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discussing how Rule 404(b) evidence corroborated State's case
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Court of Appeals Nos. A-9408, A-9727, A-9737.
April 1, 2009.
Appeals from the Superior Court, Third Judicial District, Palmer, Beverly W. Cutler, Judge, and from the District Court, Third Judicial District, Anchorage, Jack W. Smith, Judge, Trial Court Nos. 3AN-98-397 Cr, 3PA-04-713 Cr, 3PA-03-1192 Cr.
Beth G. L. Trimmer, Assistant Public Advocate, Palmer, and Rachel Levitt, Public Advocate, Anchorage, for the Appellant.
Timothy W. Terrell, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION
Jimmy A. Lampley appeals his convictions for second-degree assault, criminal trespass, and violating a domestic violence restraining order. These offenses arose from Lampley's interaction with two former girlfriends, and the charges were tried together. On appeal, Lampley raises many challenges to the evidence presented at his trial, as well as the procedures followed at his trial and sentencing. In addition, Lampley argues that the statutory definition of "crime involving domestic violence", see AS 18.66.990(3) (5), is unconstitutionally vague.
For the reasons explained here, we conclude that most of Lampley's claims either were not preserved for appeal or lack merit. In one instance, Lampley's claim is both preserved and arguable, but it is clear that he suffered no prejudice. For these reasons, we affirm Lampley's convictions.
Lampley also appeals the revocation of his probation from an earlier case, based on his commission of these new crimes. For the reasons explained here, we also affirm the revocation of Lampley's probation and the resulting sentence.
Underlying facts
In case number 3PA-04-713 CR, Lampley was charged with second-degree assault for assaulting Lena Badger. Because Lampley had been involved in a sexual relationship with Badger, the offense was charged as a crime of domestic violence. According to Badger's later testimony, Lampley was sleeping in her bed at her father's house, and he refused to leave when she asked him to. Badger rolled him out of bed, but he got back onto the bed. Badger then grabbed Lampley's cell phone and dropped it in the toilet. In response, Lampley attacked Badger — hitting her and choking her until family members intervened.
Before trial, the State moved to join this case with the misdemeanor charges pending against Lampley in case numbers 3PA-03-1192 CR and 3PA-03-1468 CR. These misdemeanor charges stemmed from two incidents involving Lampley's former girlfriend, Kimberly Rivas. In the first incident, which occurred on June 17, 2003, Lampley entered Rivas's apartment at night, ostensibly to pay her for damage he had previously done to her bathroom door. While Lampley was there, he was confronted by Rivas's friend, Nicolette Anderson. According to the State's evidence, Lampley pushed Anderson against the kitchen counter. Based on this incident, Lampley was charged with two offenses against Rivas (criminal trespass and violating a domestic violence restraining order), as well as one offense against Anderson (fourth-degree assault). Lampley was also charged with violating the domestic violence restraining order two days later (on June 19th), this time for telephoning Rivas at her work.
Lampley opposed the joinder of these different cases. However, he did not argue that joinder of the cases was improper under Alaska Criminal Rule 8(a). Rather, he argued that the superior court should employ its authority under Alaska Criminal Rule 14 to order severance on the ground that Lampley would be unfairly prejudiced if the three cases were tried together.
Superior Court Judge Beverly W. Cutler concluded that Lampley would not be unfairly prejudiced by the proposed joinder, and she granted the State's motion.
Lampley's defense to the assault charges was self-defense. To rebut this claim of self-defense (and for other purposes), the State introduced evidence that Lampley had committed other acts of domestic violence against Rivas, as well as acts of domestic violence against another former girlfriend, Deborah Mueller.
Lampley's main defense to the two charges of violating the domestic violence restraining order was that he was not aware of the order's no-contact provisions. Over Lampley's objection, the superior court allowed the State to introduce evidence (1) that Lampley had previously attended legal proceedings involving domestic violence restraining orders, and (2) that he knew that such orders prohibited contact with the victim.
The jury convicted Lampley of the felony assault on Badger, the criminal trespass at Rivas's home, and one of the two counts of violating a domestic violence restraining order (the count based on Lampley's entry of Rivas's home). The jury acquitted Lampley of the misdemeanor assault on Anderson, and they also acquitted him of the other count of violating the domestic violence restraining order (the count based on Lampley's telephone call to Rivas at work).
The joinder of the three criminal cases
As just explained, Lampley's trial was a joint trial of three criminal cases: (1) Lampley's assault on Badger; (2) Lampley's trespass and violation of the restraining order when he entered Rivas's house, as well as the accompanying assault on Anderson; and (3) Lampley's telephone call to Rivas's workplace in violation of the restraining order.
When the State asked the superior court to order a joint trial of these charges, the State argued that joinder was proper under Alaska Criminal Rule 8(a)(1) and Criminal Rule 13 because Lampley's offenses in the three cases were "of the same or similar character", and it was likely that evidence of these crimes would be cross-admissible.
Alaska Criminal Rule 13 authorizes a trial court to order a joint trial of charges in different cases if those charges "could have been joined in a single indictment or information". Alaska Criminal Rule 8(a)(1) states that "[t]wo or more offenses may be charged in the same indictment or information . . . if the offenses . . . are of the same or similar character and it can be determined before trial that it is likely that evidence of one charged offense would be admissible to prove another charged offense[.]"
In its joinder motion, the State did not explain how Lampley's crimes were of "the same or similar character." Instead, the State focused on establishing the likelihood that evidence of the various offenses would be cross-admissible under Alaska Evidence Rules 404(b)(1) and 404(b)(4). In particular, the State asserted that evidence of Lampley's offenses against Rivas, and evidence of the assault on Rivas's friend Anderson, was admissible in the felony assault case involving Badger because, following Lampley's arrest, Lampley told the police that Badger and Rivas knew each other and that Badger had assaulted him because she was friends with Rivas.
(This, in essence, was an assertion that the offenses were also joinable under Criminal Rule 8(a)(3), which permits the joinder of offenses that are "based on two or more acts or transactions connected together or constituting parts of a common scheme or plan.")
Lampley opposed the proposed joinder, but he never challenged the State's assertion that the various offenses were "of the same or similar character", nor did he argue that joinder was otherwise inappropriate under Criminal Rules 8(a) and 13. Rather, Lampley contended that, even though the charges might be joinable, the superior court should exercise its authority under Criminal Rule 14 to block the joinder because Lampley would be unduly prejudiced if the cases were tried together.
In his opposition to the State's motion, Lampley did not explicitly state how he thought he would be prejudiced by the joinder. However, he "incorporated by reference" a separate motion he had filed to preclude the State from introducing evidence of his other bad acts under Evidence Rule 404(b). Apparently, Lampley's position was that joinder would allow the State to introduce evidence of bad acts that would otherwise not be heard by a jury deliberating on any single case separately.
But this type of "prejudice" would be alleviated or cured so long as the superior court concluded that the State satisfied the second prong of the test for joinder under Criminal Rule 8(a)(1) — the requirement that evidence of the various charges be cross-admissible. Thus, as the State pointed out in its superior court pleadings, Lampley's claim of prejudice was essentially conclusory.
Judge Cutler granted the requested joinder, concluding that evidence of the various charges appeared to be cross-admissible under Evidence Rule 404(b)(1) because "the basic motive, opportunity, [and] modus operandi issues . . . are intertwined here." Judge Cutler also found that the three cases were "hopelessly intertwined" because Lampley called the police after the incident involving Badger and told the police that Badger assaulted him because she was friends with Rivas, the primary victim in the other two cases.
Judge Cutler had lingering questions as to whether the trial jury needed to hear all of the details of Lampley's misdemeanor offenses in order to understand the import of Lampley's statement to the police. For this reason, she issued a notice that she intended to grant the State's motion for joinder, but she gave Lampley ten days to file a supplemental response. Lampley never filed a response, so the judge ordered the joinder.
On appeal, Lampley argues that Judge Cutler erred in three respects when she granted the joinder. The first two of Lampley's claims of error involve the two-pronged test for joinder under Criminal Rule 8(a)(1).
Lampley asserts that joinder was improper becau se the State failed to satisfy the first prong of the test — in other words, failed to establish that the charges in the different cases were of "the same or similar character". But as we just explained, Lampley never argued in the superior court that the State had failed to meet this aspect of the Rule 8(a)(1) test for joinder — even after the superior court invited him to submit supplemental briefing on the joinder issue. Because Lampley did not preserve this assertion of error, he must now show plain error if he is to prevail on appeal.
With respect to the question of whether Lampley's offenses were of "the same or similar character", it is true that the charges against Lampley — two assaults, a trespass, and two violations of a domestic violence restraining order — were disparate in terms of the elements that the State needed to prove. But this fact does not necessarily establish that the charges were dissimilar in character.
In the commentary to Standard 13-2.1 of the American Bar Association's Standards for Criminal Justice, there is a discussion of the policy supporting joint trials of offenses that are of "the same or similar character". This discussion does not focus on the elements of the defendant's various crimes, but rather on the fact that the crimes arise out of a similar pattern of behavior on the part of the defendant, and are therefore likely to be cross-admissible, even if separate trials were held:
Similar character offenses normally involve the repeated commission of the same offense[,] often with the same modus operandi. With respect to this one kind of unrelated offense, evidence of each offense is normally admissible as "same crimes" evidence at the trial of the others. Therefore, the joint trial of the offenses avoids the duplication of evidence, reduces the burden on victims and witnesses, and generates other economies. At the same time, separate trials of the offenses would not minimize problems of the weight of accusation and cumulation of evidence, because the "other crimes" evidence would be before the jury. As a result, the joint trial of similar character offenses may often be desirable.
Standards for Criminal Justice (2nd ed. 1980), Commentary to Standard 13-2.1 (citations omitted). (Quoted in Nix v. State, 653 P.2d 1093, 1096 n. 3 (Alaska App. 1982).)
See United States v. Hersh, 297 F.3d 1233 (11th Cir. 2002), where the Court of Appeals for the Eleventh Circuit upheld the joinder of charges of possession of child pornography and transporting a minor in foreign commerce with the intent to engage in criminal sexual activity. The court held that these offenses were of a "similar" character for purposes of Federal Criminal Rule 8 because they all involved the sexual exploitation of children. Id. at 1242.
The joinder of Lampley's offenses seemingly comports with this policy. The unifying factor in these offenses is the allegation that Lampley engaged in acts of confrontation and violence toward women with whom he had been romantically involved.
Because this issue comes to us as a claim of plain error, we need not resolve the exact contours of the phrase "same or similar character" in Criminal Rule 8(a)(1). It is sufficient to note that a reasonable argument can be made that Lampley's offenses are of the same or similar character because they arose from a unifying motivation and pattern of behavior. For this reason, it was not plain error for Judge Cutler to conclude that Lampley's offenses met this prong of the test for joinder.
Lampley additionally asserts that Judge Cutler failed to perform her duty under Criminal Rule 8(a)(1) to decide whether evidence of the offenses would be cross-admissible if the three cases were tried separately. More specifically, Lampley argues that Judge Cutler failed to determine before the trial began that the evidence of Lampley's various offenses would likely be cross-admissible.
It is clear from the wording of Criminal Rule 8(a)(1) that a judge who is asked to decide whether offenses should be joined for trial under this subsection of the rule must make a pre-trial determination as to whether evidence of the different offenses would likely be cross-admissible even if the cases were tried separately. Lampley argues that Judge Cutler failed to comply with this obligation and, instead, waited until trial to decide whether evidence of the various offenses would be cross-admissible.
Lampley bases his argument on a statement that Judge Cutler made when the joinder issue was being litigated. When Judge Cutler announced that she intended to grant the State's request for joinder, she stated that "the issues about cross-admissibility, prior bad acts, and so forth, are just going to get sorted out as we try the case."
Standing alone, Judge Cutler's statement appears to support Lampley's contention that the judge deferred any ruling on this second prong of the joinder test under Criminal Rule 8(a)(1). But in Lampley's case, the question of joinder was intertwined with the question of the admissibility of his prior acts of domestic violence and violations of restraining orders.
Many of these other acts were not reflected in the current charges against Lampley. Thus, the State was not only asking Judge Cutler to rule on the cross-admissibility of the various current charges, but also the admissibility of Lampley's other bad acts. Because of this, the discussion of these related issues sometimes became confused. But when the record is viewed as a whole, it is clear that Judge Cutler decided the cross-admissibility (or, more precisely, the apparent cross-admissibility) of Lampley's various current offenses at the time she announced her intention to grant the State's motion for joinder. Judge Cutler stated, "It certainly appears to [me], from what the State has outlined [in its joinder motion], that the State is on firm ground" and that "the jury for any one of these three cases would end up knowing about the allegations in the other two cases as part of the State's lawful presentation of evidence about motive, opportunity and so forth." As we noted earlier, Judge Cutler invited Lampley to submit additional briefing if he disagreed with this assessment, but he never did.
Later, after the State made a detailed offer of proof regarding the admissibility of Rivas's testimony about Lampley's other bad acts, Judge Cutler affirmed her joinder decision, declaring that the State's original reasons for moving to join the three cases were "still . . . holding water."
For these reasons, we conclude that there is no merit to Lampley's claim that Judge Cutler failed to rule on this question before trial.
Lampley's third argument regarding joinder is his claim that evidence of his various offenses was not cross-admissible. In particular, Lampley argues that his offenses involving Rivas and Anderson (the trespass into Rivas's house, the violations of the restraining order, and the misdemeanor assault on Anderson) were too dissimilar from his assault on Badger to qualify for admission at any separate trial on the assault charge involving Badger.
In Lampley's brief to this Court, he asserts that Judge Cutler found that these offenses were all acts of domestic violence, and thus evidence of these offenses was cross-admissible under Evidence Rule 404(b)(4). This characterization of Judge Cutler's ruling is not accurate.
In its joinder motion, the State cited both Evidence Rules 404(b)(1) and 404(b)(4) as alternative justifications for the proposed joinder. But Judge Cutler did not rely on Evidence Rule 404(b)(4) when she ruled that evidence of Lampley's offenses against Rivas and Anderson would likely be cross-admissible at a trial of the felony assault charge involving Badger. Rather, Judge Cutler concluded that this evidence would likely be cross-admissible under Evidence Rule 404(b)(1).
The record shows that, shortly after Lampley's assault on Badger, Lampley called the Alaska State Troopers and accused Badger of assaulting him. In his statement to the troopers, Lampley mentioned the criminal trespass incident involving Rivas. He told the troopers that Rivas was trying to have him killed because she believed that he had turned her in for a probation violation. Lampley also told the troopers that Badger was motivated to assault him because of the bad blood between him and Rivas: according to Lampley, when Badger assaulted him, she was "screaming at me about [Rivas], [and] saying that I called the cops on [Rivas]." Lampley also claimed that Anderson had attacked him.
Based on Lampley's statements to the state troopers, Judge Cutler concluded that evidence of the misdemeanor offenses against Rivas and A nderson would be admissible for non-propensity purposes — that is, admissible under Evidence Rule 404(b)(1) — in any separate trial of the felony assault charge involving Badger:
The Court: [W]e had a very clearly written articulate motion to consolidate this assault [in the] second-degree case with [the] Palmer misdemeanors for very clear reasons. The Court issued a notice of intent to allow [joinder] for those reasons. That [joinder] ultimately was granted . . . basically, because of the peculiar circumstances of this case and the statements that Jimmy Lampley made . . . about how he didn't really assault . . . these people. It was some kind of conspiracy for them to assault him, or that they started it, or whatever. . . . [C]learly, this is all intertwined, and an awful lot of the things that traditionally under [Evidence Rule] 404(b) we might be very cautious about, they're almost part of the res gestae, to use that old-fashioned phrase, because of the statements that Mr. Lampley made that are going to come in in the State's case-in-chief.
Addressing the joinder issue again a little later, Judge Cutler elaborated:
The Court: [H]aving separate trials [in these cases] would be of no use, because all the information about all of these things would come into the trial of [each separate case] anyway . . . [,] based on the defendant's statements a couple of days after that alleged assault [on Badger], and the defendant's [asserting to] law enforcement . . . that he had been a victim because of this conspiracy between these three women[.]
It is true that, sometime after Judge Cutler announced her initial joinder ruling, Lampley indicated that he would not be relying on the conspiracy defense that he outlined in his statement to the troopers — and, because he was abandoning this contention, he argued that he had not opened the door to the admission of bad acts evidence on that basis. But Lampley did not ask Judge Cutler to reconsider her joinder decision on this ground. Moreover, as the State points out, the credibility of Lampley's statement to the troopers — in particular, his assertions that Badger had assaulted him (and not the other way around), and that all three women (Rivas, Anderson, and Badger) were out to get him — was still at issue.
For these reasons, we conclude that Judge Cutler did not abuse her discretion when she ruled that evidence of Lampley's misdemeanor offenses against Rivas and Anderson was likely to be admissible under Evidence Rule 404(b)(1) to prove Lampley's felony assault against Badger.
For all of the reasons discussed in this section of our opinion, we conclude that it was not plain error to consolidate Lampley's three criminal cases in a single trial under Criminal Rule 8(a)(1) and Criminal Rule 13.
The admissibility of evidence of Lampley's other bad acts
At Lampley's trial, the State was allowed to introduce evidence of other acts of domestic violence that Lampley had committed against Kimberly Rivas and against Deborah Mueller, another former girlfriend. We will deal first with the other acts involving Rivas.
Rivas testified that she was in a romantic relationship with Lampley for four or five months, and that they lived together during part of that time. Rivas described an incident that occurred when she and Lampley were living together in Houston in the spring of 2003: Lampley physically attacked her after she refused to fetch something for him. Rivas stated that Lampley put her in a headlock and pressed her throat so tightly that her eyes bulged and she could not breathe. This went on for three or four minutes, to the point where Rivas was wondering if she would die. Then Lampley let her go. Rivas did not immediately report this assault to the authorities, but the next day she moved Lampley's things out of her house. Later, after Lampley committed another violent act toward her, Rivas reported the headlock assault to the state troopers, and she also described the same incident when she applied for a domestic violence restraining order.
The State asked Judge Cutler to admit evidence of the headlock assault at Lampley's trial. The State argued that evidence of this incident was admissible under Evidence Rule 404(b)(1) to prove Lampley's modus operandi of strangling women when they challenged his authority — to corroborate Badger's testimony that Lampley had assaulted her in the same manner. The State also argued that the evidence was admissible under Evidence Rule 404(b)(4) because it was another instance of domestic violence.
Rivas also described another assault that occurred in May 2003. Rivas testified that she and Lampley, accompanied by Rivas's friend Nicolette Anderson, were walking back from fishing at Nancy Lake. Rivas was wearing Lampley's coat. When she put her hand into the pocket of this coat, she found a piece of paper with another woman's telephone number written on it. When Rivas confronted Lampley with this discovery, he pushed her to the ground and put one hand around her throat. Rivas testified that when Anderson came to her aid, Lampley attacked her as well. According to Rivas, an "all-out" fight ensued between Lampley and Anderson for some ten to fifteen minutes. Eventually, Lampley ran off, and Rivas and Anderson called the police.
The State argued that evidence of this Nancy Lake incident was relevant to the charges involving Rivas, and relevant to the charged assault on Anderson, because the Nancy Lake assaults tended to illustrate the history and nature of Lampley's relationship with Rivas and her friend Anderson, and because this incident occurred less than a month before the charges in the present case. The State also argued that evidence of this incident was relevant to the charged assault on Badger because it was another instance where Lampley strangled a woman who challenged him.
Finally, Rivas testified that, in M arch 2003, Lampley entered her apartment, grabbed her by the throat, bashed her head against the wall, and threatened to strike her in the head with a baseball bat. According to Rivas, Lampley told Rivas's children to go into another room while he was doing this, but they would not leave their mother, and so they witnessed this assault. Rivas reported this incident to the authorities when she applied for a domestic violence restraining order.
With respect to this third incident, the State again argued that this evidence was relevant to prove the history and nature of Lampley's relationship with Rivas.
When Judge Cutler considered whether to allow the State to introduce this evidence, she evaluated the State's requests under the multi-factor test described in Bingaman v. State, 76 P.3d 398, 415-16 (Alaska App. 2003). Judge Cutler concluded that the State should be allowed to introduce the evidence that Lampley had strangled Rivas in Houston and at Nancy Lake. However, Judge Cutler deferred a final ruling on the admissibility of evidence of the fight between Lampley and Anderson at Nancy Lake until she heard Anderson's trial testimony.
(As it turned out, Anderson never testified at Lampley's trial, and the evidence of Lampley's assault on Anderson at Nancy Lake was never admitted).
Judge Cutler also deferred her ruling on the third incident (the head-bashing incident) until she heard the details of Rivas's trial testimony — although the judge noted that this evidence appeared to be relevant for a non-propensity purpose under Evidence Rule 404(b)(1).
During Rivas's trial testimony, the State asked her to describe the head-bashing incident. Lampley did not object to this testimony or remind Judge Cutler that she had not yet issued a final ruling on the admissibility of this testimony.
On appeal, Lampley argues that evidence of the first assault (the one that occurred in Houston) should have been excluded as unduly prejudicial because Rivas testified that the assault occurred in front of her daughter. But Lampley never objected on this ground when the admissibility of the evidence was being litigated in the superior court, and we find no plain error. The fact that Lampley assaulted Rivas in front of her daughter had some probative value: it tended to show that Lampley became sufficiently enraged when he was challenged by a woman that even the presence of bystanders did not inhibit him from assaultive behavior. This tended to corroborate the State's proof in the felony assault case involving Badger — because, according to the State's evidence, Badger's cries woke her adult daughter (who was sleeping in the next room), and Lampley continued to choke Badger for some time despite the efforts of her daughter and her daughter's fiancé to free her from Lampley's grasp.
Moreover, Rivas's testimony about the presence of her children was not so prejudicial that Judge Cutler should have excluded it even without objection. Rivas testified that her three-year-old daughter woke up while Lampley was choking her, and that her daughter cried and said, "Mommy, breathe. . . . Make him stop." Rivas further testified that, after the incident, she had to console both her daughter and her seven-year-old son, who had been sleeping upstairs. These details were integral to Rivas's description of the assault, and (contrary to Lampley's position on appeal) these details were not likely to lead the jury to convict Lampley based solely on concern or sympathy for the children.
Lampley also argues that the Houston incident was irrelevant because it was dissimilar to the assault on Badger. But Lampley's claim of dissimilarity rests on his assertion that Badger (unlike Rivas) was the first aggressor in their encounter. This characterization of Lampley's assault on Badger rests on a construction of the evidence in the light most favorable to Lampley.
In her testimony, Badger conceded that she did things to provoke Lampley: when Lampley would not leave her room, she rolled him out of bed, and she also took his cell phone and dropped it into the toilet. But despite the provocative nature of these acts, they were not violent. Viewing the evidence in the light most favorable to Judge Cutler's ruling, it was Lampley who initiated the violence. Moreover, both incidents were similar in that Lampley strangled a woman who challenged his authority, and he strangled both women in the same manner (by pressing his forearm against their throats). Given this similarity between the Houston incident and the charged assault on Badger, Judge Cutler could reasonably conclude that evidence of the Houston incident was admissible under Evidence Rule 404(b)(1) because it tended to establish a distinctive pattern of behavior on Lampley's part, and also because it tended to rebut Lampley's claim of self-defense with respect to the assault on Badger.
Accordingly, we find that Judge Cutler did not abuse her discretion when she admitted Rivas's testimony about the Houston incident.
Lampley next argues that Judge Cutler abused her discretion by admitting evidence of the strangling incident at Nancy Lake because the State offered too little evidence that this strangling actually occurred.
Judge Cutler acknowledged that the evidence pertaining to Lampley's act of strangling Rivas at Nancy Lake was not as strong as the evidence that he strangled Rivas at their home in Houston — primarily because, when Rivas first reported the Nancy Lake incident to the authorities, she did not mention being strangled. (Rivas did mention this aspect of the incident when she applied for a long-term domestic violence restraining order, and when she reported Lampley's June 19th violation of that restraining order.) However, Judge Cutler stated that Rivas's testimony "had a ring of truth" to it, and the judge concluded that it should be "up to the jury to decide if they also think [that Rivas's testimony concerning this incident] has the same ring of truth."
Lampley argues that Judge Cutler should not have admitted this evidence because it was not "strong". But although the strength of the testimony is one factor to be considered, this one factor does not determine the admissibility of the evidence.
Here, Lampley claimed self-defense as justification for his assaults, and therefore his intent was seriously disputed. The Nancy Lake strangling incident was similar enough to the Houston strangling incident, and to the felony assault on Badger (which also involved strangling), that Judge Cutler could reasonably conclude that evidence of Lampley's conduct at Nancy Lake was admissible under Evidence Rule 404(b)(1) to establish Lampley's pattern of strangling women who challenged his authority and, thus, rebut his claim of self-defense.
Finally, Lampley challenges Judge Cutler's decision to allow testimony of the incident where Lampley bashed Rivas's head. But as we explained earlier, Judge Cutler never issued a final decision on the admissibility of this evidence. When the issue was litigated, Judge Cutler tentatively concluded that this testimony would be admissible for non-propensity purposes under Evidence Rule 404(b)(1), but she declared that she would defer a final decision until she heard Rivas's trial testimony. Later, when Rivas was on the stand and the State elicited this testimony from her, Lampley did not object, nor did he remind Judge Cutler that the admissibility of this testimony had been left undecided. For this reason, Lampley failed to preserve this claim of error.
Nor do we find plain error. Lampley's attack on Rivas was relevant under Rule 404(b)(1) to establish Lampley's intent and motive for the crimes he committed during the June 17th incident charged in this case. It was also relevant because, after the head-bashing incident, Rivas locked herself in the bathroom, and Lampley thereupon broke the bathroom door. This fact was pertinent to the three charges against Lampley stemming from his entry into Rivas's home on June 17, 2003 — because Lampley's purported reason for entering Rivas's home on that day was to pay for the broken door.
Lampley argues that, even if this evidence had probative value, its potential for unfair prejudice outweighed its probative aspects, and thus it should have been excluded under Evidence Rule 403. But as we explained, Lampley never demanded that Judge Cutler make a final ruling on the admissibility of this evidence. Moreover, the purportedly prejudicial aspects of this evidence do not so obviously outweigh the probative value of the evidence as to demonstrate plain error.
For these reasons, we uphold the admissibility of the evidence of Lampley's other bad acts involving Kimberly Rivas. We now turn to the evidence of Lampley's other bad acts involving Deborah Mueller.
Judge Cutler allowed the State to present evidence of two instances of domestic violence that Lampley committed against Mueller.
The first of these incidents occurred on December 30, 1997, at Mueller's mother's trailer. Lampley and Mueller had been involved in a romantic relationship for about two years, and Lampley periodically stayed with Mueller.
Mueller was in a back bedroom, watching a movie with her four-year-old son while Lampley was at the other end of the trailer, listening to music. Lampley came into the bedroom and asked Mueller if she had any beer. Mueller answered that she did have beer, but that Lampley could not have any because she was saving the beer for New Year's Eve.
Upon hearing this, Lampley closed the bedroom door and would not let Mueller leave. Then he pushed her face down on the bed and strangled her with his arm for about forty-five seconds, while Mueller's son tried to pull Lampley off his mother. Eventually Lampley let Mueller leave the bedroom, but he locked the front door of the trailer so that she could not leave.
Mueller called 911, but Lampley hung up the phone before she had a chance to speak. When the 911 operator called back, Lampley said that everything was fine — but Mueller screamed in the background, so Lampley hung up again. Lampley then chased Mueller and, when he caught her, he held his arm around her neck, hitting her in the back of the head and telling her never to call the police. Mueller managed to get away, and she grabbed her son and ran to a neighbor's home, where she again called 911. Lampley was eventually convicted of assault for this incident.
The second of these incidents took place at Mueller's cousin's wedding in November 1995. Lampley was drinking whiskey and was very angry. Because Mueller did not want to be around Lampley, she went to talk to a male friend in one of the bedrooms, shutting the door and locking it. Lampley came to the door and, when he discovered that it was locked, he became angry and accused Mueller of cheating on him. After they got back to their hotel, Lampley again accused Mueller of cheating on him. Mueller tried to call the front desk to summon help, but Lampley ripped the telephone from the hotel wall. The argument then escalated. Lampley pushed Mueller into the bathroom, where he strangled her for about thirty seconds until she couldn't breathe. Then he turned around and punched a hole in the bathroom door. At this point, Mueller got away and ran to the front desk. This case was apparently resolved without a criminal conviction, as part of a plea bargain.
Judge Cutler concluded that Lampley's conduct in both of these incidents was relevant because it tended to prove Lampley's repeated behavior of strangling women who were "not . . . doing what [he thought] they should be . . . doing at the time." Judge Cutler agreed with the State that this repeated conduct was relevant to rebut Lampley's claims that he acted in self-defense during the charged incidents involving Badger, Rivas, and Anderson; as well as to rebut Lampley's claim that these three women were conspiring against him. Judge Cutler also found that this evidence was relevant to rebut Lampley's claim that he did not purposely strangle Badger, but rather intended only to restrain her.
On appeal, Lampley argues that the superior court should have excluded this evidence under Evidence Rule 403 because its probative value was outweighed by the danger of unfair prejudice. He also again claims that the incidents involving Mueller are dissimilar to the assault on Badger because (according to Lampley) Badger was the initial aggressor.
But, as we discussed earlier, Lampley's assertion that Badger was the initial aggressor rests on a construction of the evidence in the light most favorable to Lampley; we are obliged to construe the evidence in the light most favorable to Judge Cutler's ruling. In addition, we agree with Judge Cutler that Lampley's conduct toward Mueller (like his conduct toward Rivas in the uncharged incidents of domestic violence) tended to show that, when Lampley became angry with a woman, he would choke her until she could not breathe — thus establishing Lampley's modus operandi, and rebutting his claims of self-defense, conspiracy on the part of the government witnesses, and lack of intent to strangle Badger. In other words, the challenged evidence was admissible under both Evidence Rule 404(b)(1) and Evidence Rule 404(b)(4).
Lampley also argues that the strangling incident in the trailer was unduly prejudicial because Mueller testified that the assault occurred in front of her young son. Lampley did not object on this ground in the superior court, so he must now show plain error. We find no plain error. Mueller testified that her son was there, and that he was upset, but Mueller's testimony focused on Lampley's conduct, and she never suggested that Lampley directed violence at the child.
In addition to Mueller's testimony concerning these two episodes of assault, Judge Cutler also admitted Mueller's testimony concerning the fact that she twice obtained restraining orders against Lampley (once in 1995, and again in 1997), and that Lampley violated these restraining orders "endless times".
Judge Cutler ruled that this evidence was admissible to rebut one of Lampley's defenses at trial: his claim that he was unaware that he was barred from contacting Rivas. (Lampley contended that he remained ignorant of the no-contact provisions of Rivas's restraining order because he lost telephone contact with the court hearing before all of the provisions of the order were read aloud.) Judge Cutler reasoned that Mueller's testimony tended to show that, because of Lampley's prior experience with domestic violence restraining orders, he knew that such restraining orders barred the respondent from contacting the petitioner. We agree with Judge Cutler's analysis of this issue.
Lampley argues that, even assuming that this evidence was relevant, it should nevertheless have been excluded because, in Rivas's case, he violated the restraining order by visiting her and telephoning her, whereas in Mueller's case he violated the restraining order by writing letters to her. This distinction is not material to the ground of relevance that Judge Cutler identified.
Lampley argues that this evidence also should have been excluded because it was "completely irrelevant" to his assault on Badger, and because it portrayed him in a bad light to the jury. The fact that the evidence may have been irrelevant to one of the charges against Lampley does not negate the fact that the evidence was relevant to the other charges against him. And, with respect to Lampley's claim that the evidence portrayed him in a bad light, we note that Lampley makes no specific claim of prejudice; rather, he appears to be relying solely on the fact that this evidence, like any other evidence of other bad acts, had the potential for unfair prejudice. But Judge Cutler found that the probative value of this evidence justified its admission, and the record supports this ruling. We note that Mueller's testimony on this issue was brief, and it was not inflammatory. Judge Cutler could reasonably conclude that the jury would consider this testimony only for its proper purposes, and that the testimony would not taint the jury's consideration of unrelated issues in the case (for instance, whether Lampley was guilty of assaulting Badger).
Next, Lampley argues that Judge Cutler "improperly acted as an advocate for the State" when the judge participated in Mueller's voir dire examination — i.e., the examination outside the presence of the jury that was aimed at determining the admissibility of Mueller's testimony concerning the prior domestic violence restraining orders, and Lampley's knowledge of them.
It appears that Lampley was convicted of thirteen separate violations of the domestic violence restraining orders obtained by Mueller. However, Judge Cutler denied the State's request to present evidence of these thirteen criminal convictions. Rather, the judge limited Mueller's testimony to the fact that Mueller had been present at "legal proceedings" (a euphemism for Lampley's criminal trial) where, in the judge's words, "it had to be obvious to Mr. Lampley that, when there's a protective order, . . . you cannot contact the person in any way, shape, or form".
The judicial conduct that Lampley complains of occurred while Lampley's defense attorney was questioning Mueller during this voir dire examination.
The defense attorney did not question Mueller about Lampley's criminal trial, but instead asked Mueller about the restraining order hearings. Some of these were ex parte ( i.e., Mueller was in court, but Lampley was not), and some of these took place while Lampley was in custody. During the defense attorney's questioning, it became apparent that Mueller was not sure exactly when Lampley was present and when he was not. Mueller testified that she remembered the hearing judge talking to Lampley on the telephone, and then Lampley hanging up on the judge, but Mueller could not remember precisely when that occurred, or which hearing was involved.
When Lampley's attorney tried to pin down these details, by asking Mueller about specific case numbers, Judge Cutler tried to move things along. She told the defense attorney, "I'm not saying [that] you can't ask that in front of the jury; but I'm saying [that,] in terms of that [inquiry] affecting the ruling [on the admissibility of Mueller's testimony], let's try just to work on the foundation here."
Lampley's attorney continued to question Mueller about the restraining order hearings, and the attorney eventually asked Judge Cutler for a continuance to gather evidence to establish that Lampley was not, in fact, present at a hearing at which Mueller claimed he was present. Judge Cutler denied the requested continuance. She then questioned Mueller, using leading questions, to establish that, regardless of Lampley's presence or absence at particular restraining order hearings, Lampley had been present at his own criminal trial — at which time he was made aware that domestic violence restraining orders contain no-contact provisions. This is the judicial conduct that Lampley complains of on appeal.
We find no error. Under Alaska Evidence Rule 104(a), a trial judge has wide-ranging authority to determine the issues of fact that underlie the judge's rulings on the admissibility of evidence. Judges also have the authority to question witnesses for the purpose of developing facts, clarifying testimony, or otherwise assuring a fair trial, as long as the judge's questioning does not convey an opinion to the jury concerning the credibility or truth of particular testimony, or concerning the verdict that should be reached. (See also Alaska Evidence Rule 614 and commentary.)
Huntington v. State, 151 P.3d 523, 528 (Alaska App. 2007).
United States v. Pe Ñ a-Garc Í a, 505 F.2d 964, 967 (9th Cir. 1974); see generally Barbara E. Bergman and Nancy Hollander, Wharton's Criminal Evidence (15th ed. 1997), § 8.10, Vol. 2, pp. 468-69.
As Lampley concedes, none of Judge Cutler's challenged questioning of Mueller took place in front of the jury. And Judge Cutler's questioning appears to have been calculated to elucidate the grounds for admitting Mueller's testimony. Accordingly, we reject Lampley's contention that Judge Cutler acted improperly in this matter.
Lampley's attack on the constitutionality of AS 18.66.990(3) (5)
Alaska Evidence Rule 404(b)(4) is a provision that authorizes the admission of evidence of a defendant's other acts of domestic violence, even when that evidence would not be admissible under Evidence Rule 404(b)(1) because it has no relevance other than "propensity" — i.e., no relevance except to establish that the defendant is a person who characteristically engages in acts of domestic violence, and thus the consequent likelihood that the defendant acted true to character during the episode being litigated.
See Bingaman v. State, 76 P.3d 398, 408 (Alaska App. 2003).
Evidence Rule 404(b)(4) states that, for purposes of interpreting that rule, the terms "domestic violence" and "crime involving domestic violence" are to be given the meanings codified in AS 18.66.990.
In AS 18.66.990, the terms "domestic violence" and "crime involving domestic violence" are declared to be synonymous, and the definition of these terms is split into two parts. Subsection 990(3) contains the basic definition, but that basic definition hinges on the subsidiary definition of "household member" contained in subsection 990(5).
In this appeal, Lampley contends that there is an unconstitutional vagueness in two clauses of the definition of "household member" codified in subsection 990(5). Specifically, Lampley attacks subsections 990(5)(C) and 990(5)(D), which (respectively) declare that the term "household member" includes people "who are dating or who have dated" and people "who are engaged in or who have engaged in a sexual relationship". Lampley contends that these two concepts — "dating" and "sexual relationship" — are so nebulous that it is impossible to frame a reasonably definite interpretation of what subsections 990(5)(C) and (D) mean.
And, based on the asserted vagueness of subsections 990(5)(C) and (D), Lampley argues that Evidence Rule 404(b)(4) must be unconstitutionally vague as well — since the scope of this evidence rule is governed by the definition of "domestic violence" codified in AS 18.66.990.
Lampley did not raise these constitutional claims in the superior court, so he must show plain error. Because Lampley does not claim that the statute in question infringes the right of free speech under the First Amendment, the burden of showing plain error means that Lampley must show either that it would be impossible for an appellate court to arrive at a reasonably clear definition of the terms "dating" and "sexual relationship" through normal methods of statutory interpretation, or that Lampley's relationships with Badger and Rivas would clearly fall outside any reasonable judicial construction of the terms "dating" and "sexual relationship". In addition, Lampley would have to show that he was prejudiced by the improper admission of evidence under Evidence Rule 404(b)(4), to the extent that allowing his convictions to stand would perpetuate manifest injustice.
See DeNardo v. State, 819 P.2d 903 (Alaska App. 1991). In DeNardo, we explained that a statute is not unconstitutionally vague or ambiguous merely because reasonable people might disagree about the meaning of the statute:
[T]he fact that people can, in good faith, litigate the meaning of a statute does not necessarily (or even usually) mean that the statute is so indefinite as to be unconstitutional. The question is whether the statute's meaning is unresolvably confused or ambiguous after it has been subjected to legal analysis. If study of the statute's wording, examination of its legislative history, and reference to other relevant statutes and case law makes the statute's meaning clear, then the statute is constitutional.
DeNardo, 819 P.2d at 908 (emphasis in the original).
See Petersen v. State, 930 P.2d 414, 429 (Alaska App. 1996):
[W]hen a constitutional challenge is leveled against a statute whose main concern is conduct rather than speech, "the possibility of difficult or borderline cases will not invalidate a statute" if there is a "hard core of cases to which . . . the statute unquestionably applies". Stock v. State, 526 P.2d 3, 9 (Alaska 1974). See Broadrick v. Oklahoma, 413 U.S. 601, 615-16; 93 S.Ct. 2908, 2918; 37 L.Ed.2d 830, 842 (1973) (Before a statute will be invalidated for overbreadth "where conduct and not merely speech is involved, . . . the overbreadth of [the] statute must [be] substantial [,] . . . judged in relation to the statute's . . . legitimate sweep. [If not], whatever overbreadth may exist should be cured through case-by-case analysis[.]").
See Hosier v. State, 1 P.3d 107, 112 (Alaska App. 2000); Potts v. State, 712 P.2d 385, 390 (Alaska App. 1985); Roberts v. State, 680 P.2d 503, 507 (Alaska App. 1984) (to constitute "plain error", an error must be so prejudicial to the fairness of the proceeding that failure to correct the error would perpetuate manifest injustice).
Lampley's claim of plain error fails for a number of reasons. First, Lampley has not convinced us that the terms "dating" and "sexual relationship" are irremediably ambiguous. It is true that, in particular cases, reasonable people might disagree as to whether a couple's series of social engagements constituted "dating", or whether their relationship was a "sexual" relationship. But the fact that there may be individual cases that are difficult to classify does not mean that these two terms — "dating" and "sexual relationship" — have no objectively ascertainable meaning.
Second, because Lampley did not raise this issue in the superior court, Judge Cutler made no findings of fact concerning the precise nature of Lampley's relationships with Rivas and Badger. This is fatal to Lampley's claim of plain error — because, construing the evidence in the light most favorable to upholding the superior court's judgement, the evidence supports a finding that Lampley both "dated" and had a "sexual relationship" with both women.
We have already adverted to Kimberly Rivas's testimony that she and Lampley had a romantic relationship for four or five months, and that she and Lampley lived together during part of that time. Indeed, Lampley does not actively dispute that his relationship with Rivas was a "sexual relationship" as that term is commonly understood. Rather, Lampley focuses his arguments on his relationship with Lena Badger. But even though Lampley's relationship with Badger was of shorter duration than his relationship with Rivas, the record in this case could reasonably support the conclusion that Lampley's relationship with Badger constituted "dating" and was "sexual".
In the statement that Lampley gave to the police shortly after the assault on Badger, Lampley declared that he "dumped Lena probably like a month before [the physical confrontation between him and Badger] transpired." Lampley's characterization of his actions — i.e., his assertion that he "dumped" Badger — supports the conclusion that Lampley believed that he and Badger had been dating. In his statement, Lampley also acknowledged buying roses for Badger on the night of the assault — another indication that they were "dating" in the sense that they were engaged in an ongoing romantic relationship.
Moreover, during the defense attorney's cross-examination of Badger at Lampley's trial, the defense attorney openly challenged Badger's assertion that "there wasn't really a relationship" between her and Lampley:
Defense Attorney: I [am referring to] the relationship that you [two] had just recently broken off . . . just before Thanksgiving.
Badger: There wasn't — there wasn't really a relationship [between us].
Defense Attorney: Well, there was some kind of relationship, isn't that right, ma'am?
Badger: Yeah, we had — yes.
Defense Attorney: Okay. And . . . [Lampley] had broken that relationship off with you just before Thanksgiving. Isn't that right?
. . .
Badger: I think it was kind of mutual.
Defense Attorney: All right. You [two] had decided [that] this relationship [wa]sn't working just before Thanksgiving, . . . isn't that right?
Badger: Yes.
. . .
Defense Attorney: [But] prior to you and he mutually breaking off the relationship, you did not have a problem with him sleeping at your father's house?
Badger: No.
Defense Attorney: "No" — meaning [what]?
Badger: I didn't have a problem with it.
And finally, in closing argument, Lampley's attorney suggested to the jury that Badger initiated the physical confrontation that ultimately led to the assault charge against Lampley because Badger was upset that her relationship with Lampley was over.
In sum, the record supports the conclusion that Lampley and Badger were "dating" in the sense that they engaged in an ongoing romantic relationship.
Finally, Lampley's claim of plain error fails because he can not show that he was prejudiced by any purported flaw in the definition of "household member".
As explained above, Lampley's argument is that, due to the purported vagueness of the terms "dating" and "sexual relationship", there is a consequent vagueness in the definition of "household member", and thus a consequent vagueness in the definition of "domestic violence", and thus a consequent vagueness in Evidence Rule 404(b)(4), the special provision that allows the admission of evidence of acts of domestic violence to establish the defendant's character to engage in such conduct. Because this is Lampley's argument, he would only suffer prejudice if evidence was improperly admitted against him under Evidence Rule 404(b)(4).
But, as we explained in the preceding sections of this opinion, the superior court's evidentiary rulings regarding evidence of Lampley's other bad acts — both the court's rulings regarding the cross-admissibility of evidence of the various charges against Lampley, and the court's rulings regarding the admissibility of evidence of Lampley's other bad acts involving Rivas and Mueller — are all supportable under Evidence Rule 404(b)(1), the general provision governing evidence of other bad acts.
In other words, all of this evidence was admissible apart from the provisions of Evidence Rule 404(b)(4). Accordingly, Lampley has failed to establish that the fairness of his trial was manifestly prejudiced — indeed, prejudiced in any manner — by the purported vagueness of the definitions of "dating" and "sexual relationship" in AS 18.66.990(5).
For all of these reasons, we conclude that Lampley has failed to show that, as a matter of plain error, the definition of "household member" codified in AS 18.66.-990(5) is unconstitutionally vague.
The testimony given by the state trooper regarding the nature of Lampley's injuries and the nature of Lena Badger's injuries
As we have already noted, Lampley claimed self-defense as a justification for his use of force against Lena Badger. At trial, the jury heard evidence of Lampley's statement to the state troopers in which he asserted that he had been asleep at Badger's father's house when Badger bit his toe; that he kicked back with his legs as he tried to push himself toward the head of the bed (away from this attack); and that, when he saw the silhouette of a head coming toward him, he stuck out his hand to ward off any further attack. According to Lampley, when he stuck out his hand, Badger bit his finger. Lampley asserted that, in response to this continued biting, he grabbed Badger by the throat and threw her onto the bed.
In addition, during the defense case, Lampley's attorney introduced photographs of Lampley's injuries (taken by an investigator at the Public Defender Agency). The defense attorney also called a nurse, Ellen Lentz, to testify that she treated Lampley for a red, swollen toe on December 12, 2003. According to Lentz, Lampley reported that he "had awoken in excruciating pain and found that his toe was being bitten." Lentz testified that the injury to Lampley's toe was consistent with a bite — although the injury was also consistent with Lampley's having stubbed his toe or having kicked something, because no teeth marks were evident.
The prosecutor attempted to rebut Lampley's version of events by asking the investigating trooper, Paul Wegrzyn, if Badger's injuries were consistent with her being kicked only once (as Lampley claimed) and then restrained. Trooper Wegrzyn replied that Badger's injuries were not consistent with this scenario. The prosecutor then asked Wegrzyn if Badger's injuries were consistent with her being struck multiple times. Wegrzyn said that Badger's injuries were consistent with her having received multiple blows.
Lampley's attorney objected to these inquiries and to the trooper's answers. The defense attorney argued that Wegrzyn did not have the expertise to answer these inquiries. Judge Cutler overruled these objections.
Following Judge Cutler's ruling, Wegrzyn explained the basis for his opinion about Badger's injuries:
Prosecutor: Trooper Wegrzyn, you testified earlier that, [based on] your training and experience, the injuries sustained were not consistent with just one kick . . .
Wegrzyn: Right. . . . That's correct.
Prosecutor: Why is that?
Wegrzyn: [My conclusion is] based on the location of the wounds and the scratches on [Badger's] forehead. It could be possible that one kick could cause a black eye, [or that] one kick could cause a scraped lip or a fat lip or however you want to put it. But it's difficult to imagine that one kick could do all three at the same time.
Later during the trial, the prosecutor asked Trooper Wegrzyn to give his opinion as to whether Lampley's injuries were "offensive" or "defensive".
Based on the photographs of Lampley's injuries offered by the defense, Wegrzyn testified that the scratch over Lampley's left eye was consistent with Badger defending herself against attack. Wegrzyn further testified that the abrasions on Lampley's finger were also consistent with Badger defending herself (by biting Lampley's finger), or the abrasions might have been caused by Lampley hitting Badger. In addition, Wegrzyn stated that the bruise on Lampley's left arm could have been caused by someone pulling on the arm (in other words, caused either by Badger's defensive action, or by the two people who came to her aid). Wegrzyn concluded by stating that all of the injuries observed on Lampley's body were consistent with his having assaulted Badger.
During the defense attorney's cross-examination of Trooper Wegrzyn, Wegrzyn conceded that he was not a doctor, nurse, or a pathologist, and that his medical training was limited to basic CPR and first aid. The trooper further conceded that the scratch above Lampley's eye was consistent with Lampley's version of events ( i.e., that Lampley sustained this injury when Badger attacked him), and that the injury to Lampley's toe could have been caused by a bite — because, if Lampley had been wearing socks, his skin would not necessarily bear noticeable teeth marks. W egrzyn also admitted that he could not say for sure whether the bite on Lampley's hand or the scratch on Lampley's nostril were offensive or defensive wounds.
In other words, if Wegrzyn's testimony on direct examination and cross-examination is combined, the conclusion he reached was that Lampley's injuries were consistent with either Lampley's or Badger's version of events.
On appeal, Lampley argues that Wegrzyn's testimony should not have been admitted because he lacked the necessary expertise to offer these opinions. Lampley alternatively argues that, if Wegrzyn was qualified to give this type of testimony, the State violated the pre-trial discovery rules by failing to list Wegrzyn as an expert witness.
Our state supreme court has acknowledged that testimony about cause and effect, or about conclusions drawn from observations, can be "lay" testimony even when it is presented by people with specialized training or experience. The test is whether the basis of the conclusion (once explained) can be readily understood and assessed by lay jurors.
See Choi v. Anvil, 32 P.3d 1, 3-4 (Alaska 2001), where the supreme court held that expert testimony was not required to establish a causal connection between two events unless "there is no reasonably apparent . . . causal relationship between the event demonstrated and the result sought to be proved." In Choi, the court upheld the admission of lay testimony that "described a situation easily understood by a jury: a rear-end automobile collision causing relatively common injuries [with] symptoms like pain, stiffness, and loss of strength". The court noted that, "[a]lthough a medical expert might have more precisely described the relationship between the impact and the effects described by the plaintiffs, the jury, using everyday experience, could readily find a causal relationship without this expert assistance." Id. at 4.
Similarly, in Zok v. Collins, 18 P.3d 39, 42-43 (Alaska 2001), the Supreme Court held that, even though expert testimony was typically required to establish a claim of legal malpractice ( i.e., an attorney's breach of the applicable duty of care or fidelity), the claim can be supported by the testimony of lay witnesses "where [the] negligence [would be] evident to lay people[,] or where the fault is so clear as to constitute negligence as a matter of law." In Zok, the court held that the evidence of the attorney's "general laxity in prosecuting Zok's [lawsuit was] so obviously a breach of an attorney's duty to his client that the average juror untrained in the law would be able to make a finding of negligence." Id. at 42.
The supreme court has applied this same rule in medical malpractice actions: see D.P. v. Wrangell General Hospital, 5 P.3d 225, 228 (Alaska 2000).
Returning to Lampley's case, we conclude that Trooper Wegrzyn gave "lay opinion" testimony — and not "expert" testimony — when he offered his opinion as to whether Badger's observed injuries were caused by a single blow or by multiple blows. As can be seen from Wegrzyn's explanation of his conclusion, his opinion did not rest on technical expertise, but rather on matters of common experience — and his conclusion (once explained) could readily be understood and assessed by lay jurors.
Lampley alternatively claims that Wegrzyn's testimony concerning Badger's injuries was improper because it was not based on the trooper's perceptions, but rather based on what the trooper heard during opening statements. Lampley is referring to the following exchange between the prosecutor and Trooper Wegrzyn during direct examination:
Prosecutor: Trooper Wegrzyn, did you — you were sitting here during opening [statements], is that right?
Wegrzyn: That's correct.
Prosecutor: Okay. Are [Lena Badger's] injuries consistent with someone who has been kicked [only] once?
Wegrzyn: No.
Lampley's characterization of this exchange is mistaken. The prosecutor did not ask Wegrzyn to assess Badger's injuries based on any description of these injuries in the opening statements. This would have been unnecessary, since Wegrzyn personally observed Badger's injuries on the night of the assault. Rather, the prosecutor asked Wegrzyn whether Badger's injuries were consistent with the defense attorney's assertion, during opening statements, that Lampley kicked Badger in the face only once, after she bit his toe.
In short, nothing in this exchange suggests that Wegrzyn lacked personal knowledge of Badger's injuries.
The second portion of Wegrzyn's testimony — his analysis of whether Lampley's injuries were "defensive" or "offensive" — is more problematic. But we conclude that, even if it was error to allow the trooper to give this testimony, the error was harmless. As we have explained, Wegrzyn ultimately testified that Lampley's injuries were consistent with either the State's theory of the case or Lampley's theory of the case. Accordingly, we conclude that Wegrzyn's testimony on these issues did not appreciably affect the jury's verdict decision. Was there sufficient evidence to support Lampley's conviction for violating the domestic violence restraining order on June 17th, 2003?
See Love v. State, 457 P.2d 622, 632 (Alaska 1969) (for non-constitutional errors, the test for whether an error requires reversal of a criminal conviction is whether the error "appreciably affect[ed] the jury's verdict").
Lampley argues on appeal that there was insufficient evidence presented at his trial to support his conviction for violating the domestic violence restraining order on June 17, 2003 (by entering Rivas's home in the middle of the night).
Lampley points out that the restraining order was not served on him until well after this event. (At trial, at Lampley's request, Judge Cutler took judicial notice that the restraining order was not actually served on Lampley until July 6, 2003.) Lampley also points out that, even though he was present by telephone at the court hearing on June 10, 2003, when the restraining order was issued, his telephone connection was severed before the end of that hearing. Based on these facts, Lampley contends that the evidence was insufficient to support a reasonable conclusion that Lampley was aware that his entry into Rivas's home constituted a violation of the restraining order.
But Lampley's claim overlooks other evidence at his trial. State Trooper Troy Shuey, who investigated the June 17th incident, testified that Lampley told him on that date that he was aware of the restraining order and that he had been present, telephonically, at the hearing at which the restraining order was issued. Indeed, Trooper Shuey testified that, as he was reading aloud various portions of that restraining order to Lampley, "[Lampley] finished . . . key portions of it."
In addition, as we have already noted, Deborah Mueller testified that, in the late 1990s, Lampley was present at criminal proceedings at which the no-contact provisions of domestic violence restraining orders were discussed, and that Lampley was therefore aware that this was a standard component of such orders.
In short, a fair-minded juror could conclude, based on this evidence, that Lampley knew that he was violating a restraining order when he entered Rivas's home on the night of June 17th. Thus, there was sufficient evidence to support the jury's verdict.
Is the jury's decision to convict Lampley of violating the domestic violence restraining order on June 17th irreconcilable with its decision to acquit Lampley of violating the same restraining order on June 19th?
Lampley raises a separate claim that his jury returned inconsistent verdicts when they convicted him of violating the restraining order on June 17th (by entering Rivas's home) but acquitted him of violating that same restraining order on June 19th (by telephoning Rivas at work).
Lampley did not raise the issue of potential verdict inconsistency until after the jury was discharged. He therefore waived his right to challenge the verdicts on this basis.
See City of Homer v. Land's End Marine, 459 P.2d 475, 480 (Alaska 1969).
Moreover, Lampley's claim is meritless. To prove that the jury's verdicts are inconsistent, Lampley must show that the verdicts are "logically inconsistent" in the sense of being "irreconcilably in conflict".
Brown v. Anchorage, 915 P.2d 654, 660 (Alaska App. 1996).
To convict Lampley of violating the restraining order on June 17th, the jury had to find (1) that Lampley knew that he was subject to an order that prohibited him from "telephon[ing], contact[ing,] or otherwise communicat[ing] directly or indirectly with Kimberly Rivas", and (2) that Lampley knowingly committed an act (entering Rivas's home) in violation of that order.
The question is whether the jury could logically find that Lampley was guilty of this offense but, at the same time, not guilty of violating the same restraining order when he telephoned Rivas at work on June 19th. We conclude that the jury's decisions are not irreconcilable.
The jury might have found that Rivas's testimony concerning the June 17th incident ( i.e., her testimony that Lampley entered her house in the middle of the night) was more credible than her testimony concerning the June 19th incident ( i.e., her testimony that Lampley called her at work). We note that the June 17th incident was witnessed by a third person (Nicolette Anderson).
Alternatively, as the State suggests, the jury might have had a doubt, after listening to the tape of the restraining order hearing, whether Lampley's telephonic connection to that hearing was severed before the court directed him to have no telephone contact with Rivas.
Or, as Lampley's attorney urged during closing argument, the jury might have acquitted Lampley of violating the restraining order on June 19th because the jury heard Lampley's statement to the police in which he asserted that Rivas had earlier initiated telephonic contact with him (after the restraining order was issued).
For these reasons, we reject Lampley's claim that the verdicts are inconsistent.
Was Lampley denied his right to counsel during the proceedings to revoke his probation?
Lampley next claims that he was denied his right to the assistance of counsel when the superior court adjudicated the State's petition to revoke Lampley's probation from an earlier case (based on Lampley's convictions of the offenses in the present case). The State concedes that Lampley was not represented by an attorney during the probation revocation proceeding, but the State argues that any error was harmless. We agree.
The record shows that, after Judge Cutler revoked Lampley's probation based on his commission of these new offenses, the court scheduled a separate sentencing hearing to decide the consequ ences of Lampley's violation of probation. This hearing was held in Anchorage, and District Court Judge Jack W. Smith presided over the hearing. Lampley was represented by a new attorney at this sentencing hearing — and, during the hearing, the following colloquy occurred between Judge Smith and Lampley's attorney:
Defense Attorney: [J]ust so it's clear on this record: . . . you and I both [entered] this case after there had been an adjudication [of the petition to revoke probation, even though there never was a formal] adjudication [hearing]. [Had there] been an adjudication [hearing], Mr. Lampley would have denied [the allegations that he violated his probation]. The court would, of course, have found the [petition to be proved] based on [Lampley's new] convictions.
The Court: Right.
Defense Attorney: So [one] of my . . . points on appeal will be . . . that he did not violate probation, in that there [will be] an attack on the underlying convictions. . . . I just want to make that clear [for the] record, that there will be that merit attack . . .
The Court: Okay.
Defense Attorney: . . . because there never really was [a formal] adjudication [hearing] at which to make that [argument].
The Court: All right. And . . .
Defense Attorney: It was no fault of yours.
The Court: And, . . . just so the record's also clear, I think we discussed that, and I offered to go back and — I mean, when you first came into the case, I offered to send the whole thing back and do [a formal] adjudication [of the revocation petition]. [You] said it would probably be moot. So I think that's also in the record.
Although the record is unclear, we will assume, for purposes of argument, that Lampley was in fact deprived of his right to counsel when Judge Cutler proceeded to revoke Lampley's probation from the earlier case after the trial jury announced its verdicts in the present case.
(We say that the record is "unclear" because Lampley's trial attorney initially suggested that his appointment included the authority to represent Lampley in any probation revocation proceeding but, after Lampley's trial, the attorney told the court that his appointment did not include the probation revocation proceeding. The trial judge never confronted the attorney with this discrepancy.)
But even so, the remedy for a violation of constitutional rights must be tailored to the violation. Here, the claimed violation is that Lampley was denied his right to a formal adjudication hearing and his concomitant right to the assistance of counsel at that hearing. But as the above-quoted colloquy shows, the court apparently recognized the error — i.e., recognized that Lampley had not been given a formal hearing, and had not been afforded his right to counsel — and the court offered to give Lampley a new revocation hearing where he would be assisted by counsel. Lampley, who was now represented by a new attorney, apparently declined this opportunity.
See United States v. Morrison, 449 U.S. 361, 364-65; 101 S.Ct. 665, 667-68; 66 L.Ed.2d 564 (1981).
In his briefs to this Court, Lampley has not contested — indeed, he has not even acknowledged — the existence or import of this exchange between Judge Smith and his attorney. Accordingly, we conclude that any error committed by Judge Cutler in this matter was later rendered harmless beyond a reasonable doubt. Lampley's attack on Judge Smith's decision at the probation revocation sentencing hearing
As his final point on appeal, Lampley argues that Judge Smith failed to review all of the sentencing materials that Lampley submitted, and thus Judge Smith failed to make a conscientious judgement that revoking Lampley's probation and imposing Lampley's previously suspended jail time would serve the ends of justice. This claim is meritless.
Although Judge Smith found it unnecessary to review some of the transcript excerpts that Lampley's attorney offered him at the sentencing hearing, Judge Smith did state that he had "read the transcript". And, based on a review of that sentencing hearing as a whole, it appears that Judge Smith had indeed reviewed the record, that he had read the parties' pleadings, and that he was familiar with the parties' positions. In short, the record gives every indication that Judge Smith understood and fulfilled his duty at the sentencing hearing.
Conclusion
The judgements of the superior and district courts are AFFIRMED.