Opinion
Court of Appeals No. A-9084.
January 31, 2007.
Appeal from the Superior Court, First Judicial District, Sitka, Larry Weeks, Judge, Trial Court No. 1SI-04-0338.
Dan Bair, Assistant Public Advocate, and Chad W. Holt, Office of Public Advocacy, Anchorage, for the Appellant. Timothy W. Terrell, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
MEMORANDUM OPINION AND JUDGMENT
Denni Starr fatally stabbed her domestic partner of eight years, Richard "Buddy" George Jr. in the back. A jury convicted Starr of murder in the second degree, an unclassified felony with a maximum sentence of 99 years of imprisonment. Starr was also convicted of reckless endangerment, a class A misdemeanor, for endangering her infant daughter during the assault on George. On appeal, Starr contends that Superior Court Judge Larry Weeks erred in excluding evidence of a key witness's prior mental health condition, erred in denying her motion for a continuance to allow her to explore whether her own mental state had been affected because she may have received a concussion immediately prior to stabbing George, and erred in denying her motion for a new trial which was based upon evidence that she may have received a concussion. We conclude that Judge Weeks did not abuse his discretion in denying Starr's motions. We accordingly affirm Starr's convictions.
AS 11.41.110(a)(1) and (a)(2).
AS 11.41.250.
Factual and procedural background
Denni Starr and Richard "Buddy" George Jr. shared an apartment in Angoon. The couple had two children, six-year-old Kendra George and eighteen-month-old Starr George. The couple had a long history of mutual physical abuse.
On July 26, 2003, George was in the apartment with Starr George and his cousin, John Merculief, when Starr and Kendra George returned home in the early evening. Starr had been drinking with friends, and the couple began to argue. Merculief told George that he was leaving and went toward the door. George, upset that Starr had been drinking, said he was leaving as well and taking the children to his mother's house.
Starr and George continued to argue while George was putting on his slippers near the door. George held Starr George while he tried to get out of the apartment. Starr attempted to block the door. George used his foot to push Starr out of the way which caused Starr to fall.
Starr then stood up, ran into the kitchen, and retrieved a nine-inch knife from a drawer. Upon seeing Starr coming towards him with the knife, George said "don't even think about it" and turned away in an apparent effort to shield Starr George. Starr then stabbed George in the back left shoulder. The blade punctured George's lung, and George died quickly as a result of rapid blood loss and choking on his own blood.
Starr was indicted for two counts of second-degree murder. The first count charged that Starr stabbed George intending to cause serious physical injury or knowing that her conduct was certain to cause serious physical injury. The second count charged that Starr had knowingly acted with extreme indifference to the value of human life because she attacked George while George was holding Starr George. Starr was also charged with reckless endangerment for recklessly engaging in conduct that created a substantial risk of serious physical injury to Starr George. At trial, Starr's theory of the case was that the stabbing was an accident. Starr claimed that she got the knife to defend herself and that she accidently stabbed George during the altercation.
AS 11.41.110(a)(1).
AS 11.41.110(a)(2).
AS 11.41.250.
A jury convicted Starr on all three counts after a five-day jury trial before Judge Weeks in Sitka. Judge Weeks sentenced Starr to 30 years to serve for the second-degree murder convictions (45 years with 15 years suspended) and one year to serve for the reckless endangerment conviction, for a total sentence of 31 years.
Why we conclude that Judge Weeks did not abuse his discretion in refusing to admit evidence of a key witness's prior mental health issues
John Merculief, George's cousin, was playing video games with George just before the stabbing. Merculief was the only adult eyewitness to the stabbing and the lead witness for the prosecution.
At trial, Merculief's testimony was essential to the prosecution on two points: (1) that George was holding Starr George when he was stabbed; and (2) that Starr stabbed George immediately upon returning with the knife, not while they were struggling over the knife. Merculief testified that George was holding his infant daughter when Starr and George struggled in the hallway. Merculief recounted how the couple began to fight and push each other. Eventually George pushed Starr to the ground with his foot. Merculief testified that Starr then ran to the kitchen to get a knife and stabbed George in the back, while George was still holding their daughter.
The defense sought to impeach Merculief's testimony by attacking his ability to perceive and relate those events. Starr sought to introduce, through other witnesses, evidence of statements made by Merculief in early 2002, about fourteen months before the stabbing. These statements included claims by Merculief that he was closely involved with former Governor Tony Knowles' family, that he was developing top-secret weapons, that he was on "missions" for the government, and that he was authorized to kill people.
Judge Weeks first considered this issue at a pretrial conference on the opening day of trial. Starr made an offer of proof that two witnesses, Denise Jack and Dan Willis, could testify to Merculief's prior statements. Starr represented that Willis could also testify about a court proceeding involving Merculief that was probably a mental commitment proceeding. Judge Weeks stated that Starr had to show a connection between Merculief's statements and his ability to observe the assault and to later testify accurately about it. Judge Weeks precluded Starr from addressing Merculief's possible m ental health issues during opening statements, but allowed Starr to ask Merculief, during cross-examination, if he made the statements. However, Judge Weeks stated that before Starr could call independent witnesses as to the statements, Starr would have to show that the statements were relevant to Merculief's credibility as a witness.
Following the prosecution's direct examination of Merculief, Judge Weeks conducted a voir dire of Merculief outside the presence of the jury. Judge Weeks indicated that he had just received records from Bartlett Hospital and the Melnich Clinic about Merculief's hospitalization in May of 2002. Judge Weeks told Merculief that the records showed that Merculief had been hospitalized in May of 2002, a little more than a year before the stabbing incident. He asked Merculief if, at the time of the stabbing incident, he was having any kind of a problem with mental illness. Merculief answered, "No." Judge Weeks asked Merculief if he had been hospitalized other than in May of 2002. Merculief again answered, "No." Judge Weeks then called a recess to allow the parties to review Merculief's medical records. Following the short recess, Judge Weeks heard argument on whether Starr should be allowed to question Merculief about the statements he made that led to his hospitalization and to question him about the hospitalization. Starr argued that Merculief's statements and his hospitalization were relevant to allowing the jury to evaluate Merculief's credibility. The State objected, arguing that admitting Merculief's statements from more than a year before the incident and admitting the medical records would not be relevant evidence without the testimony of a physician or expert who could show that Merculief's apparent "condition" at the time of his hospitalization could have interfered with Merculief's ability to accurately perceive the altercation between Starr and George that ended in George's death. Judge Weeks then recalled Merculief to the stand and asked him whether he was on any kind of medication. Merculief responded, "No." Judge Weeks denied admission of the statements and medical records. He concluded that Merculief's statements and medical records were of questionable relevance for determining his credibility as a witness and that the probative value of the evidence was therefore outweighed by the danger of unfair prejudice.
A.R.E. 403.
On appeal, Starr contends that Judge Weeks' ruling violated her constitutional right to confront the witnesses against her by limiting her cross-examination of Merculief. It is true that a defendant has a fundamental constitutional right to cross-examine witnesses to establish bias, prejudice, or motive. But a judge who properly applies the rules of evidence does not violate a defendant's right to confront witnesses and to present evidence. A trial judge has "broad discretion to restrict the admission of relevant evidence if its probative value is outweighed by unfair prejudice or confusion of the issues."
Johnson v. State, 889 P.2d 1076, 1080 (Alaska App. 1995) (citing Davis v. Alaska, 415 U.S. 308, 316-18, 94 S. Ct. 1105, 1110-11, 39 L. Ed. 2d 347 (1974)).
See Ragsdale v. State, 23 P.3d 653, 663 (Alaska App. 2001); Johnson, 889 P.2d at 1081; Zeciri v. State, 779 P.2d 795, 797 (Alaska App. 1989); Larson v. State, 656 P.2d 571, 575 (Alaska App. 1982).
Johnson, 889 P.2d at 1081 (citing Brown v. State, 779 P.2d 801, 803-04 (Alaska 9 App. 1989)).
Starr sought to use the evidence of Merculief's statements and the records of his mental health hospitalization to undermine Merculief's credibility as a witness. But Judge Weeks could properly focus on Merculief's mental health at the time that the stabbing incident occurred and at the time that Merculief testified before the jury. Judge Weeks pointed out that Merculief had made the statements and had been hospitalized for a mental health examination fourteen months before the stabbing incident. He ruled that, for the evidence to be admissible, Starr had to show that the statements and the hospitalization were relevant. Judge Weeks could properly require that Starr establish relevancy, either through an expert witness or possibly through character witnesses who could testify that Merculief was not a credible witness. Starr never offered any credible evidence of a connection between Merculief's statements and hospitalization and his ability to observe the stabbing incident or his ability to testify about it at trial. Accordingly, Judge Weeks did not abuse his discretion in excluding Starr's proposed evidence.
A.R.E. 104(b).
On appeal, Starr raises another argument that she never presented to Judge Weeks. Starr alleges that, because George's father was a leader in the community and active in the 2002 process to have Merculief examined for mental illness, Merculief was afraid to testify against the George family because of his fear the family might retaliate by supporting a future mental health commitment.
Starr never brought the concern of bias to the attention of Judge Weeks; the issue is first raised in Starr's opening brief to this Court. Starr's argument at trial, and therefore Judge Weeks' ruling, focused solely on Merculief's ability to perceive and relate. Because Starr never brought this argument to Judge Weeks' attention, she did not preserve this new allegation of bias for appeal. We conclude that Judge Weeks did not abuse his discretion in refusing to allow Starr to admit evidence of Merculief's statements and his prior hospitalization for a mental health evaluation.
See Jones v. State, 576 P.2d 997, 1000-01 (Alaska 1978).
Why we conclude that Judge Weeks did not err in denying Starr's motion for a continuance
On the next to last day of Starr's trial, Starr's attorney represented that he had just found out that after Starr was jailed for George's murder, she had been experiencing headaches and blackouts and had apparently been diagnosed with a concussion. The attorney represented that after Starr was released from jail, she blacked out in the middle of the night and her mother, Delores Starr, had to take her to the emergency room for treatment. The attorney stated that he thought the evidence of the concussion was important to support Starr's heat of passion defense because she may have received the concussion prior to stabbing George. The attorney represented that he w ould call Starr's mother to testify that while Denni Starr was in jail she kept complaining of headaches and that she was diagnosed with a concussion. The State objected to this testimony on the ground that it was meaningless without presenting expert testimony to show that the evidence was relevant. Judge Weeks sustained the State's objection to the testimony.
This issue arose again on the final day of trial. Starr's attorney represented that he obtained medical records from the jail which indicated that shortly after the stabbing incident Starr had been diagnosed with a concussion. The attorney stated that Starr had told a former attorney about the possible concussion but that this information had not been passed on to him. Starr's attorney represented that he had talked to his own father, who was a board-certified radiologist. After talking with his father, he concluded that the concussion evidence could explain Starr's mental state at the time of the crime. The attorney stated that he needed a new trial in order to properly present this evidence as part of his defense. But, in the alternative, he asked Judge Weeks to grant a continuance of several days. The attorney stated that he was attempting to locate the person who had diagnosed Starr in the jail but that he and his staff were having a difficult time reading the person's name. He stated that a continuance would be a poor remedy but that it would be better than nothing. He asked to be allowed to introduce copies of the medical records to show that Starr had received a concussion. Starr's attorney theorized that Starr received the concussion when George kicked her into the wall, just before she ran to get the knife. The State opposed the continuance. The prosecutor countered that Starr could have inflicted the concussion herself: witnesses in Angoon had observed her pounding her head on a concrete floor after the stabbing.
Judge Weeks denied the motion for a new trial and the motion for a continuance. He stated that if the attorney established an evidentiary basis for admitting the medical records, he would allow the medical records into evidence. The attorney represented that he would call his investigator to testify that he received the medical records from the jail. Judge Weeks indicated that he saw little point in calling the investigator to provide a foundation to admit the medical records. The prosecutor also responded that he wanted to call several witnesses to establish that, after the stabbing incident, Starr had beaten her head on a concrete floor. At this point, Starr's counsel renewed his request for a new trial or a continuance but withdrew his request to introduce the medical records. Judge Weeks denied the motion for a new trial or a continuance.
Discussion
On appeal, Starr argues that Judge Weeks erred in refusing to grant her motion for a continuance. In deciding whether to grant a continuance, a court should consider:
(1) whether the testimony is material to the case; (2) whether the testimony can be elicited from another source; (3) whether the testimony is cumulative; (4) probability of securing the absent witness in a reasonable time; (5) whether the requesting party was diligent and acting in good faith; (6) the inconvenience to the court and/or others; and (7) the likelihood that the testimony would have affected the jury's verdict.
Salazar v. State, 559 P.2d 66, 72 (Alaska 1976) (footnote omitted); see also State v. Briggs, Alaska App. M emorandum Opinion and Judgment No. 3744 (Jan. 14, 1998), 1998 WL 10264 at *2 (organizing the Salazar factors as follows: (1) the importance of the proposed testimony; consisting of (a) materiality of testimony; (b) the cumulative nature of the testimony or alternative sources; (c) the likelihood the testimony could im pact the verdict; (2) the diligence and good faith of the requesting party; (3) expectation that the witness can be secured in a reasonable time; (4) the inconvenience to the court, other parties, and other interested people).
We are to reverse the trial court's decision denying a motion for a continuance only if we find an abuse of discretion. We conclude that Judge Weeks did not abuse his discretion in denying Starr's motion for a continuance. Our review of the record shows that all Starr presented was that she had an investigative lead: there was a possibility that she might be able to establish that she received a concussion shortly before she stabbed George and might be able to establish that the concussion affected her mental state at the time she stabbed George or affected her conduct and statements after the incident. But Starr presented her motion for the first time on the day before the case was going to be presented to the jury. Based upon Starr's offer of proof, Judge Weeks could properly conclude that it was highly speculative whether Starr would be able to present evidence which was admissible or evidence which would materially aid Starr in presenting her defense. In his offer of proof, Starr's attorney essentially conceded that his investigation of the concussion evidence was merely in an investigative stage. He stated to the court that, because of this, a continuance was really not an adequate remedy. He actually needed the court to grant a new trial. Under these circumstances, Judge Weeks could properly deny the motion for a continuance.
Best v. Anchorage, 712 P.2d 892, 894-95 (Alaska App. 1985).
Why we uphold Judge Weeks' ruling denying Starr's motion for a new trial
After her conviction, Starr made multiple motions to obtain a new trial under Alaska Criminal Rule 33. Starr's motion was based upon her contention that the evidence that she received a concussion was of critical importance. Starr provided the court with three affidavits. Starr's affidavit stated that she did not tell her trial attorney of the head injury until late in her trial. The affidavit of the defense investigator affirmed this and discussed his discovery of the medical records. Finally, Dr. James May, a licensed psychologist specializing in neuropsychology, stated that people with concussions can exhibit strange or unusual behavior and diminished impulse control. Dr. May said that he had reviewed Starr's medical records and the evidence from the trial. He stated that Starr may have received a concussion and that it may have impacted her behavior. He conceded that he had not conducted an MRI exam and could not definitively diagnosis a concussion. But he concluded that Starr's behavior and actions during and after the incident where she stabbed George was consistent with the behavior of someone who had recently received a concussion.
Judge Weeks denied the motion. Judge Weeks noted that Starr had not presented any evidence that she had received the concussion before she stabbed George rather than afterward. He concluded that it was not in the interest of justice to overturn the jury's verdict.
Alaska Criminal Rule 33(a) authorizes a trial judge to grant a new trial "if required in the interest of justice." A new trial should be granted to prevent a manifest injustice. We are to reverse the denial of a motion for a new trial only if the trial judge abuses his discretion. W e conclude that Judge Weeks did not abuse his discretion in denying Starr's motion for a new trial. Starr never established who diagnosed the concussion at the jail or what the evidence was for the diagnosis. Furthermore, Starr never established whether the concussion actually occurred, or, if it occurred, whether it occurred before she stabbed George. Judge Weeks could properly determine that the imprecise affidavit which Starr obtained from Dr. May was insufficient to demonstrate that her conviction constituted a manifest injustice or that the additional evidence would "probably produce an acquittal." We accordingly affirm Judge Weeks' ruling denying Starr's new trial motion.
State v. Walker, 887 P.2d 971, 977 (Alaska App. 1994).
Pease v. State, 54 P.3d 316, 331 (Alaska App. 2002) (citing N ew v. State, 714 P.2d 378, 381-82 (Alaska App. 1986)).
Charles v. State, 780 P.2d 377, 383 (Alaska App. 1989) (citing Salinas v. State, 373 P.2d 512, 514 (Alaska 1962)).
Conclusion
The judgment of the superior court is AFFIRMED. 16 Charles v. State, 780 P.2d 377, 383 (Alaska App. 1989) (citing Salinas v. State, 373 P.2d 512, 514 (Alaska 1962)).
I write separately to clarify our analysis of Starr's claim that she should have been allowed to present evidence that John Merculief had suffered a psychotic episode of undetermined origin some fourteen months before the events at issue in this case.
When the issue of Merculief's earlier mental health problems arose, Judge Weeks held a hearing in which he asked Merculief if he still suffered from mental illness, or if he had been hospitalized since that time, or if he was taking medication. Merculief answered "no" to each of these questions, and Starr presented no contrary evidence.
Based on this record, Judge Weeks could reasonably conclude that, whatever mental health problems Merculief suffered in May 2002, these problems had no relevance to Merculief's ability to accurately perceive the events being litigated (events that occurred in July 2003), nor any relevance to Merculief's ability to accurately relate those events when he testified at Starr's trial (which was held in September 2004).