Opinion
Court of Appeals No. A-10748 Trial Court No. 4FA-09-513 CR No. 5953
06-05-2013
JERRY A. KARR, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Josie Garton, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Richard Svobodny, Attorney General, Juneau, for the 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
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Michael A. MacDonald, Judge.
Appearances: Josie Garton, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Richard Svobodny, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
COATS, Chief Judge.
Jerry A. Karr, age forty-one, was convicted of sexual assault in the second degree for raping sixteen-year-old C.G. while she was sleeping. At trial, Karr contended that he and C.G. had consensual sex and that C.G. fabricated a story of sexual assault in order to gain attention from her boyfriend.
At trial, the State presented the testimony of Angela Ellis, the sexual assault nurse who examined C.G. Ellis testified that, during the examination, she observed several linear red scars on C.G.'s upper legs, and that C.G. reported that these scars were self-inflicted. Karr's attorney sought to cross-examine Ellis about these self-inflicted injuries; he told the trial judge that he wanted to establish, through Ellis's experience as a sexual assault nurse, that there was an association between self-inflicted injuries and other self-destructive or attention-seeking behavior. The defense attorney argued that this evidence was relevant to show that C.G. consented to have sexual intercourse with Karr and lied about it afterward.
Superior Court Judge Michael MacDonald ruled that the defense attorney's proposed questions would, in effect, make Ellis a defense witness on this issue. The judge therefore concluded that the defense attorney should not be permitted to question Ellis about this theory on cross-examination. Instead, Judge MacDonald ruled that Karr's attorney would have to offer this evidence during the defense case.
On appeal, Karr argues that the judge's ruling was error. We conclude that Karr did not properly preserve his objection to Judge MacDonald's ruling. And even if Karr had preserved his objection, we would conclude that Judge MacDonald did not abuse his almost unlimited discretion to decide the order in which the parties presented their evidence to the jury. We therefore affirm the superior court's decision.
Factual and procedural background
On the evening of July 23, 2007, C.G. and her boyfriend, Nolan Fuentes, attended a small gathering of friends at the boyfriend's family's home in Fairbanks. Jerry Karr, who was a friend of the family, was present at this gathering. The guests also included Fuentes's stepsister, Ashley Mills, and Fuentes's former girlfriend, Vallie Cox.
Fuentes had dated Cox for several years. They had recently broken up, and Fuentes had been dating C.G. for two months.
At some point on the evening in question, C.G. and Fuentes retired to Fuentes's bedroom and had consensual sex. C.G. then went to sleep, while Fuentes went back to socializing.
After C.G. went to sleep, Karr entered the bedroom. According to C.G., she woke up because someone's hair was touching her face. She then realized that someone was having sex with her. C.G. stated that she knew it was Karr, because Karr had long hair. She testified that she froze until he was done having sex with her. Several minutes later, Karr helped her put her pants back on, and then he left.
Karr, for his part, testified that he and C.G. had consensual sex. He declared that C.G. was awake when he entered the bedroom. Karr testified that he sat on the bed and told C.G. that, earlier that day, he heard Fuentes talking about his intention to break up with C.G. According to Karr, C.G. became very upset upon hearing this news. When Karr tried to console her by touching her back, C.G. initiated the act of sexual intercourse.
After the incident, C.G. told Ashley Mills that Karr had raped her. Later that evening, C.G. also told Fuentes that Karr had raped her. C.G. was visibly upset, and Fuentes walked her home. As they walked, C.G. and Fuentes argued about the assault because Fuentes was reluctant to believe C.G.; he told her that he wanted to hear both sides of the story. C.G. and Fuentes broke up during this argument.
The argument between C.G. and Fuentes became sufficiently heated that someone reported it to the authorities. Alaska State Trooper Aaron Mobley responded to this report and stopped to talk to the couple. C.G. was still visibly upset, and Trooper Mobley suspected that there may have been domestic violence between C.G. and Fuentes. Mobley asked C.G. repeatedly if she was all right, and she assured him that nothing was wrong. She told him that she and her boyfriend had just broken up. C.G. did not mention that she had been sexually assaulted.
When C.G. got home, she told her mother about the sexual assault. C.G.'s mother took her to the hospital, where C.G. reported the assault to a trooper and to Nurse Angela Ellis.
Ellis conducted a sexual assault examination of C.G. C.G. reported no injuries stemming from the assault, and Ellis found none. Ellis stated that C.G.'s demeanor was quiet, cooperative, tearful, and trembling. Ellis confirmed that her examination was consistent with C.G.'s report of the sexual assault.
Karr was charged with one count of sexual assault in the second degree, for knowingly engaging in sexual penetration with someone he knew to be incapacitated. The jury found Karr guilty.
AS 11.41.420(a)(3).
Why we find no error in Judge MacDonald's decision requiring Karr to offer Nurse Ellis's proposed testimony during the defense case
As we have previously explained, Karr's attorney sought to cross-examine Ellis, the sexual assault nurse who examined C.G., about several red linear scars that Ellis observed on C.G.'s upper legs. C.G. reported that these injuries were self-inflicted. The defense attorney sought to cross-examine Ellis about the inferences that might be drawn about C.G.'s personality from these self-inflicted injuries. In particular, the defense attorney stated that he wanted to ask Ellis, based on her experience as a sexual assault nurse, whether there might be an association between C.G.'s self-inflicted injuries and other self-destructive or attention-seeking behavior. The defense attorney contended that, through Ellis's testimony, he hoped to establish a connection between C.G.'s self-injuring behavior and her potential motive to lie about being raped by Karr.
Judge MacDonald ruled that Karr's attorney could cross-examine Ellis as to whether C.G. said that the linear scars on her upper legs were self-inflicted. But the judge ruled that the defense attorney could not cross-examine Ellis regarding the defense theory that there might be a connection between C.G.'s self-inflicted injuries and a potential motive or propensity to make a false report of rape. The judge concluded that, by asking such questions, the defense attorney would essentially be employing Ellis as a defense expert witness. Accordingly, the judge ruled that Karr's attorney would have to call Ellis as a witness during the defense case if he wished to pursue this line of questioning.
A trial judge has "an almost unlimited discretion in deciding on the order of proof ... ." Am. Nat'l Watermattress Corp. v. Manville, 642 P.2d 1330, 1339 (Alaska 1982). The commentary to Alaska Evidence Rule 611 sets out the reasoning behind this principle: "Spelling out detailed rules to govern the mode and order of interrogating witnesses and presenting evidence is neither desirable nor feasible. The ultimate responsibility for the effective working of the adversary system rests with the judge."
In the present case, Judge MacDonald reasoned that the defense attorney's proposed evidence should more properly be offered during Karr's defense case. The judge reasoned that, because Karr's attorney had not given advance notice that he would be asking Nurse Ellis to offer expert testimony on this topic, it would be unfair to allow this testimony unless the State was given the opportunity to investigate this issue and, perhaps, consult other expert witnesses. The judge concluded that delaying the proposed testimony until the presentation of the defense case would allow the State to be prepared, and would reduce the risk of unfair surprise.
Karr's attorney initially objected when the judge ruled that he could not pursue his proposed line of cross-examination. However, the defense attorney did not continue to object after the judge clarified that the attorney could pursue this topic during the defense case. Moreover, following this ruling, Karr made no effort to present Nurse Ellis's testimony during the defense case, or even to establish that Ellis was qualified to offer an opinion on the purported association between C.G.'s self-inflicted injuries and her alleged motive or propensity to make a false accusation of rape. Karr therefore did not properly preserve an objection to the trial judge's ruling.
See State v. Wickham, 796 P.2d 1354, 1358 (Alaska 1990); Sam v. State, 842 P.2d 596, 598-99 (Alaska App. 1992).
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Furthermore, even on appeal, Karr does not contend that he was prejudiced by Judge MacDonald's ruling. Thus, even if Karr had properly preserved his objection, we would still conclude that Judge MacDonald did not abuse his discretion when he ruled that Karr would have to wait until the defense case to offer the proposed evidence.
The judgment of the superior court is AFFIRMED.