Opinion
Court of Appeals No. A-8361.
December 15, 2004.
Appeal from the Superior Court, First Judicial District, Ketchikan, Michael A. Thompson, Judge, Trial Court No. 1KE-01-1326 Cr.
Michael Cohn, Anchorage, for the Appellant.
Kenneth J. Diemer, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION
Bobby R. Dupree appeals his conviction for first-degree sexual assault. He argues that his trial was flawed by various evidentiary and procedural errors. For the reasons explained here, we conclude that some of these alleged errors were not errors at all. With respect to the remainder of the alleged errors, Dupree's trial attorney did not object, and we conclude that Dupree has failed to show that plain error occurred. We therefore affirm Dupree's conviction.
AS 11.41.410(a)(1).
Underlying facts
According to the State's evidence, Dupree met T.G., the victim of the sexual assault, in a Ketchikan bar. Dupree and T.G. left the bar together in a taxi. The taxi dropped them off in a parking lot. After the taxi left, Dupree grabbed T.G. He told her that he had just been released from prison, and that he was a dangerous man. Dupree then sexually assaulted T.G.
Dupree testified that he had indeed had sexual relations with T.G. in the parking lot, but he asserted that the sex was consensual. Dupree explained that the sex occurred in the parking lot because neither he nor T.G. had the money to pay for a hotel room.
The jury resolved this conflicting evidence against Dupree and found him guilty of sexual assault.
Admissibility of the victim's testimony that Dupree told her that he had just been released from prison
At Dupree's trial, the prosecutor wished to introduce T.G.'s testimony that Dupree had intimidated her by his statements that he had just been released from prison and that he was a dangerous man. The prosecutor also wanted to introduce corroborative evidence that Dupree had in fact been in prison.
The trial judge, Superior Court Judge Michael A. Thompson, recognized that this evidence was relevant to T.G.'s state of mind — i.e., relevant to support the State's theory that she was coerced to engage in sexual penetration even though she did not offer significant physical resistance. For this reason, Judge Thompson ruled that T.G. would be allowed to testify that Dupree had told her that he had just been released from prison, but the judge refused to allow the State to introduce evidence that Dupree had in fact recently been released from prison.
Dupree's trial attorney did not object to this ruling. But on appeal, Dupree argues that this ruling was plain error — that it was manifestly improper and unfair to allow the jury to hear evidence suggesting that Dupree had previously been in prison.
We find no error at all. Judge Thompson could reasonably conclude that Dupree's statement that he had just been released from prison was relevant to the jury's assessment of T.G.'s state of mind during the episode being litigated. The fact that Dupree said this to T.G. just before the sexual assault provided a potential basis for finding that T.G. was coerced to engage in sexual penetration.
Compare Russell v. State, 934 P.2d 1335, 1341 (Alaska App. 1997) (holding that evidence of the defendant's prior assaults on the victim was relevant to show why the victim did not physically resist the defendant's sexual assault); United States v. Hathaway, 740 F.2d 1419, 1424-25 (7th Cir. 1984) (holding that evidence of a motorcycle gang's lifestyle was relevant to show why a kidnaping victim might have been intimidated and deterred from trying to escape).
It is true, as Dupree asserts on appeal, that this evidence carried a potential for unfair prejudice. But Judge Thompson recognized this; he allowed T.G. to testify that Dupree had said that he had been in prison, but he refused to allow the State to present evidence corroborating the truth of Dupree's statement. We find no error in Judge Thompson's ruling.
Admissibility of the emergency room nurse's testimony that T.G. said that she had been sexually assaulted
After T.G. told the authorities that she had been sexually assaulted, she was taken to the emergency room at Ketchikan General Hospital. There, she was interviewed and examined by Nurse Beverly Crum. At Dupree's trial, Nurse Crum was allowed to testify (over the defense attorney's hearsay objection) that T.G. reported that she had been sexually assaulted. Judge Thompson overruled the hearsay objection because he concluded that Crum's testimony regarding T.G.'s out-of-court statement was admissible under Evidence Rule 803(4). This rule creates a hearsay exception for "[s]tatements made for purposes of medical diagnosis or treatment . . . [which] describ[e] . . . the inception or general character of the cause or external source" of the patient's "past or present symptoms, pain, or sensations".
On appeal, Dupree concedes that Crum could properly testify about T.G.'s physical injuries, but Dupree argues that T.G.'s statement that she had been assaulted should have been excluded because it was "not necessary for medical diagnosis".
We disagree. When medical professionals are trying to determine the proper types of examination and treatment that a patient might need, their decision will obviously be affected by the fact that the patient claims to have been sexually assaulted (or, conversely, denies being sexually assaulted).
Both the Commentary to Evidence Rule 803(4) and Alaska case law on this issue demonstrate that the dividing line is drawn between (1) a patient's statements concerning the cause of their injuries or pain (statements which are admissible under the rule) and (2) a patient's statements concerning who is at fault for causing the injuries or pain (statements which are generally deemed inadmissible). The Commentary to Rule 803(4), first paragraph, explains:
[This rule authorizes the admission of] statements as to causation [if] reasonably pertinent to [diagnosis or treatment]. . . . Thus, a patient's statement that he was struck by an automobile would qualify [for admission,] but not [the patient's] statement that the car was driven through a red light.
The rule stated in this Commentary is reflected in Alaska case law. In Johnson v. State, 579 P.2d 20 (Alaska 1978), our supreme court ruled that a victim's statements that she had received her injuries in a beating were admissible under Rule 803(4), but not the victim's statements concerning the identity of the person who did the beating:
Statements of a patient as to presently existing body conditions are generally admitted as evidence of the facts stated because there is a high likelihood of truthfulness resulting from the patient's belief that the doctor will rely on such statements in his diagnosis and treatment. Whe[n] statements going to the cause of a patient's condition [contain] information desirable for diagnosis and treatment, they are also admissible based on the same indicia of reliability. Thus, the trial court was correct in admitting Mrs. Johnson's statements as to the general cause of her condition [ i.e., that she had received her injuries as a result of a beating]. [Her] statements, however, also revealed the identity of her alleged assailant. This information did not relate to diagnosis or treatment, and as to that portion of the statements, the court's denial of the motion to suppress was erroneous. The situation presents the same distinction identified by McCormick and the commentary on the Federal Rules of Evidence, between general statements made going to the cause of injury which are important to diagnosis and treatment, and statements entering the realm of fixing fault. Since statements fixing fault and indicating the identity of an assailant are not relevant to medical diagnosis or treatment, they lack assurances of reliability and should be excluded.
Johnson, 579 P.2d at 22 (footnotes omitted).
(Since the Johnson decision, litigation concerning the scope of Evidence Rule 803(4) has centered on whether this rule ever authorizes hearsay testimony concerning the victim's identification of the assailant, but no court decision has questioned the admissibility of testimony concerning the victim's assertion that an assault occurred. See Sluka v. State, 717 P.2d 394, 399 n. 3 (Alaska App. 1986), and the cases discussed in State v. Nollner, 749 P.2d 905, 908 n. 3 (Alaska App. 1988).)
We therefore conclude that Judge Thompson committed no error when he allowed Nurse Crum to testify that T.G. reported that she had been assaulted.
Admissibility of the emergency room records which also reflected that T.G. said that she had been sexually assaulted
During the defense attorney's cross-examination of Nurse Crum, the defense attorney questioned her concerning certain entries in the emergency room records from T.G.'s visit to the hospital. Later, during re-direct examination, the prosecutor offered those hospital records into evidence. Apparently, most of the entries in these records were made personally by Nurse Crum, but other entries were made by a doctor who also participated in the examination.
The first page of the records contained an affidavit from Stacy Steinmark, a custodian of records at Ketchikan General Hospital, attesting that the packet of documents consisted of copies of records kept by the hospital in the normal course of business.
"[I,] Stacy Steinmark, being first duly sworn, [state that] I am a custodian of the records of Ketchikan General Hospital. Attached to this affidavit are [the Hospital's] records. . . . These records are kept by [the Hospital] in the regular course of business, and it is the regular course of business for an employee or representative, with knowledge of the act, event, condition, opinion, or diagnosis, or from information transmitted by a person with knowledge of these matters, to make the attached records. These attached records were made at or near the time or reasonably soon thereafter and were made by an employee or representative, with knowledge of the act, event, condition, opinion, or diagnosis, or from information transmitted by a person with knowledge of these matters. The attached records are duplicates of the original records."
Dupree's trial attorney objected that these records were hearsay. He further objected that the doctor who had made some of the entries in these records was not present to testify concerning those entries. The prosecutor replied that the hospital records were admissible as business records under Evidence Rule 803(6), but Dupree's attorney disagreed:
Defense Attorney: I don't think . . . [this] exhibit can be authenticated by [Nurse Crum], when a doctor [did] the examination and sign[ed] the form. [And] [t]he fact that there's . . . an [affidavit] affix[ed] to the front of the form, somebody's opinion that it's a business record, . . . I don't think that that [affidavit], in and of itself, makes the document . . . self-authenticating.
After listening to the lawyers' competing arguments, Judge Thompson ruled that most of the emergency room documents were admissible under Evidence Rule 803(6), the business records exception to the hearsay rule. However, Judge Thompson declined to admit the middle portion of the records — a portion entitled "sexual assault flow form" — because the judge concluded that the information recorded in this portion of the records was not prepared for hospital use, but rather as an investigative tool for the police. (This last part of Judge Thompson's ruling is not challenged on appeal, and we express no opinion as to whether the "sexual assault flow form" was admissible as a business record.)
On appeal, Dupree renews his objection to the emergency room records. He points out that these records are hearsay, and that the examining doctor who made some of the entries did not testify at trial. This is true. But Evidence Rule 803(6) creates a hearsay exception for business records like the emergency room records in this case. The point of this hearsay exception is to allow litigants to introduce business records without having to obtain the testimony of each person who made entries in those records or who personally observed the events or conditions described in those records. Thus, if the records met the criteria for admission as business records under Rule 803(6), it was not necessary to have the doctor testify to the accuracy of the entries he or she made.
Evidence Rule 803(6) states that the hearsay rule does not exclude:
A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnos[e]s, made at or near the time by, or from information transmitted by, a person with knowledge acquired of a regularly conducted business activity, and if it was the regular practice of that business activity to make and keep the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for pro fit.
Evidence Rule 803(6) requires authentication of business records through the testimony of a records custodian "or other qualified person". But Evidence Rule 902(11) states that the records custodian can provide this testimony in the form of an affidavit such as the one that accompanied the records in this case.
Evidence Rule 902 (11) states that "[e]xtrinsic evidence of authenticity as a condition [of] admissibility is not required with respect to the following":
Certified Records of Regularly Conducted Activity. The original or a duplicate of a record of regularly conducted activity, within the scope of Rule 803(6), which the custodian thereof or another qualified person certifies under penalty of perjury (i) was made at or near the time of the occurrence of the matter set forth, by (or from information transmitted by) a person with knowledge of those matters, (ii) is kept in the course of regularly conducted activity and (iii) was made by the regularly conducted activity as a regular practice, unless the source of the information or the method of circumstances or preparation indicate lack of trustworthiness.
Moreover, Nurse Crum appears to have been "[an]other qualified person" for purposes of Rule 803(6)'s authentication requirement. Crum identified the emergency room records, she stated that she had personally filled out many of the entries in those records, and she testified that the packet of documents was "a fair and accurate copy of [T.G.'s] emergency room record".
For these reasons, we conclude that Judge Thompson correctly admitted the emergency room records under the business records exception to the hearsay rule.
The purported evidence that T.G. had made a prior false accusation of sexual abuse — and whether the trial judge's failure to force Dupree's attorney to offer this evidence, or at least argue its admissibility, constituted plain error
Dupree claims that his trial attorney knew of evidence indicating that T.G. had falsely accused a woman, A.F., of sexually abusing her own ( i.e., A.F.'s) daughter. Dupree further claims that his trial attorney's failure to offer this evidence constituted "plain error".
As we explain here, the record does not support Dupree's assertion that T.G. had falsely accused this other woman of sexual abuse. Moreover, even if this evidence did exist, it is not clear that it would have been admissible. And finally, even if the evidence existed and was admissible, the trial attorney's failure to offer this evidence does not constitute plain error. The term "plain error" refers to situations that the trial judge was aware of and could have done something about. There is no plain error when, unbeknownst to the judge, an attorney makes decisions based on a misunderstanding of the law or the facts, even when the attorney's misunderstanding amounts to incompetence.
(a) The legal background of this controversy
In Covington v. State, 703 P.2d 436 (Alaska App. 1985), this Court ruled that a defendant charged with sexual assault or sexual abuse was entitled to introduce evidence that the complaining witness had, at other times, made false accusations of sexual assault or abuse — but only if, as a foundational matter, the defendant established the falsity of the prior accusations, "as, for example, where the charges had somehow been disproved or where the witness had conceded their falsity".
Covington, 703 P.2d at 441-42.
Seventeen years later, in Morgan v. State, 54 P.3d 332 (Alaska App. 2002), we clarified our holding in Covington. The trial judge in Morgan had interpreted Covington to mean that evidence of a prior false complaint could be introduced only if the complaining witness conceded, under oath, that the accusation was false, or if a court had formally adjudicated the accusation to be false. We concluded that "this [was] too narrow a reading of Covington". We held instead that this evidence should be admitted if, as a foundational matter, the defendant convinced the trial judge by a preponderance of the evidence that the complaining witness had made a knowingly false complaint of sexual assault or sexual abuse.
Morgan, 54 P.3d at 337.
Id.
Id. at 338-39.
Dupree's trial took place in mid-January 2002, eight months before we issued our decision in Morgan. (b) The factual background of this controversy
At the beginning of the second day of Dupree's trial, a representative of the Ketchikan women's shelter appeared in court to contest a subpoena that Dupree's attorney had served on one of the shelter's employees. From the ensuing discussion, it appears that, during a period when T.G. was living at the shelter, T.G. may have stated that another woman was engaging in sexual misconduct with her own daughter. The police investigated the matter, but no charges were ever filed.
Although the prosecuting attorney made comments indicating that T.G. may have been the one who brought this accusation to the attention of the authorities, the prosecutor's comments are not supported by the evidence. The police officer who investigated the case (Officer Carlos Rojas) testified that he "was investigating [a] report that was made to [him] by somebody else, [and] the name of [T.G.] was brought up in the investigation. And the two people that [he] spoke with, . . . they believed that [T.G.] was untruthful. . . ." (Emphasis added)
Our tentative language in the preceding two paragraphs — our use of the words "appears that", "may have", and "indicating" — is purposeful. The record on this entire issue is very sketchy. The sparseness of the record — the scarcity of any firm evidence regarding the underlying facts — is due to the fact that the parties never actually litigated the admissibility of this purported evidence of a prior false report.
Dupree's attorney repeatedly told the superior court that he had no intention of trying to prove that T.G. had made a prior false report of sexual abuse. Rather, he merely wanted the people involved in that prior investigation to testify under Evidence Rule 608(a) concerning their opinion of T.G.'s character for truthfulness, without mentioning any specific incident.
As a result, the defense attorney never made an offer of proof as to the precise facts of the prior investigation or T.G.'s role in it. No one ever testified or made an offer of proof regarding what T.G. may have said about the other woman's purported sexual misconduct. No one ever testified or made an offer of proof regarding the reasons why the case was never prosecuted. And, most important, Judge Thompson was never asked to make rulings on these issues.
(c) Dupree's argument on appeal
In his briefs to this Court, Dupree claims that his trial attorney had clear evidence (1) that T.G. had previously accused another woman of sexually abusing her own child, and (2) that this accusation was false. Dupree further claims that his trial attorney deliberately refrained from presenting this evidence because the attorney was laboring under a mistaken understanding of Covington — a mistaken understanding that was cleared up by our later decision in Morgan. From this, Dupree claims that his attorney committed plain error by declining to offer this evidence. We reject Dupree's argument for four reasons.
First, a mistake concerning the law is not plain error if the mistake was reasonable at the time. In Marrone v. State, 653 P.2d 672, 676 (Alaska App. 1982), this Court held that an error is not "plain" if reasonable judges could differ as to what the law required.
The interpretation of Covington that we adopted in Morgan was not self-evident. As shown by the trial judge's ruling in Morgan, and also by the fact that we engaged in a lengthy discussion of various competing rules of law in Morgan, it is clear that reasonable judges might — and did — disagree as to what Covington meant.
Moreover, the purported evidence in this case did not involve T.G.'s prior claim that she herself had been sexually assaulted or abused. Rather, Dupree claims that his attorney had evidence that T.G. had falsely accused another woman of sexually abusing her own child. Even after our decision in Morgan, it is not obvious that this sort of evidence would be admissible. Rather, Dupree is arguing for an extension of Morgan. Thus, even assuming that Dupree's trial attorney knew of the purported evidence and refrained from offering this evidence because of a mistakenly narrow interpretation of Covington, this would not be plain error.
Second, the record does not support Dupree's assertion that his trial attorney had clear evidence that T.G. had made a prior knowingly false complaint of sexual abuse. Even viewed in the light most favorable to Dupree, the record shows only that T.G. may have made statements that supported a report of sexual abuse made by someone else, and that the authorities ultimately decided not to pursue the case.
Further, even if we assume that the authorities decided not to prosecute the case because they concluded that the report of sexual abuse was false ( i.e., they concluded that the other woman had not abused her child), this does not prove that T.G.'s statements in support of that report were knowingly false — a requirement for admissibility under Morgan.
Third, the record of Dupree's trial clearly reveals that the defense attorney made a conscious decision not to offer this evidence: the attorney twice explicitly told Judge Thompson that he did not intend to offer this evidence. Dupree may now believe that his attorney's decision was mistaken, but the decision was clearly tactical and was not plainly incompetent.
See Willis v. State, 57 P.3d 688, 691 (Alaska App. 2002).
Fourth, even if we assume that all of the foregoing issues should be resolved in Dupree's favor — i.e., even if we assume that Dupree's trial attorney incompetently refrained from offering clearly admissible evidence of a prior false complaint of sexual abuse made by T.G. — this would still not establish plain error. The term "plain error" does not refer to an attorney's mistakes; rather, it refers to a judge's mistakes.
Our prior decisions have defined "plain error" as an act or omission that is "manifestly wrong, so wrong that any competent judge or attorney should have recognized the error and corrected it." But the crucial aspect of the plain error doctrine is that it focuses on what the judge should or should not have done.
Wolfe v. State, 24 P.3d 1252, 1256 (Alaska App. 2001); see also Allen v. State, 51 P.3d 949, 958 (Alaska App. 2002); Massey v. State, 771 P.2d 448, 453 (Alaska App. 1989); Carman v. State, 658 P.2d 131, 137 (Alaska App. 1983); Marrone v. State, 653 P.2d 672, 675-681 (Alaska App. 1982).
True, this Court has previously remarked that plain error and ineffective assistance of counsel are essentially two sides of the same coin:
If an error is so obvious and so prejudicial that an appellate court should recognize it as "plain error" on appeal, [then] experienced, competent trial counsel should recognize it and seek its correction in the trial court by a timely objection. A finding of plain error is therefore virtually the equivalent of a finding of ineffective assistance of counsel. Rarely will one exist in the absence of the other.
Potts v. State, 712 P.2d 385, 394 n. 11 (Alaska App. 1985).
But although a finding of plain error may be "virtually the equivalent of a finding of ineffective assistance of counsel", the converse is not true. There are many instances when, although an attorney may be acting incompetently, the attorney's incompetence (and any accompanying injustice) will not be obvious to the trial judge — and thus there will be no plain error.
This is the underlying premise of our decision in Barry v. State, where we held that claims of ineffective assistance of counsel must ordinarily be litigated in post-conviction relief proceedings rather than raised as claims of plain error on direct appeal. In Barry, we observed that the record of the trial proceedings will seldom conclusively establish incompetent representation, because that record will rarely provide an explanation for the attorney's conduct that is challenged as deficient. We addressed this issue again in Sharp v. State, where we explained that "[c]laims of ineffective assistance can rarely be determined from the trial record alone [because a defense] attorney's trial decisions — including which potential defenses to pursue, whether to object to the evidence offered by the government, how to cross-examine government witnesses, and whether and how to present a defense case — generally rest on considerations of strategy and trial tactics that are not directly addressed in open court."
675 P.2d 1292 (Alaska App. 1984).
Id. at 1296. See also State v. Jones, 759 P.2d 558, 565 (Alaska App. 1988).
Sharp, 837 P.2d 718, 722 (Alaska App. 1992).
In this respect, it is important to note the underlying similarity between (1) claims of plain error arising from an attorney's failure to object to an action or decision taken by the trial judge (for instance, the judge's ruling on an evidentiary or procedural question, or the judge's decision to give a particular jury instruction) and (2) claims of plain error arising from an attorney's failure to take action in other situations.
In the first category of plain error cases, where the claim of error is premised on some action of the judge (to which the trial attorney failed to object), appellate courts evaluate the judge's action. We assess whether that action was plainly wrong under the applicable law — so wrong that the error "would be apparent to a competent judge or attorney" even though no one raised an objection. If so, then we assess whether the erroneous action resulted in manifest injustice, and whether the complaining party's attorney had some tactical reason for failing to object to the judge's action.
Massey v. State, 771 P.2d 448, 453 (Alaska App. 1989).
See Rank v. State, 373 P.2d 734, 737 (Alaska 1962) (an unpreserved claim of error should be deemed "plain" only when necessary to prevent a manifest miscarriage of justice); Hosier v. State, 1 P.3d 107, 112 (Alaska App. 2000); Potts v. State, 712 P.2d 385, 394 n. 11 (Alaska App. 1985); Marrone v. State, 653 P.2d 672, 675-681 (Alaska App. 1982) (to qualify as "plain error", an error must be so prejudicial that failure to correct it will perpetuate a manifest injustice).
See Jackson v. American Equity Ins. Co., 90 P.3d 136, 144 (Alaska 2004); Henry v. State, 861 P.2d 582, 589 (Alaska App. 1993).
And in the second category of plain error cases, where the claim of error is premised on an attorney's failure to take action in situations that were not created by the judge, appellate courts still focus on the judge's action (or, more precisely, inaction). Both we and the Alaska Supreme Court have repeatedly declared that such claims of plain error are equivalent to the assertion that any reasonable trial judge (1) would have recognized that what was occurring was manifestly contrary to law and (2) would have recognized that this legal impropriety was going to lead to consequences so unjust as to oblige the court to intervene sua sponte to correct the problem. In other words, even when a party's claim of plain error is based on the assertion that their attorney incompetently allowed something to happen at trial (or that the attorney incompetently failed to request something different), the question on appeal is not whether the attorney acted incompetently. Instead, the question is whether, based on what the trial judge knew, the judge's failure to recognize the problem and take corrective action sua sponte was unreasonable or incompetent.
See Fyffe v. Wright, 99 P.3d 444, 451 (Alaska 2004) ("To establish plain error[,] a litigant must . . . establish that the application of that rule of law to the facts of his case was so obvious that it should have been noticed by the trial court sua sponte.") (quoting this Court's decision in Carmen v. State, 658 P.2d 131, 137 (Alaska App. 1983)). For other cases applying this rule, see Platz v. Aramburo, 17 P.3d 65, 69 (Alaska 2001); Alaska Dep't of Revenue v. Mitchell, 930 P.2d 1284, 1288 (Alaska 1997); Burford v. State, 515 P.2d 382, 383 (Alaska 1973); Cook v. State, 36 P.3d 710, 729 (Alaska App. 2001); Ragsdale v. State, 23 P.3d 653, 659 (Alaska App. 2001); Schumacher v. State, 11 P.3d 397, 399 (Alaska App. 2000); Petersen v. State, 838 P.2d 812, 816 (Alaska App. 1992).
In Dupree's case, Judge Thompson heard the attorneys discuss the fact that T.G. might have accused another woman of sexually abusing her own child, and that the police investigated the matter and either they or the district attorney's office concluded that the case should not be prosecuted. No one made an offer of proof describing the precise contours of this evidence. At the same time, Judge Thompson heard Dupree's attorney repeatedly assert that he had no intention of introducing this evidence at Dupree's trial — that he merely wished to have the people involved in this incident testify that they had an unfavorable opinion of T.G.'s trustworthiness.
The question is whether Judge Thompson acted outside the realm of reasonable judging when he failed to take it upon himself to cross-examine Dupree's attorney concerning the reasons why the defense attorney had decided not to introduce this evidence, and when he failed to urge (or require) Dupree's attorney to offer this evidence. The answer is obviously "no".
It was not Judge Thompson's role to second-guess Dupree's attorney's decisions as to how Dupree's defense should be presented. Alaska appellate cases in this area "reflect the view that the attorneys should decide how a case is litigated". Moreover, to the extent that Dupree's attorney may have acted incompetently when he decided not to offer this evidence, the incompetence of the attorney's decision would not have been obvious to Judge Thompson.
Heaps v. State, 30 P.3d 109, 116 (Alaska App. 2001).
(This is not to say that Dupree lacks any remedy. If he believes that his trial attorney was incompetent in ways that are not obvious from the record of his trial, he may pursue a petition for post-conviction relief under Criminal Rule 35.1.)
For all of these reasons, we conclude that Dupree's trial attorney's failure to offer this evidence did not constitute plain error.
The fact that two defense witnesses took the stand wearing distinctive prison clothing
Dupree's next claim of error is that his trial attorney should have objected when two defense witnesses, both of them prisoners at the Ketchikan Correctional Center, were brought to court wearing their prison jumpsuits. Dupree argues that the two witnesses' distinctive prison clothing would prejudice the jurors against the two witnesses, prompting the jurors to discount their exculpatory testimony. Here are the underlying facts:
At trial, Dupree's attorney cross-examined T.G. as to whether she used illegal drugs, and as to whether she would offer to "party" with men in exchange for drugs. T.G. denied both of these assertions. To impeach T.G. on these points, the defense attorney offered the testimony of two witnesses, Marvin Charles Jr. and Stewart Peterson. Both Charles and Peterson testified that, on other occasions, T.G. approached them and indicated her willingness to have sex with them in exchange for drugs.
At the time of their testimony, both Charles and Peterson were prisoners at the Ketchikan Correctional Center, awaiting trial on criminal charges. (Peterson was charged with second-degree sexual assault, and Charles was charged with several unspecified misdemeanors.)
A few minutes earlier in the trial, when Dupree's attorney made his offer of proof concerning the anticipated testimony of these two men, and after Judge Thompson ruled that this testimony was admissible, the prosecutor stated that he intended to impeach these two witnesses by bringing up the fact that both men were in custody and were facing criminal charges. The prosecutor argued that these facts were relevant to the two men's potential bias against the State. Judge Thompson told the prosecutor, "I think you can do that." Dupree's attorney responded to Judge Thompson's remark by stating, "I have no problem with that."
Both Peterson and Charles were brought to court wearing prison clothing (colored jumpsuits). When the first of these witnesses, Peterson, took the stand, the defense attorney's first question to him was, "Mr. Peterson, I notice [that] you're wearing a blue jumpsuit. Is there a significance to that jump suit?" Peterson answered, "I'm incarcerated." In response to further questions from the defense attorney, Peterson explained that he was currently living at the Ketchikan Correctional Center, that he was facing criminal charges, and that he was scheduled to go to trial the following week. The defense attorney then moved to the substance of Peterson's testimony.
The defense attorney pursued the same strategy when Charles took the stand. The defense attorney's initial questioning was:
Defense Attorney: Mr. Charles, [just like] the witness before you, you're dressed in a yellow jumpsuit. He was dressed in blue. What's the significance of a blue jumpsuit?
Charles: The blue represents felony [charge]; yellow represents misdemeanor.
Defense Attorney: Okay. But you're incarcerated. That's just standard garb for — your jail attire?Charles: Yes, sir.
Defense Attorney: And you're being held on misdemeanor charges?Charles: Yes, sir.
On appeal, Dupree contends that it was plain error for Judge Thompson to allow these two witnesses to testify wearing their prison clothing. Dupree relies on cases which hold that, except in abnormal circumstances, neither a criminal defendant nor defense witnesses should be presented to the jury in prison garb, or in visible restraints, or in any other fashion that suggests their guilt or their dangerousness.
See Williams v. State, 629 P.2d 54, 56-58 (Alaska 1981); Anthony v. State, 521 P.2d 486, 495-96 (Alaska 1974).
(Here, the potential problem is limited to prison garb; there is nothing in the record to indicate that Peterson and Charles were in handcuffs or other restraints when they testified.)
Dupree's claim of plain error is undercut by the fact that Judge Thompson had already ruled that the State could attack the potential bias of these two witnesses by showing that they were both in jail awaiting trial on criminal charges. Thus, Peterson's and Charles's prison jumpsuits merely served as visual corroboration of facts that the jury was going to hear anyway. Accordingly, the fact that the men were clothed in prison jumpsuits did not create manifest injustice.
Dupree's claim of plain error is also undercut by the fact that his trial attorney appears to have made a conscious choice not to object. Earlier in the trial (the day before), Dupree's attorney had objected when prison officials stated that they were going to require Dupree to wear the same set of civilian clothes every day during the trial because "that [was] their rule". Judge Thompson immediately responded that this was unacceptable:
The Court: Well, their rule is overruled. . . . [I]f you take another set of clothes [to Dupree] and they don't let him put those clothes on, [the prison superintendent] is going to be held in contempt of court. Now, is there anybody here [who] can relay that message to [the superintendent]?Prosecutor: I will.
The Court: Thank you. You know, that's absurd.
Based on this earlier ruling, Dupree's trial attorney clearly knew that Judge Thompson was willing to intervene if prison officials failed to take reasonable steps to assure that prisoners appeared in court in suitable civilian clothes. And yet the trial attorney did not object when Peterson and Charles appeared in prison garb.
The defense attorney's summation to the jury reveals that the attorney had a tactical reason for failing to object. The defense attorney argued to the jurors that, because the two men were prisoners facing criminal charges, their exculpatory testimony should be trusted:
Defense Attorney: Now, you heard two gentlemen [testify], both of who[m] are currently incarcerated at Ketchikan Correctional Center. And both of those gentlemen told you that . . . [T.G.] had asked them to help her obtain drugs, and she would party with them if they did.
Both of these gentlemen have charges pending — but that cuts both ways. [They might have] a motive, potentially, . . . to get back at the State by . . . giving evidence that's contrary to the case that the State is pitching. [But] they might also be fearful that the State would treat them harsher if they [give such evidence]. That's a big consideration. These two men very well may have been testifying truthfully [even though they faced] the possibility that the State would treat them harsher, [or even though they knew that,] by not testifying, maybe the State would go easier on them.
Because the record indicates that the defense attorney had a tactical reason for failing to object, there was no plain error.
See Jackson v. American Equity Ins. Co., 90 P.3d 136, 144 (Alaska 2004); Henry v. State, 861 P.2d 582, 589 (Alaska App. 1993).
In Dupree's reply brief, Dupree argues for the first time that it was plain error for Judge Thompson to allow the prosecutor to impeach the two witnesses with the fact that they were in jail facing criminal charges. This argument is waived; a party is not entitled to raise new arguments in a reply brief.
See Willoya v. Alaska Dept. of Corrections, 53 P.3d 1115, 1126 n. 44 (Alaska 2002); Petersen v. Mutual Life Ins. Co., 803 P.2d 406, 411 (Alaska 1990); Peterson v. State, 988 P.2d 109, 114 (Alaska App. 1999).
The prosecutor's reference to President Clinton and the prosecutor's references to "our daughters" during the State's summation to the jury
Dupree claims that, during the State's summation to the jury, the prosecutor improperly analogized Dupree's behavior during the investigation of this case to the behavior of President Bill Clinton when he was investigated for having sex with a White House intern. Dupree argues that the prosecutor's analogy must have stirred the animosity of a Ketchikan jury, since (according to Dupree) the residents of Ketchikan are ardently anti-Clinton.
In addition, Dupree claims that the prosecutor improperly included references to "our daughters" in his summation. Dupree argues that these references constituted an implicit plea for the jurors to approach Dupree's case as if their own family members had been victimized.
Finally, Dupree claims that the prosecutor engaged in improper argument when he reminded jurors that, in the past, women would not be heard to complain of rape unless they were chaste and had the highest moral character. Dupree contends that the prosecutor was "arguing broad social policy issues" that had nothing to do with Dupree's guilt or innocence, and that the prosecutor was essentially "asking for Mr. Dupree to be punished for this alleged former policy".
(a) The prosecutor's reference to Bill Clinton
At Dupree's trial, the prosecutor presented the testimony of Ketchikan Police Officer Sean D. Sullivan. Sullivan interviewed Dupree shortly after T.G. reported the assault.
According to Sullivan, Dupree at first denied any knowledge of the incident. Then, a little later, Dupree admitted that he had shared a taxi with T.G. Dupree told the officer that he had suggested to T.G. that they engage in sexual relations, but T.G. was not interested, so Dupree got out of the taxi and walked away.
As Dupree and Sullivan were standing there, T.G. arrived on the scene and identified Dupree as the man who had assaulted her — although, at this point, T.G. had not yet asserted that the assault was sexual. When Sullivan asked Dupree about T.G.'s accusation, Dupree told the officer that he had indeed struck T.G. Dupree stated that when he asked T.G. to "party" with him and she said no, he became so angry that he punched her in the chest and on the side of the head.
About ten or fifteen minutes later, T.G. told the police that the assault had been sexual. The police then took Dupree into custody and obtained a warrant requiring Dupree to submit to a physical examination for evidence of sexual contact. Following these procedures, Dupree conceded that he had had sex with T.G., but he contended that the sex was consensual.
During the prosecutor's summation to the jury, he drew an analogy between Dupree's changing statements regarding his encounter with T.G. and President Clinton's changing statements about his relationship with the intern:
Prosecutor: [Dupree] was going to lie about the sex until the physical evidence came up to prove that the sex happened. And then, . . . since everybody knows [that he had sexual relations with T.G.], he's going to . . . say, "Okay, the sex happened."
There's kind of an interesting precedent for that . . .; that's exactly what Bill Clinton did. . . . "Did you have sex with Monica Lewinsky?" "No." "We've got a [semen] stain on [her] blue dress." "Yes." . . . And you might say [that] that's what's going on in this case.
Dupree's trial attorney did not object to the prosecutor's argument, but on appeal Dupree argues that it was plain error for the prosecutor to "[refer] to a politically controversial figure, a [D]emocrat in a Republican[-]dominated state, and [to compare] the behavior of Mr. Dupree to President Clinton". In other words, Dupree argues that it was incumbent on Judge Thompson, acting sua sponte, to admonish the prosecutor, or to instruct the jurors to disregard this argument, or to order a mistrial.
(Dupree does not specify what action he thinks Judge Thompson should have taken. Instead, he merely argues that, in the absence of some action by the judge, his conviction must now be reversed.)
We disagree. The prosecutor did not urge the jurors to rely on partisan feeling; rather, the prosecutor sought to draw an analogy between Dupree's shifting account of the episode being litigated and a series of historical events that the jurors were acquainted with. The evidence presented at Dupree's trial, at least when viewed in the light most favorable to the State, supported the prosecutor's analogy. We therefore conclude that Dupree has failed to show plain error.
(b) The prosecutor's references to daughters
During the prosecutor's summation, he referred twice to "our daughters" as potential victims of sexual assault. In the first instance, the prosecutor was urging the jurors not to acquit Dupree simply because they believed that T.G. had exercised bad judgement in getting herself into a situation where she might be assaulted:
Prosecutor: The question you have to ask yourself . . . is whether [T.G.'s] exercise of bad judgement, and the amount she had to drink, and [her choice of] getting out of the cab [with Dupree in an isolated location], which is — you know, we tell our daughters and we tell our wives . . . "Don't get [in] the car with a stranger. Don't get in the car; that's when you lose all control. Don't do it." . . . Well, [T.G.] exercises bad judgement; she gets out [of the cab]. . . . [Y]ou [must] determine [whether] her . . . exercise of poor judgement justifies what Mr. Dupree did next.
Dupree's attorney did not object to this argument, but Dupree now claims that the prosecutor's argument constituted plain error. We do not agree. From the quoted passage, it is clear that the prosecutor's main points were (1) to acknowledge that T.G. had exercised bad judgement when she put herself alone with Dupree in an isolated location, and then (2) to argue that T.G.'s bad judgement did not justify the ensuing sexual assault.
However, a few minutes later, the prosecutor returned to the theme of daughters. This time, the prosecutor suggested more directly that the jurors ponder whether their daughters might be assaulted in the same way that T.G. was:
Prosecutor: You know, we learned to tell our daughters, "Don't get in the car." And now we [have] learned to tell our daughters, "Never get out of the cab." And maybe we [have] learned to tell our daughters [not to wear the kind of bib overalls that T.G. was wearing, because] these things are darn easy to get off."
Again, Dupree's trial attorney did not object to the prosecutor's argument, but Dupree now claims that the argument constituted plain error.
This second argument is potentially more objectionable, but again we conclude that it is not plain error. The prosecutor did not ask the jurors to convict Dupree in order to protect their daughters, nor did he suggest that Dupree's acquittal would place the jurors' daughters at risk of similar sexual assaults. Moreover, this was one isolated comment in a fairly lengthy summation. We do not believe that Judge Thompson was obliged to intervene in the absence of an objection.
(Dupree points to two more instances during the State's summation when the prosecutor referred to a daughter. In the first of these instances, the prosecutor told the jurors about an historical incident: the writer Mark Twain (Samuel Clemens) felt personally responsible for his daughter Susy's death in 1896 because the girl died while Twain was away from home, pursuing a lecture tour in England to pay his debts. In the second instance, the prosecutor referred to his own daughter — and her apparent theft of brownies from a container on top of the refrigerator — to illustrate the concept of circumstantial evidence. Neither of these instances was improper.)
See http://www.p bs.org/weta/the west/people/a_c/clemens.htm (last visited November 7, 2004).
"I have a story to tell [you], because it compares direct evidence to circumstantial evidence. . . . My wife makes brownies . . . [and] my daughter loves my wife's brownies. [So] when my wife makes brownies for some event, she hides them . . . in Tupperware behind the cookie jar on top of the fridge. I tell my daughter, `Do not eat Mom's brownies before Sunday.' [Then] I go in[to] the other room [to watch] TV. I hear the stool being pushed across the floor. I hear a little bit of a [clatter]. I hear the cookie jar being moved. . . . I get up and [go into the kitchen], and there's my daughter standing in the kitchen with brownie all over her face. [There's] brownie on the dish towel, [and the] stool [is] up against the fridge. And I say, `Did you eat one of Mom's brownies?' And she looks me in the eye and says, `No, I did not.' That's [her] direct testimony — [but] the circumstantial evidence is every other part of that story."
(c) The prosecutor's reference to former times when a woman would not be heard to complain of rape unless she was chaste
Dupree testified that he met T.G. in a bar, and that she agreed to accompany him in search of drugs, and for sex. The State conceded that T.G. had not physically resisted Dupree in any significant way: the medical examination showed that she had no bruises or other obvious physical injuries. Moreover, as explained in earlier sections of this opinion, testimony was presented that T.G. was willing to approach men in bars and offer sex in exchange for drugs.
In an apparent effort to deal with this evidence, the prosecutor argued to the jury:
Prosecutor: There was a time in this country when, in order for a woman to come forward and say, "I was sexually assaulted", not only had she better have a torn dress and a black eye, but she had better be a virgin, and she had better not have had sex with her high school sweetheart, and she had better not have [ever] met a man in a bar . . . and had sex with him. And that's the kind of evidence that the defense is going to ask you — they're asking you to put [T.G.] on trial and say, "Hey, she's a bad person; she doesn't get the benefit of the laws." We don't do that, and I would respectfully request that this jury not do that.
Dupree's trial attorney did not object to this argument, but on appeal Dupree contends that this argument was plain error. Dupree asserts that the prosecutor was impermissibly "arguing broad [issues of] social policy", and asking the jurors to punish Dupree for the purported moral shortcomings of this earlier age.
We do not agree. The prosecutor was asking the jurors not to deny T.G. the protection of the law even though she had submitted to Dupree without a fight, and even if the jurors believed the adverse testimony about T.G. and, based on this testimony, concluded that her lifestyle was immoral or distasteful. This was proper argument.
(In Dupree's reply brief, he raises one more attack on the prosecutor's summation to the jury. He points out that, toward the end of the summation, the prosecutor referred to Dupree as "this guilty person". Dupree's trial attorney did not object to the prosecutor's characterization of Dupree; moreover, it appears that the prosecutor was not expressing his personal opinion of Dupree's guilt but rather was arguing that, under the facts and the law, Dupree was guilty. In any event, this argument is raised for the first time in Dupree's reply brief — and, because of this, the argument is waived.) Dupree's claim of ineffective assistance of counsel
The prosecutor said: "I respectfully submit to you that, if you follow the law and if you weigh the evidence, you can't let this guilty person go free."
Willoya v. Alaska Dept. of Corrections, 53 P.3d 1115, 1126 n. 44 (Alaska 2002); Petersen v. Mutual Life Ins. Co., 803 P.2d 406, 411 (Alaska 1990); Peterson v. State, 988 P.2d 109, 114 (Alaska App. 1999).
Dupree argues that his trial attorney was facing personal problems and therefore failed to devote sufficient attention or preparation to his case. But Dupree's arguments rest on assertions of fact outside the record.
Dupree also argues that the attorney's presentation of the case was ineffective in various ways. But all of these purported deficiencies in the attorney's presentation of the case are merely recapitulations of the claims of error we have already discussed.
For these reasons, we reject Dupree's claims of ineffective assistance of counsel. (And we again note that, to the extent we have not decided those claims here, Dupree remains free to pursue his claims in a petition for post-conviction relief.)
Conclusion
The judgement of the superior court is AFFIRMED.