Clark was also charged with third-degree criminal mischief for breaking the minivan's windows.
At trial, Thompson and the four children all testified that they were in the minivan when Clark began smashing its windows with a tire. According to their testimony, Thompson and the youngest child were in the front seats, while the other three children were further back in the minivan. They testified that Clark began by smashing the minivan's front windows (where Thompson and the youngest child were sitting), but that when he moved to smashing the driver's side window, Thompson and the children were able to escape through the passenger side sliding door.
The troopers testified that Thompson and the children were crying and hysterical when they encountered them. The troopers also testified that by the time they found Clark, all of the windows in the minivan had been broken.
At trial, Clark conceded that he was guilty of criminal mischief for smashing the windows, but he argued that he was not guilty of any of the assault charges because he claimed that Thompson and the children were not in the minivan at the time he was smashing the windows (and therefore were not in fear of imminent serious physical injury). In closing argument, Clark's attorney pointed out that there was broken glass all over the minivan seats and argued that the glass would not have been there if Thompson and the children were sitting in the van when he broke the windows. The prosecutor responded to this argument by pointing out that Clark continued to break the windows of the minivan after Thompson and the children got out of it.
Following deliberations, the jury convicted Clark of criminal mischief and third-degree assault involving Thompson. However, the jury acquitted Clark of the two assault charges involving the two children (both of whom had been sitting further back in the minivan).
Why we conclude that any error in admitting evidence of Clark's 1998 assault was harmless
Under Alaska Evidence Rule 404(b)(4), evidence of a defendant's prior acts of domestic violence is admissible to prove that the defendant has a character trait for domestic violence and acted true to that character during the incident in question. But the trial judge must act as a gatekeeper when asked to admit this type of evidence to ensure that the defendant "is tried for the crime currently charged — not for things that the defendant might have done on other occasions, and not for the kind of person that the defendant might be."
Bingaman v. State, 76 P.3d 398, 402, 414 (Alaska App. 2003).
Id. at 414; see also Alaska Evid. R. 402; Alaska Evid. R. 403 ("Although relevant, evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.").
Prior to trial, the prosecutor filed a motion under Alaska Evidence Rule 404(b)(4), seeking to admit evidence of Clark's 1998 assault on his ex-wife, Dorothy Clark. During this assault, Clark held a knife to Dorothy's throat in front of her child after she (Dorothy) threatened to leave Clark. The prosecutor argued that this prior assault was relevant because it showed that Clark's response to a romantic partner's threat to leave him was to turn violent.
Clark objected to this evidence, arguing that it was of marginal probative value because it involved a different victim and took place thirteen years before the current incident. Clark also argued that the evidence was highly prejudicial because the facts of the prior case were "substantially worse" than the current case.
The superior court allowed the prosecutor to introduce the evidence over Clark's objection. At trial, Dorothy Clark took the stand and briefly described the assault. The prosecutor also briefly referred to the prior assault in her closing.
On appeal, Clark argues that the superior court erred in allowing this evidence in his trial and failed to properly apply the Bingaman factors.
In Bingaman v. State, we articulated a number of factors trial courts should consider in deciding whether evidence of the defendant's other acts of domestic violence should be admitted under Evidence Rule 404(b)(4). These factors include: the relevance of this character trait to any material issue in the case, the degree of relevance, and the strength of the other acts tendency to prove the relevant character trait. We emphasized that when applying these factors, the trial court "should analyze whether the defendant's other acts demonstrate the same type of situational behavior as the crime currently charged" and we also emphasized that judges should take into account the recency or remoteness of the other acts.
Bingaman, 76 P.3d at 415-16.
Id. at 415.
Id.
We agree with Clark that the superior court's Bingaman analysis was overly abbreviated and that the prior domestic violence was neither recent nor particularly similar to the conduct charged in this case. But we also conclude that it is unnecessary for us to resolve whether the evidence of Clark's prior domestic violence was properly admitted under Bingaman because even if it was not, the error was harmless in this case.
At trial, Dorothy Clark's testimony was very brief and confusing. During closing, the prosecutor referred to Dorothy Clark's testimony only once in passing, and otherwise focused the argument entirely on the testimony of Thompson and her children, and the reasons why the jury should credit their account of what happened. The overall focus of the trial was likewise on the credibility of Thompson and the children and whether they were inside the minivan during the time Clark was breaking its windows. Thus, given the nature of Dorothy Clark's actual testimony and the negligible role it played within the State's case, we conclude that, even if erroneously admitted, this evidence did not appreciably affect the jury's verdict in this case.
See Love v. State, 457 P.2d 622, 634 (Alaska 1969).
Why we find no error in the superior court's order denying Clark's motion for a new trial
Following Clark's trial, Thompson's defense attorney learned that Thompson had apparently made statements in an unrelated child-in-need-of-aid proceeding that appeared to contradict her testimony at Clark's trial. After learning this, Clark's attorney filed a motion for a new trial. The motion explained that the attorney was in the process of moving to unseal the relevant records from the child-in-need-of-aid proceeding and that the attorney would present the evidence of Thompson's recantation to the court when he received it.
The superior court continued sentencing and set a deadline for Clark's attorney to provide the factual basis for the new trial. When Clark's attorney failed to comply with that deadline, the court denied the motion for a new trial.
Clark's attorney then moved for reconsideration, attaching a recording of a recent interview with Thompson that was conducted by Clark's defense attorney and an investigator from the Public Defender Agency.
In the interview, Thompson stated that her trial testimony was not true and that she and the children were standing outside the minivan — "probably about ten feet" away — when Clark started breaking the windows in the minivan. Thompson stated that she and the children "walked" away when this happened and that she was not afraid that Clark would hurt her. She said she lied at trial because she was "angry" at Clark and "wanted to punish him." She also said that she was drunk when she talked to the police and drunk when she testified at trial. At the end of the interview, Thompson told the defense investigator that "I just want this over and done with and [to] get our lives back together."
Thompson's statements in the interview were not made under oath. Nor did she provide an affidavit stating under oath that the statements in the interview were true or that she would be willing to repeat these statements under oath at a retrial, if one was granted.
The superior court denied Clark's motion for reconsideration in a written order. The court found that Clark had failed to meet his burden of demonstrating that the newly discovered evidence was such that it would probably produce an acquittal at a retrial. In making this finding, the court focused on the fact that Thompson's new statements were inconsistent with her prior statements to the police, inconsistent with her prior sworn testimony at grand jury and at trial, inconsistent with the children's testimony, and inconsistent with the troopers' observations at the scene.
On appeal, Clark renews his argument that he is entitled to a new trial based on Thompson's recorded recantation. We disagree.
Under Alaska Criminal Rule 33(a), a court may grant a new trial to a defendant "if required in the interest of justice." A new trial is warranted based on newly discovered evidence only if: (1) the evidence is, in fact, newly discovered; (2) the motion alleges facts from which the court may infer that the party filing the motion was diligent; (3) the new evidence is not merely cumulative or impeaching; (4) the new evidence is material to the issues involved; and (5) the new evidence is such that at a new trial, it would probably produce an acquittal.
Salinas v. State, 373 P.2d 512, 514 (Alaska 1962).
We agree with the superior court that Thompson's recantation of her trial testimony was insufficient to meet Clark's burden on this last requirement. As the superior court noted, the unsworn recantation was inconsistent with all of Thompson's prior statements (both sworn and unsworn), inconsistent with the children's prior sworn testimony, and inconsistent with the troopers' testimony. In addition, there was no explanation about why the children would have lied at trial and in their prior statements — nor was there any indication that the children's testimony would be any different from their original testimony if the case were retried. Given all this, we agree with the superior court that Clark failed to show that Thompson's unsworn recantation "would probably produce an acquittal" at a new trial.
On appeal, Clark argues that the court should have held an evidentiary hearing to determine whether, notwithstanding the inconsistencies with the children's testimony and the troopers' observations, Thompson's recantation was nevertheless credible.
We agree that as a general matter, a court should hold an evidentiary hearing before dismissing a material witness's recantation as not credible. But Clark never requested an evidentiary hearing in this case. Nor did he provide the court with any reason to believe that Thompson would appear at an evidentiary hearing and repeat her unsworn statements under oath. Given these circumstances, we conclude that the court did not err in failing to sua sponte hold an evidentiary hearing.
See Dunbar v. State, 522 P.2d 158, 160 (Alaska 1974).
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We acknowledge that at one point in the written order, the judge said, "[e]ven if the court finds Thompson's statements to be credible, and accepts the new evidence as true, it is not probable that this new evidence would produce an acquittal." Clark reads this statement as indicating that the judge believed that even if Thompson's recantation was true, and Clark was therefore innocent of the crime for which he was convicted, Clark would still not be entitled to a new trial because the judge believed that the jury at a retrial would likely still believe the children's (false) testimony over Thompson's (true) testimony.
We agree with Clark that, read in this manner, the judge's analysis would be clearly wrong. If the judge actually believed that Thompson's recantation was true (and that Clark was therefore factually innocent of the crime), the judge would be required to grant Clark a new trial.
But we disagree with Clark that this is what the judge meant by that sentence. Read in the larger context of the order, it is clear that the judge meant that however credible Thompson's unsworn recantation might appear in isolation, it was not credible when compared to the other evidence in the case, including the children's prior sworn testimony and Thompson's own prior statements, both sworn and unsworn.
We therefore reject Clark's contention that the court applied the wrong legal analysis to his motion for new trial and we affirm the court's decision to deny Clark's motion for a new trial.
Conclusion
We AFFIRM the superior court's judgment.