Opinion
Court of Appeals No. A-11364 No. 6322
05-04-2016
GARY J. LoRUSSO, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Cynthia L. Strout, Anchorage, for the Appellant. Mary A. Gilson, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
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 authority for any proposition of law. Trial Court No. 3PA-11-1363 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Palmer, Gregory Heath, Judge. Appearances: Cynthia L. Strout, Anchorage, for the Appellant. Mary A. Gilson, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. Judge MANNHEIMER.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Gary J. LoRusso was convicted of third-degree sexual abuse of a minor for having sexual intercourse with a 16-year-old girl, D.J., while she was babysitting LoRusso's young son. D.J. worked as the receptionist at the real estate agency where LoRusso also worked, so LoRusso was charged under the "position of authority" provision of the third-degree sexual abuse statute.
Former AS 11.41.438(a)(2) (2002 version).
On appeal, LoRusso contends that evidentiary errors occurred at his trial, and that these errors require reversal of his conviction. As we explain in this opinion, LoRusso's trial attorney introduced some of the evidence that LoRusso now objects to, so LoRusso is estopped from claiming error with regard to that evidence.
With respect to the other alleged evidentiary errors, LoRusso's trial attorney either did not object to the evidence that LoRusso challenges on appeal, or objected on a different basis from the objection raised on appeal. Thus, LoRusso must show that the trial judge committed plain error by failing to reject the evidence sua sponte. For the reasons explained in this opinion, we conclude that LoRusso has failed to show plain error.
We therefore affirm LoRusso's conviction.
A brief description of LoRusso's case
LoRusso did not deny having sex with D.J. LoRusso's defense was that D.J. had already attained the age of 18 when the sexual intercourse occurred.
According to the State's evidence, the act of sexual intercourse occurred in May 2002. But at trial, LoRusso's attorney argued that the sexual encounter occurred about a year and a half later. The defense attorney pointed out that when D.J. described the act of intercourse, D.J. said that she thought it happened after the realty company moved into new offices. This move did not take place until the fall of 2003.
D.J. did not tell anyone about her sexual encounter with LoRusso until several years after it occurred — in late 2009. When D.J. revealed what had happened, the police began an investigation. As part of that investigation, the police obtained Glass warrants to monitor and record a face-to-face conversation between LoRusso and D.J.'s mother, and a separate conversation between LoRusso and D.J. herself.
See State v. Glass, 583 P.2d 872 (Alaska 1978) (holding that, under the Alaska Constitution, the police must obtain a warrant before electronically monitoring or recording a private conversation, even when one or more participants to the conversation consent to the police surveillance).
LoRusso's challenge to one portion of D.J.'s testimony
D.J. was the government's first witness at trial. She testified that in May 2002 she agreed to babysit for LoRusso's young son while LoRusso's wife was out of town and LoRusso had to work in the evening. According to D.J., LoRusso returned home around 11:30. LoRusso put his son to bed, and then he made an alcoholic drink for D.J. After D.J. had the drink, LoRusso made sexual overtures to her. He kissed her and then pulled down her pants. After LoRusso removed his own clothes, he engaged in intercourse with D.J.
D.J. then described meeting and speaking to LoRusso in September 2010 (the conversation that was recorded under the authority of the Glass warrant).
D.J. testified that, during this conversation, she accused LoRusso of forcibly having sex with her, and of taking advantage of her when she was only 16 years old. According to D.J., LoRusso did not deny either of these accusations; instead, he responded only with silence or with apologies. The prosecutor then asked D.J. to describe LoRusso's apologies:
Prosecutor: And did he acknowledge that he understood that you were ... hurt?
D.J.: That I was very hurt, and that it wasn't okay. He fully acknowledged that, and said that he understood that.
Prosecutor: Okay. Did he also mention hurting other people besides you guys? Like other people had been hurt by him?
D.J.: Yes, he did. He said he had hurt multiple people, and that every year he thinks about that and thinks about the people he's hurt.
LoRusso's attorney did not object to this testimony. However, LoRusso now claims that the second question and answer quoted above constituted inadmissible evidence of "other crimes". More specifically, LoRusso contends that when the jurors heard that LoRusso apologized for "hurt[ing] multiple people", the jurors must have inferred that LoRusso was confessing to sexually abusing other girls besides D.J.
Because there was no objection to this testimony, LoRusso must show plain error. That is, LoRusso must show that the error was obvious, that it affected his substantial rights, and that it was prejudicial. Here, it was not obvious, or even likely, that the challenged testimony would lead the jurors to think that LoRusso had sexually abused other girls.
Adams v. State, 261 P.3d 758, 764 (Alaska 2011).
In her testimony, D.J. did not assert or even suggest that LoRusso had engaged in sexwith other girls. However, the jurors were aware (from D.J.'s testimony) that LoRusso was married and that he had a 5-year-old son. Thus, when D.J. described how LoRusso told her that he felt bad about hurting other people, the jurors might plausibly have understood this to be a reference to LoRusso's wife and child. Indeed, when LoRusso testified at his trial, he acknowledged that he felt bad about cheating on his wife.
Because D.J.'s challenged testimony contained no obvious assertion that LoRusso had engaged in other crimes, it was not plain error for the judge to admit this testimony in the absence of any objection.
As we explain in the next section of this opinion, after D.J. completed her testimony, D.J.'s mother took the stand and did give testimony suggesting that LoRusso had abused other girls. But this testimony was elicited by LoRusso's attorney.
LoRusso's challenge to one portion of D.J.'s mother's testimony
After D.J. concluded her testimony, D.J.'s mother took the stand. During the prosecutor's direct examination, he asked D.J.'s mother to describe the monitored conversation that she had with LoRusso.
D.J.'s mother testified that, during this conversation, she accused LoRusso of having sex with her daughter. LoRusso never directly admitted to having sex with D.J., but he never denied the accusation either. D.J.'s mother stated that the closest LoRusso came to making a denial was when he told her that D.J. was not telling "the whole truth".
LoRusso does not challenge any of the testimony that D.J.'s mother gave on direct examination. Rather, LoRusso challenges a portion of the testimony that D.J.'s mother gave on cross-examination — testimony elicited by LoRusso's own attorney.
At the start of this cross-examination, LoRusso's attorney asked D.J.'s mother if, during her conversation with LoRusso, she remembered LoRusso saying "Holy cow, no! No, none of that is true!", or if she remembered LoRusso saying, "I don't see how [D.J.] gets off saying all this stuff that's not true!"
D.J.'s mother testified that she did not remember LoRusso saying these things. Upon hearing this answer, LoRusso's attorney approached the bench, and an untranscribed bench conference ensued. At the end of this bench conference, the trial judge announced to the jurors that they were about to hear the recording of the conversation between D.J.'s mother and LoRusso.
Although the sound quality of the recording was not good (LoRusso's side of the conversation was particularly difficult to hear), the defense attorney played the whole recording, and he then again asked D.J.'s mother if LoRusso had denied her accusations. D.J.'s mother repeated her earlier testimony that LoRusso never directly denied the accusations, although he did declare that D.J. "didn't tell the whole truth."
Having received these answers, LoRusso's attorney continued to pursue this line of inquiry. He started playing shorter snippets of the recording, and he again asked D.J.'s mother if, in these excerpts, LoRusso directly denied her accusations.
After the defense attorney played the first snippet, D.J.'s mother testified that it sounded like LoRusso was saying that D.J. was not telling the whole truth. LoRusso's attorney then played a second snippet. After playing this second snippet, the defense attorney posed the following question to D.J.'s mother:
Defense Attorney: Now you hear that pretty clear: "Holy cow! None of that's true." Did you just hear that [on the recording]?
D.J.'s Mother: Oh, yeah. He denied that he had sex with other young girls, but — that's what my daughter had expressed to me. So that's how that came out. I didn't expect him to sit there and say, "Yes, I did all these things."
Having elicited this testimony from D.J.'s mother, LoRusso's attorney did not object to her answer, nor did he ask the judge to strike the answer, nor did he ask the judge to caution the jury. The defense attorney simply moved on to a different subject. (He began questioning D.J.'s mother about whether she had financial motives for bringing charges against LoRusso.)
Now, on appeal, LoRusso argues that it was plain error for the trial judge to allow this evidence to be heard by the jurors. But as we have just explained, it was LoRusso's attorney who demanded that the recording be played for the jury, who flagged this particular portion of the conversation, who repeatedly questioned D.J.'s mother about it, and who did not seek any remedy from the trial judge when D.J.'s mother gave her answer — an answer that was responsive to the defense attorney's questions. This being so, LoRusso invited this purported error. Any prejudice he suffered was entirely the result of his attorney's own actions.
See Johnson v. State, 328 P.3d 77, 86 (Alaska2014); Roderer v.Dash,233 P.3d1101, 1113-14 (Alaska 2010); Johnson v. State, 224 P.3d 105, 108 n. 11 (Alaska 2010); Parson v. Alaska Housing Finance Corp., 189 P.3d 1032, 1038 (Alaska 2008).
In his reply brief, LoRusso argues that his trial attorney was incompetent for eliciting this information from D.J.'s mother — and that the trial judge should have recognized the defense attorney's incompetence and should have taken remedial measures sua sponte. We reject this argument. Under Alaska law, if LoRusso wishes to argue that his trial attorney was incompetent, he must pursue that claim in a petition for post-conviction relief.
See Sharp v. State, 837 P.2d 718, 722 (Alaska App. 1992); Barry v. State, 675 P.2d 1292, 1295-96 (Alaska App. 1984).
LoRusso's argument that the recordings of the two conversations were of such poor quality that they should not have been admitted
LoRusso's final argument on appeal is that the recordings of the two conversations (between LoRusso and D.J.'s mother, and between LoRusso and D.J. herself) were of such poor quality that the trial judge should have excluded them as unfairly prejudicial.
More particularly, LoRusso argues that his side of the two conversations was so indiscernible that the jurors might easily have misunderstood his responses, or might have mistakenly interpreted his statements against him. But under Alaska law, the fact that a recording contains inaudible portions does not render the recording inadmissible unless the inaudible portions are so substantial as to render the recording untrustworthy.
See Quick v. State, 599 P.2d 712, 721 (Alaska 1979). --------
Here, although LoRusso's statements on the recordings may have been difficult to hear, they were not impossible to hear — as illustrated by the cross-examination of D.J.'s mother that we described in the preceding section of this opinion.
Moreover, when LoRusso's attorney demanded to play the entire recording of the conversation between LoRusso and D.J.'s mother, the trial judge interrupted the playback (shortly after it began) to advise the jurors that portions of the recording were difficult to understand, and to warn the jurors that they were "not to speculate" about the content of any statements that were not clearly audible. Given the significant portions of the recordings that were audible, this was a reasonable approach to the problem.
For these reasons, we reject LoRusso's contention that the trial judge should have excluded the recordings because of their poor sound quality.
Conclusion
The judgement of the superior court is AFFIRMED.