Opinion
Court of Appeals No. A-11148 No. 6142
02-11-2015
GEORGE ROLAND MARK, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Callie Kim, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Thomas J. Aliberti, Assistant District Attorney, Bethel, 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. 4BE-11-1131 CR
MEMORANDUM OPINION
Appeal from the District Court, Fourth Judicial District, Bethel, Dennis P. Cummings, Judge. Appearances: Callie Kim, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Thomas J. Aliberti, Assistant District Attorney, Bethel, 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).
George Roland Mark was convicted of fourth-degree assault based on his girlfriend's testimony that he threw a coffee cup at her and then punched her. Mark appeals his conviction, arguing that the trial judge improperly prevented his attorney from introducing evidence of his girlfriend's potential motive to falsely accuse him of assault. We agree that the trial judge improperly limited Mark's defense, and we reverse his conviction.
Underlying facts
George Mark and Lillie Pleasant were in a romantic relationship for six years, and they had four children together. During their relationship, Pleasant lived with Mark and his family in the village of Quinhagak.
Mark and Pleasant broke up in the summer of 2011, and Mark asked Pleasant to move out of the house. Pleasant and the four children went to live with Pleasant's aunt and uncle, but Pleasant was unhappy with this arrangement because she and all four children had to stay in the living room, and because she felt that her aunt and uncle did not treat her like family.
A month or two later, Pleasant had a doctor's appointment in Bethel, and she arranged for Mark's sister, Geraldine Bigger, to watch the children while she was away from the village. When Pleasant arrived at the house with the children, Mark was there, and he asked Pleasant where she was going. Pleasant responded that she was going to Bethel for a doctor's appointment. According to Pleasant, Mark then threw a coffee cup at her but missed. Pleasant claimed that, when she tried to leave the house, Mark grabbed her and punched her in the forehead.
No one else observed this event, but four witnesses who saw Pleasant later (Pleasant's aunt, two police officers, and a local health aide) testified that Pleasant had a visible "knot" and some discoloration on the left side of her forehead.
(Geraldine Bigger was in the house at the time, but she testified that she was in her room, listening to music on headphones, when Pleasant came to the house, and she did not hear any disturbance.)
Based on Pleasant's account of this incident, Mark was charged with assault, and he was incarcerated pending his trial. While Mark was in jail, Pleasant and her four children moved back into Mark's family's house.
At Mark's trial, his defense attorney wanted to question Pleasant about the fact that she and the children moved back into the house while Mark was in jail. The defense attorney told the trial judge that this fact, coupled with the fact that Pleasant was unhappy living with her aunt and uncle, was evidence of Pleasant's potential motive to falsely accuse Mark of a crime (so that she and the children could resume living in the house).
But as soon as Pleasant confirmed that she had moved back into the house, the prosecutor interjected, "Objection, Your Honor", and the trial judge immediately declared, "Sustained", even though the prosecutor had offered no reason for his objection. The defense attorney started to explain that she believed Pleasant's return to the house was relevant to "motive", but the trial judge again declared, "Sustained", and then he added the comment, "Relevance".
At this point, the defense attorney asked the judge for permission to approach the bench (so that the discussion could continue outside the jury's hearing).
During this bench conference, the defense attorney explained more fully that she was seeking to lay the groundwork for a defense argument that Pleasant fabricated her story of assault so that Mark would be arrested and incarcerated, thus allowing her and the children to move back into the house.
Upon hearing this, the prosecutor declared that the defense attorney's proposed inquiry was "irrelevant" — and the trial judge agreed. The judge repeatedly expressed puzzlement as to how an event that occurred in October 2011 (i.e., Pleasant's moving back into the house) could be relevant to the allegation of criminal conduct that Pleasant made in September (i.e., when she told the police that Mark assaulted her). The judge told the defense attorney:
The Court: We're not [having a] trial for something that happened in October. We're here for something that happened in September.
Defense Attorney: Yes, Your Honor.
The Court: And that's the issue. ... September 21st — that's [when] the complaint says that he allegedly assaulted the victim. That's what we're here for. And [the prosecutor] is objecting because you're now wanting [Ms. Pleasant] to testify to something that happened in October — three or four weeks after this incident — and that somehow this jury needs to know that she moved back into the house[.]
. . .
And if you can tell me how what happened in October affected the events in September, [I invite you to] show me the relevance.
At this point, the defense attorney once more attempted to explain how Pleasant's act of moving into the house, after Mark was jailed on the assault charge, was relevant to Pleasant's potential motive to fabricate a false story that Mark had assaulted her. In response, the trial judge declared, "[The State's] objection is [lack of] relevancy, and I'm sustaining their objection ... . There can be no mention of anything that happened in October."
The defense attorney replied that Pleasant's answer was "already in evidence" — but that was not true. Before the bench conference began, in open court, the judge had already sustained the prosecutor's objection to Pleasant's answer. Thus, the answer was not in evidence. The jury was apprised of this legal reality when the judge expressly instructed them: "If I sustain an objection to a question after the answer has been made, you must then disregard the question and the answer."
In an effort to convince the trial judge that there was additional evidence to support the defense theory of false accusation, the defense attorney made an offer of proof that Pleasant's aunt Alice would testify that Pleasant made a statement to the effect that "once she [i.e., Pleasant] ... made this report and [Mark was] gone, [then] she was going to move back in the house." The trial judge responded:
The Court: All right. I sustained the objection ...
Prosecutor: Thank you, Your Honor.
The Court: ... as to any questions about October. Thank you.
Defense Attorney: I'm confused: No more, further ...
The Court: You're done.
Why the trial judge's ruling requires reversal of Mark's conviction
Mark's attorney wished to introduce evidence indicating that Pleasant had a motive to falsely accuse Mark of a crime — so that Mark would be removed from the house, thus allowing Pleasant to resume living there.
Part of this evidence was the fact that Pleasant did, in fact, move back into the house a few weeks after the alleged assault, after Mark was incarcerated pending his trial. Another part of this evidence (according to the defense attorney's offer of proof) would have been Pleasant's aunt's testimony that Pleasant announced her plan to move back into the house after she made her report of assault and Mark "was gone".
The trial judge's reasons for excluding this evidence are difficult to understand. The judge seemed unable to grasp that Pleasant's conduct after the event in question might be probative of Pleasant's state of mind at the time of that event.
Mark's proposed defense — his theory that Pleasant had invented a story of assault so that Mark would be removed from the house, and so that Pleasant and the children could resume living there — was based on inferences that could rationally be drawn from the evidence that Mark's attorney offered to introduce.
The trial judge may have thought that this proposed defense was unlikely or even implausible, but this did not authorize the judge to preclude Mark's attorney from presenting the defense. Rather, the judge was required to let Mark's attorney present this evidence — and then to let the jury decide whether this evidence, and the reasonable inferences that might be drawn from it, were sufficient to raise a reasonable doubt as to Mark's guilt.
See Greenwood v. State, 237 P.3d 1018, 1022 (Alaska 2010) (as long as a defendant produces evidence that rationally supports a defense, "any weakness or implausibility in that evidence is irrelevant" and the resolution of the defendant's claim is "a matter for the jury, not for the court.").
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The State argues that the trial judge's error was harmless beyond a reasonable doubt. The State relies on the fact that several witnesses testified about the presence of the bump and the discoloration on Pleasant's forehead. The State also introduced evidence of a prior episode where Mark assaulted Pleasant. Finally, the State asserts that Mark's attorney was able to argue the fabrication theory to the jury, despite the trial judge's ruling. But the record does not support the State's last assertion.
The State relies on the following portion of the defense attorney's summation:
Defense Attorney: [I am not] standing up here and saying [that] Ms. Pleasant's a liar or anything like that. No one is perfect. People do things for different reasons. We found out in this case that she was upset. She wanted to move back into the house. She got him in trouble, and that's what she did [i.e., move into the house].But this is not the defense that Mark's attorney wished to present.
Mark's attorney wished to affirmatively argue that Pleasant was a liar — that she invented a story of assault so that Mark would be removed from the house, and so that she and the children could move back in. And if the trial judge had allowed the defense attorney to cross-examine Pleasant and to present the offered testimony of Pleasant's aunt Alice, there presumably would have been evidence to support the defense attorney's fabrication argument.
But instead, the defense attorney was forced to tell the jurors that she was not accusing Pleasant of being a liar, leaving the defense attorney with the weaker suggestion that Pleasant's description of events might have been unconsciously exaggerated, or skewed toward her own self-interest, because she was upset and she wanted to move back into the house.
We therefore reject the State's contention that the trial judge's error was harmless.
Conclusion
The judgement of the district court is REVERSED.