Opinion
Court of Appeals No. A-10340.
June 29, 2011.
Appeal from the Superior Court, Third Judicial District, Anchorage, Eric A. Aarseth, Judge, Trial Court No. 3AN-05-9212 CR.
Beth G.L. Trimmer, Assistant Public Advocate, and Rachel Levitt, Public Advocate, Anchorage, for the Appellant. Nancy R. Simel, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
D.L. was working as a prostitute in Anchorage in 2005 when she was solicited by Howard Lee Hardrick. Hardrick brought D.L. back to a motel room he shared with another man named Karl Smith, where D.L. was raped and physically assaulted. At trial, Hardrick applied to present evidence of an alleged DNA match between a sample found on D.L.'s jeans and a sample from an unsolved rape in 2003. Superior Court Judge Eric A. Aarseth denied Hardrick's application, finding that the purported match was speculative and that the details of the 2003 case involved inadmissible propensity evidence. The court did allow Hardrick to present the DNA test results, which excluded him as the source of the DNA on the stain on D.L.'s jeans and indicated that at least three other people contributed to the DNA found on that stain. We conclude that the trial judge did not abuse his discretion when he made these rulings.
Facts and Proceedings
Hardrick was a commercial fisherman who worked out of Dutch Harbor. When he was not fishing, Hardrick occasionally resided in Anchorage and slept in homeless shelters. One afternoon in Anchorage, he ran into Smith, an acquaintance from the Brother Francis shelter. Smith wanted a motel room for the night. They checked into a motel, and Hardrick made a trip to a liquor store. Hardrick then left in search of a prostitute and eventually returned with D.L., the victim in this case.
D.L. had hitchhiked from Wasilla to Anchorage a week earlier to drink and party. She arrived with just the clothes on her back and without a place to stay. To support her habits during the week, she worked as a prostitute, engaging in vaginal sex as recently as the morning of the assault and oral sex shortly before the events of this case began.
Hardrick approached D.L. on the corner of 13th Avenue and Gambell Street and asked if she could help him obtain crack cocaine. After securing some cocaine, they returned to the motel so that D.L. could go on a "date" with Smith.
Once back at the motel, Hardrick started becoming belligerent because D.L. did not ask Smith for money up front. But Smith was getting drunk and Hardrick told D.L. to go into the bathroom. Hardrick then began a series of assaults and sexual assaults that lasted for hours. He repeatedly forced D.L. to engage in vaginal and oral sex, and got angry with her because he did not ejaculate.
Hardrick hit D.L. on her ear and the side of her head, strangled her to the point of nearly losing consciousness, and dragged her around by the hair. He punched her so hard in the left eye that he broke her nose, and she began choking on her own blood. He showed her his Michigan identification card and told her that, when he killed her, his name would be the last thing on her mind. Smith apparently passed out and only awoke hours later when he heard the victim leave. D.L. finally managed to escape and took a cab to a friend's house, where she was met by police.
When searching the motel room following the attack, police recovered a piece of paper with Hardrick's name, date of birth, and Social Security number. Police lifted Hardrick's palm print off a railing outside the motel room. D.L. also identified Hardrick as her assailant in a photo lineup. Hardrick was subsequently arrested and charged with kidnapping, six counts of first-degree sexual assault, two counts of second-degree assault, and tampering with physical evidence.
AS 11.41.300(a)(1)(C).
AS 11.41.410(a)(1).
AS 11.41.210(a)(1), (2), (3).
AS 11.56.610(a)(1).
Before trial, an analyst from the state crime lab wrote to the detective investigating this case, informing her that the state's Combined DNA Index System matched the DNA taken from a stain on D.L.'s jeans to the DNA taken from a stain on the victim's panty liner in an unsolved 2003 Anchorage rape case.
The State moved for a protective order to preclude Hardrick from referencing any specific alternate suspect or from suggesting that the police failed to investigate alternate suspects. In response, Hardrick made the following offer of proof, explaining that he intended to suggest that Smith was an accomplice to the attack on D.L., as well as one of the perpetrators in the 2003 incident.
Hardrick offered to prove that, in the 2003 case, a woman named K.P. was walking near 4th Avenue and Denali Street in Anchorage when two men forced her into a van at knifepoint. They placed a hood over her head. One of the men, a black male about six feet tall, forced her to have sexual intercourse while the second man held a knife to her throat. The second man, described as a "male of unknown race . . ., shorter than the first male, slim with facial hair and glasses," then performed oral sex on K.P. while the first man held a knife to her throat. K.P. told police that she heard the men say they had to get back to Fairbanks.
Hardrick offered to prove that Smith fit parts of the description of the second man from the 2003 rape. In the 2005 investigation, Smith was found with a number of knives on his person, and he is from Fairbanks. He had facial hair, stood 6'1", and weighed 165 pounds. He is one-quarter black and describes himself as a light-skinned African-American.
During the trial, the parties argued this issue multiple times. The prosecutor initially pointed out that there were at least three different contributors to the DNA found on D.L.'s pants. Thus, when the state crime lab reported that the DNA on D.L.'s pants "match[ed]" the DNA collected in the 2003 case, this only meant that there was a combination of the three different people's DNA that could be juggled together to match the DNA profile of the unidentified offender in the 2003 case. In other words, the crime lab was not asserting that a single unidentified person contributed the DNA in both the 2003 case and the present case. Judge Aarseth asked the defense attorney if he agreed with the prosecutor's characterization of the DNA evidence, and the defense attorney conceded that the prosecutor was correct.
Judge Aarseth allowed Hardrick to introduce the DNA results from the sample taken from D.L., but he stated that the details of the 2003 case were likely inadmissible propensity evidence. He ruled that the vague description of the second perpetrator of the 2003 assault was insufficient to implicate Smith. He noted that Hardrick could still accuse Smith (based on his presence at the crime scene) or argue that someone else committed the offenses against D.L. And the judge offered to reconsider his rulings depending on the other evidence that was admitted at the trial.
Later in the trial, the defense attorney again argued that he should be allowed to cross-examine the police witnesses about the crime lab letter and the fact that it suggested there might be other suspects. Judge Aarseth pointed out that, even without the crime lab letter, there was plenty of evidence suggesting that other persons might have committed the sexual assault. The judge asked the defense attorney why it was so important to cross-examine the police witnesses about the crime lab letter.
During the ensuing exchange between the judge and the defense attorney, the defense attorney essentially conceded that the crime lab's letter was misleading when it spoke of a "match" between the DNA in the 2003 case and the DNA in the present case:
Judge Aarseth: [A]re you telling me that . . . if you [called] the person [who] did the DNA testing [in this case], . . . they're going to say that [because of the mixture of DNA on the victim's pants,] they can't identify . . . — there's no way they can match this up with another person?
Defense Attorney: Yeah. They're going to say that . . . the stain in the [victim's] jeans, both the epithelial [cells] and the sperm [cells,] are from more than one person.
Judge Aarseth: Okay.
Defense Attorney: And when you have [DNA] from more than one person, when you have five [different] alleles [present at the same locus], you're not specifically — it's not like you have one [person's DNA,] like in the 2003 case, where you have [only] one allele [per location], and you know that's one person.
. . . .
[Here,] there may be a couple of people.
A few minutes later, the defense attorney conceded that he had overstated his position when he said that the DNA found on the victim's pants could have come from "a couple" of people. The defense attorney acknowledged that the DNA found on the victim's pants came from "at least three" different people, and "[i]t could be as many as twenty."
Following this exchange, Judge Aarseth concluded that the purported "match" described in the crime lab's letter had only speculative relevance because the mixture of DNA meant that no match was possible between the DNA in the 2003 case and the DNA found on the victim's pants in this case. The judge ruled that the facts of the 2003 and 2005 assaults were sufficiently different that there was no common modus operandi. The judge ruled that, even if the evidence from the 2003 assault was relevant to the present case, the evidence would still be inadmissible under Alaska Evidence Rule 403. Judge Aarseth therefore denied Hardrick's application to admit the evidence from the 2003 assault.
Hardrick did introduce the results of the DNA tests, which excluded him as the source of the DNA on the stain on D.L.'s jeans and indicated that at least three other people contributed to the DNA found on that stain. But a jury convicted Hardrick of kidnapping, tampering with physical evidence, five counts of first-degree sexual assault, and two counts of second-degree assault.
Discussion The danger of prejudice or confusion outweighed any probative value of the crime lab letter.
Hardrick sought to introduce the crime lab letter and the circumstances of the unsolved 2003 case to show that the unknown perpetrator (John Doe) was the same person who raped D.L. in 2005. But the probative value of the crime lab letter was very weak because it was based on a faulty assumption — the assumption that the DNA sample from D.L.'s jeans came from a single source. Hardrick's attorney acknowledged that the DNA found on D.L.'s pants came from "at least three" different people, and "[i]t could be as many as twenty."
Judge Aarseth thus reasonably concluded that the similarities between the DNA in this sample and the DNA from the 2003 case had only speculative relevance. The mixture of DNA meant that no exact match was possible between the DNA in the 2003 case and the DNA found on D.L.'s pants. The crime lab letter was misleading when it said that there was a "match" in the DNA from these two cases.
This evidence could be properly excluded "if its probative value [was] outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." Judge Aarseth could reasonably conclude that the statement in the crime lab letter — that there was a "match" between the two samples — raised a danger of misleading the jury. The judge could also reasonably conclude that this danger outweighed any minimal probative value.
The evidence from the 2003 case was not admissible to show that John Doe or Karl Smith were sex offenders.
As noted above, Hardrick sought to introduce the crime lab letter and the circumstances of the unsolved 2003 case to show that John Doe was the person who raped D.L. in 2005. In other words, Hardrick wanted to show that John Doe was a rapist and to use the inference that John Doe was a rapist to show that he also committed the 2005 rape.
This request was improper, even if we assume that the DNA evidence from the 2005 investigation had some minimal tendency to show that the same person could have committed both crimes. Evidence of a person's character is generally not admissible to show that the person acted in conformity therewith on a particular occasion. And even when a trait of a person's character is relevant, a party may not rely on specific instances of his misconduct. So Hardrick was not entitled to use the inference that John Doe was a rapist to suggest that John Doe raped D.L. And he was not entitled to rely on the 2003 rape case to show that John Doe was a rapist.
Alaska Evid. R. 404(a); see Linehan v. State, 224 P.3d 126, 147-49 (Alaska App. 2010) (holding that evidence that defendant admired a murderous movie character was not admissible to show that she committed murder).
See Alaska Evid. R. 405; Allen v. State, 945 P.2d 1233, 1239-40 (Alaska App. 1997) (holding that evidence of defendant's prior acts of violence was not admissible to prove his character for violence).
Hardrick also sought to show that Karl Smith resembled the accomplice in the 2003 rape in order to show that he assisted with the rape of D.L. in 2005. But this evidence meets the same barriers as the John Doe evidence. Hardrick was not entitled to rely on the 2003 rape case to show that Karl Smith was a rapist's accomplice. And he was not entitled to use the inference that Smith was a rapist's accomplice to suggest that Smith assisted with the rape of D.L.
The trial judge recognized that the crime lab letter and the 2003 evidence could have been admissible to show the identity of D.L.'s assailant if the evidence showed a unique modus operandi. " Modus operandi is generally a means of proving the identity of the perpetrator of the crime charged, by demonstrating that the defendant had committed in the past other crimes sharing with the present offense features sufficiently unique to make it likely that the same person committed the several crimes." But the trial judge could reasonably conclude that there was insufficient similarity between the two crimes to show a common modus operandi. The evidence of the 2003 rape was therefore inadmissible to establish the identity of D.L.'s assailant.
See Alaska Evid. R. 404(b)(1) (providing that evidence of other crimes is admissible to show "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident").
Coleman v. State, 621 P.2d 869, 874 n. 4 (Alaska 1980).
This case does not involve any other issues of motive or intent that would render this evidence admissible. There was no question that the person who raped D.L. did so without her consent for the purpose of physical or sexual gratification. The trial judge reasonably concluded that the crime lab letter and the other evidence from the 2003 case were not admissible under the rules on character evidence. Exclusion of the evidence from the 2003 case did not violate due process.
Hardrick argues that the trial court violated his right to due process of law when it excluded this evidence. He argues that the case of Smithart v. State protected him against evidentiary rulings that substantially infringed upon his due process right to show that another suspect committed this crime. But even though Smithart protects a defendant's right to present a defense, "the right to present a defense does not include the right to demand that the trial judge disregard the rules of evidence." The Smithart court specifically recognized that the other-suspect defense did not give a defendant the right to use "impermissible propensity evidence." In Hardrick's case, there was nothing that was fundamentally unfair about the judge's application of ordinary relevance principles to exclude the crime lab letter and the evidence from 2003.
988 P.2d 583, 586 (Alaska 1999).
Cleveland v. State, 91 P.3d 965, 974 (Alaska App. 2004).
Smithart, 988 P.2d at 590 n. 35.
Hardrick also argues that the trial court should have allowed him to cross examine one of the investigating officers about the crime lab letter to show that the officer was biased against him and had failed to follow an obvious investigative lead. Hardrick relies on an unpublished decision where we reversed a trial judge's order that prevented a defendant from inquiring about why the officer had not investigated other suspects. But in that same decision, we recognized that the right to confrontation does not give defendants the right to circumvent the rules of evidence by engaging in free-ranging questioning about inadmissible evidence that may have supported investigative leads. "Although the defendant's right to confrontation is fundamental, there is nothing to suggest that the application of Rule 403 violates this right."
Brown v. State, Mem. Op. J. No. 4369, 2001 WL 322199, at *9-10 (Alaska App. Apr. 4, 2001).
Id. at *10.
Brown v. State, 779 P.2d 801, 804 (Alaska App. 1989).
In this case, the judge reasonably limited Hardrick from asking about the inadmissible aspects of the 2003 rape case. But Hardrick remained free to cross-examine the officer about the evidence from the DNA sample showing that D.L. had sexual intercourse with at least three other men and establishing that Hardrick was not one of the men who had contributed to the sample. We conclude that the judge's restriction on Hardrick's cross-examination was not an abuse of discretion.
Conclusion
We AFFIRM the superior court's judgment.