Opinion
Court of Appeals No. A-9966.
May 20, 2009.
Appeal from the Superior Court, Third Judicial District, Anchorage, John E. Suddock, Judge, Trial Court No. 3AN-05-6795 CR.
Wallace H. Tetlow, Wilkerson Hozubin, Anchorage, for Appellant.
Tamara de Lucia, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Juneau, Attorney General, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
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 precedent for any proposition of law.
MEMORANDUM OPINION AND JUDGMENT
Tristan Curry raises three issues in this appeal: (1) that the trial judge should have declared a mistrial when the prosecution referred to Curry's failure to appear for a police interview, (2) that the judge should have prevented the prosecutor from presenting testimony that sex offenders "groom" their victims, and (3) that the judge gave a flawed response when the jury asked about the consequences of a jury impasse. But Curry did not object on the basis of any of these issues during his trial. We conclude that Curry has failed to show that the trial judge committed plain error.
Background
Tristan and Jodi Curry began to provide day care services for A.L. and her sister when they were six and seven years old. Tristan Curry sexually molested the two sisters repeatedly over the following seven years while they were entrusted to his care. Similarly, C.W.'s mother left her daughter with the Currys for two nights while she worked as a night-shift nurse at the Alask a Native Hospital. When C.W .'s mother wanted her daughter to spend a third night at the Currys', C.W. handed her mother a note saying that Tristan Curry had molested her.
Curry was convicted after a jury trial on eight counts of second-degree sexual abuse of a minor for his misconduct against A.L. and one count of second-degree sexual abuse of a minor for his misconduct against C.W.
AS 11.41.436(a)(5)(B).
Id.
Curry did not object at trial regarding any of the issues he raises in this appeal, so he must now establish that the judge committed plain error. We find "plain error" only if the error should have been apparent to any competent judge or lawyer, if the party who now claims error had no apparent tactical reason for failing to object, and if the error was so unfair that failure to correct it would constitute manifest injustice. The References to Curry's Failure to Appear for Police Questioning
See, e.g., Winkler v. State, 580 P.2d 1167, 1173 (Alaska 1978); Clark v. State, 953 P.2d 159, 165 (Alaska App. 1998).
Burton v. State, 180 P.3d 964, 968 (Alaska App. 2008).
The prosecutor's opening statement described Curry's initial phone call to the police department after he became aware of the investigation. Specifically, the prosecutor mentioned how Curry had told Detective Cynthia Bradley that he needed to come in and talk to the police about what happened because there w as some truth to A.L.'s reports. The prosecutor emphasized that Curry said that he would come to the station in about an hour, but he never came in.
Later, when Bradley testified, the prosecutor played a tape recording of her phone conversation with Curry. Bradley testified that she waited to meet with Curry, but he never came to the police station. On cross-examination, however, Bradley admitted that people who are charged with crimes will often obtain a lawyer and that she knew that lawyers normally instruct their clients to not talk to anyone about their case.
Superior Court Judge John E. Suddock allowed the jury to break following Bradley's cross-examination. After discussing other matters, Judge Suddock stated his concern that normally a police officer should not be allowed to testify that the defendant refused to come in for an interview, because that would improperly suggest that the defendant was under some obligation to do so. In response, Curry's trial attorney stated that he "certainly saw that, . . . but . . . determined not to object as much as simply just to clarify with the officer what undoubtedly . . . happens in those situations."
Consequently, Judge Suddock accepted that Curry's trial attorney had made a tactical decision not to object to this testimony. But the judge decided to preclude the State from arguing that Curry's failure to come in for further questioning was evidence of his consciousness of guilt. When the jury returned from their break, the judge gave them a cautionary instruction directing them to disregard the evidence that Curry did not go to the police station to continue the interview.
Curry now contends that Judge Suddock should have granted a mistrial sua sponte based on the prosecution's references to Curry's failure to come in to the police station for an interview. But the admission of these references was not plain error because Curry's attorney admitted that, for tactical reasons, he consciously decided not to object. Curry's counsel admitted that he simply decided to cross-examine the officer to clarify that the defendant was acting on the advice of counsel.
In addition, it is not obvious that this evidence was inadmissible under current Alaska law. We have previously noted that the United States Supreme Court has held that the Federal Constitution does not necessarily prohibit comment on a defendant's prearrest silence. And even if there were a recognized prearrest right to remain silent under the Alaska constitution, Judge Suddock's cautionary instruction appears to have eliminated any potential prejudice.
Bloomstrand v. State, 656 P.2d 584, 587 (Alaska App. 1982) (citing Jenkins v. Anderson, 447 U.S. 231, 100 S. Ct. 2124, 65 L. Ed 2d 86 (1980) (allowing admission of prearrest silence for impeachment)); see also Dyer v. State, 666 P.2d 438, 447 (Alaska App. 1983) (allowing admission of evidence of prearrest flight to show consciousness of guilt).
Curry also argues, based on our decision in Silvernail v. State, that the evidence of his failure to meet with Officer Bradley was inadmissible under Evidence Rule 403. But unlike the defendant in Silvernail, Curry did not bring this issue to the attention of the trial court. Rather, because of Ward's explicitly stated decision to not object, the trial judge had no indication that this line of inquiry was in dispute.
777 P.2d 1169 (Alaska App. 1989).
Id. at 1174-76.
Id. at 1174 ("Although the evidentiary issue that Silvernail argues on appeal was not specifically raised below, his objection on constitutional grounds was nonetheless sufficient to call the trial court's attention to the fact that this line of inquiry was disputed.").
In summary, Curry's attorney made a tactical decision not to object to references to Curry's prearrest behavior that were only arguably inadmissible. And Judge Suddock's decision to issue a cautionary instruction eliminated any prejudice to Curry. Accordingly, there was no plain error.
The Testimony Concerning Pedophiles and "Grooming"
O n direct examination, the prosecutor established that Officer Steven Boltz specialized in child sexual-abuse investigations. Officer Boltz testified that pedophiles want children and their parents to trust them so that they are able to be alone with the children. Boltz opined that a pedophile may give children compliments, extra privileges, and gifts, and take them on excursions so that the children will feel comfortable with them. Boltz testified that this "grooming" can affect a child's motivation to report abuse because the child will be reluctant to lose these gifts and rewards.
Curry's trial attorney did not object to this line of questioning, but instead elicited Detective Bradley's concession that a person charged with a child sex offense usually will try to ingratiate himself with the child's parents. The apparent aim of this cross-examination was to show that Curry did not fit the profile described by Officer Boltz.
Curry now contends that Officer Boltz's testimony about grooming was impermissible "sex-offender profile testimony" under this court's opinion in Haakanson v. State. Haakanson held "that the prosecution may not introduce a profile to show that the defendant is more likely to have committed an offense because the defendant fits within that profile."
760 P.2d 1030, 1035-36 (Alaska App. 1988).
Id. at 1036.
But similar testimony is admissible for another purpose under Bostic v. State, where we recognized "that expert testimony generally describing characteristic behavior of sexually abused children could serve a legitimate purpose when offered to negate a claim or inference that the complaining witness' behavior in a given case was inconsistent with a truthful accusation of sexual abuse."
772 P.2d 1089 (Alaska App. 1989), rev'd on other grounds, 805 P.2d 344 (Alaska 1991).
Id. at 1096.
Similar to the defendant in Bostic, Curry argued that the children under his care behaved like happy family members rather than victims of sexual abuse. Curry testified about his good relationship with the children and introduced eighty-two photographs of family events and parties where both Curry and the children appeared to be in cheerful spirits. And Curry argued that the allegations of sexual abuse were likely untrue given that the girls kept returning to his home without complaining about any such abuse.
Boltz's testimony about grooming thus provided an explanation about why the victims might have been hesitant to report the sexual abuse they suffered. Given Curry's litigation strategy, Boltz's testimony was admissible. Curry, therefore, has not established plain error because the admission of this evidence w as not unfairly prejudicial.
Judge Suddock's Reaction to the Jury Impasse
Approximately two hours after the jury began deliberating, the jury foreperson issued a note to Judge Suddock stating that the jurors "wish[ed] to know how to proceed if [they were] unable to reach a decision." In response, both trial attorneys requested that the superior court tell the jury to recess for the evening and return for deliberations the next morning. In particular, Curry's attorney agreed with Judge Suddock that "as a matter of fact, they have not actually been deliberating for that long, . . . so we would agree that that instruction should be reiterated and have them continue the deliberation."
Judge Suddock then instructed the jury as follows:
Here is my dilemma. You have been deliberating since — you had some lunch, 1:30 or so. As jury deliberations go, it's really not a very long time. And so the natural course of a judge in my situation is to say to you, you know, the Scooter Libby jury in Washington, D.C. went for ten days. I'm not going to do that to you. My inclination is to say to you we've told you all along we want a collegial or joint decision. We've given you a jury instruction that says that you should discuss these matters amongst yourselves. That you shouldn't make an emphatic assertion early on. That you should be willing to change your view if you're convinced it is erroneous but you should not give up a believed position simply for the — to accommodate the court or the process or simply for the purpose of reaching a verdict. So you're given a — the mixed message of be flexible, be reasonable, listen to your peers, look at the evidence in a new light, try to reach a collegial decision, and you're also given the instruction don't throw in the towel if you really have a firmly held belief simply for the purpose of reading a verdict. All that said, my instinct is to say why don't you take the night off, come back at 8:30 tomorrow morning, and deliberate some more in the freshness of the morning.
Curry now argues that Judge Suddock's instruction was an unduly coercive "dynamite charge" of the type disapproved in Fields v. State.
487 P.2d 831, 835-41 (Alaska 1971), overruled on other grounds by State v. Patterson, 740 P.2d 944 (Alaska 1987).
But Curry's reliance on Fields is misplaced because no coercive elements were present in Judge Suddock's instruction. Judge Suddock's charges did not emphasize the duty of the minority jurors to reconsider their views without a like admonition to the majority or coercively threaten the jury with the prospect of indefinite service.
See id. at 836.
See id. at 839.
The jurors in Curry's case had only been deliberating for about two hours when they delivered the note to Judge Suddock asking what they should do if they were unable to reach a decision. Judge Suddock's charge placed no emphasis on the minority jurors compared to those in the majority. And Judge Suddock expressly told the jury that he would not keep them deliberating for an indefinitely long period of time. We therefore find no error in Judge Suddock's instruction.
We find no plain error on the issues that Curry raises in this appeal. We therefore AFFIRM the superior court's judgment.