Opinion
Court of Appeals No. A-11107 Trial Court No. 3PA-11-614 CR No. 6062
06-25-2014
ERIC B. STOLTZE, Appellant, v. STATE OF ALASKA, Appellee.
Callie Patton Kim, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Kenneth M. Rosenstein, 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.
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Palmer, Gregory Heath, Judge.
Appearances: Callie Patton Kim, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Kenneth M. Rosenstein, 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.
Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution and Administrative Rule 24(d).
Judge ALLARD.
Eric B. Stoltze was convicted of third-degree assault for assaulting his wife, Lauren Hunnings. On the night of the assault, Hunnings told the 911 operator and the state troopers that Stoltze put her in a choke hold and threatened her with a gun. She later repeated these statements to the grand jury. But at Stoltze's trial, Hunnings recanted the allegations, claiming she had been the aggressor and that Stoltze had only injured her while trying to protect himself.
AS 11.41.220(a)(1)(A).
The State urged the jury to credit Hunnings's pretrial allegations and to disbelieve her trial testimony, which came after Hunnings and Stoltze had reconciled. Stoltze, for his part, sought to undermine Hunnings's credibility by eliciting testimony about her mental health issues and medications.
At trial, the superior court allowed Hunnings to testify that she had a mental health condition and that she had stopped taking her medications prior to the night of the assault. The court also permitted Hunnings to testify regarding how she generally reacted when she stopped her medications and, more specifically, how her behavior and mental state were affected that night. However, the superior court did not allow Hunnings to testify that she had been specifically diagnosed with "bipolar disorder." The court reasoned that, without expert testimony explaining and verifying the diagnosis, use of the term "bipolar disorder" could confuse the jury and unfairly prejudice the State.
On appeal, Stoltze challenges the superior court's decision to exclude Hunnings's testimony about her specific diagnosis. For the reasons explained below, we conclude that the trial court's ruling was not an abuse of discretion.
Stoltze also argues, for the first time on appeal, that remarks the prosecutor made in closing argument deprived him of a fair trial. Although we agree that some of the prosecutor's comments were improper, we do not view the remarks as rising to the level of plain error requiring reversal. We therefore affirm Stoltze's convictions.
Facts and proceedings
On March 12, 2011, after an evening of drinking at two different bars, Stoltze drove home with Hunnings and the couple became involved in an altercation that turned violent. Hunnings eventually went to a neighbor's apartment "upset and crying," and, over Stoltze's objection, the neighbor called 911.
Hunnings told the 911 operator that Stoltze hit her, held a gun to her head, kicked in the door to the bathroom while she was inside, and initially would not let her leave the apartment. When the troopers arrived, they observed that Hunnings's face was swollen and flushed and that there were red marks on her neck consistent with strangulation. Hunnings told the troopers that Stoltze at one point put her in a choke hold. A few days later, Hunnings repeated these allegations to the grand jury.
Stoltze was charged with multiple crimes: two counts of third-degree assault (one count for choking Hunnings and one count for threatening her with a gun), fourth-degree assault, tampering with evidence, fourth-degree weapons misconduct, fourth-degree criminal mischief, interfering with a report of domestic violence, and driving under the influence.
At trial, during jury voir dire, the State became aware that Stoltze intended to attack the credibility of Hunnings's pretrial accusations by eliciting her testimony that she had been diagnosed with bipolar disorder. The State filed a motion to exclude this testimony as irrelevant. In response, Stoltze argued that Hunnings's testimony was relevant to her credibility and to "how accurately she could perceive the events of that night."
Superior Court Judge Gregory Heath granted the State's motion in part. The judge ruled that Hunnings could not testify that she had been diagnosed with bipolar disorder, reasoning that, in the absence of expert testimony explaining the diagnosis, her testimony would "open[] the door for a ton of speculation" by the jury. The court also concluded that the State would be prejudiced if testimony on her diagnosis was introduced without corroboration, because the State would have no way to rebut the testimony. However, the trial court allowed Hunnings to testify about her mental condition on the night of the assault, and about how she reacted in general when she stopped her medications.
Hunnings testified that she had been prescribed a number of medications, including Depakote and Zoloft, as well as opiates for pain, but that she had stopped taking them about two weeks prior to the March 12 incident, without consulting her doctor. She said when she was off her medications she went "from happy to sad and happy to angry very quickly" and "just any little thing [could] set me off." She said on March 12, she and Stoltze got into a fight because she was not taking her medications and was "angrier than almighty hell" that he refused to have sex with her. She said Stoltze caused the marks on her neck when he tried to get her to stop biting him. She denied that Stoltze put a gun to her head, testifying that he emptied the gun of bullets and threw it into a bedroom to keep it away from her. She said she only tried to keep Stoltze out of the neighbor's apartment to prevent herself from hitting Stoltze.
Hunnings admitted that she made "calculated misstatements" to the 911 operator when she said Stoltze had assaulted her, because she was in "vindictive witch mode" and wanted to get Stoltze in trouble. She said she later lied to the grand jury because she was still angry at Stoltze. Hunnings said she had resumed her medications before appearing as a witness at Stoltze's trial.
Despite the court's protective order, Hunnings also stated at one point during her testimony that she had been diagnosed as "severely bipolar." The trial judge instructed the jury to disregard the term "bipolar," stating, "[t]here will be no expert testimony regarding that term in this case, and therefore, what it means in a medical sense is not to be speculated upon."
The jury convicted Stoltze of third-degree assault based on the evidence that he placed Hunnings in a choke hold. Stoltze was also convicted of driving under the influence. Stoltze appeals his assault conviction.
AS 28.35.030(a).
Why we conclude that the superior court did not abuse its discretion by excluding Hunnings's testimony that she had been diagnosed with bipolar disorder
Stoltze argues that the trial court abused its discretion by preventing Hunnings from testifying that she had been diagnosed with bipolar disorder. He argues that this ruling infringed his fundamental right to present a defense.
Expert testimony is not invariably required to admit evidence that a witness suffers from a mental illness. A lay person may testify about a witness's medical condition, including a mental health condition, if ordinary jurors would be capable of understanding the relationship between the condition and the proposition for which the evidence is offered.
This issue has been addressed in several of our unpublished decisions: Leavitt v. State, 2008 WL 110483, at *4-6 (Alaska App. Jan. 9, 2008) (Mannheimer, J., concurring); Starr v. State, 2007 WL 293072, at *2-3 (Alaska App. Jan. 31, 2007); see also Jackson v. State, 890 P.2d 587, 589-90 (Alaska App. 1995) (expert testimony not required to prove a victim's mental incapacity in a second-degree sexual assault prosecution).
See generally 31A Am. Jur. 2d Expert and Opinion Evidence § 116 (2014) (lay witness permitted to give opinion testimony as to mental condition if based upon the witness's perception).
Even so, a trial court has discretion under Evidence Rule 403 to require corroborating evidence or a more concrete offer of proof to demonstrate the relevance of proposed testimony on a witness's mental illness, and to exclude certain testimony to prevent unfair prejudice or confusion of the issues.
Cf. N.G. v. Superior Court, 291 P.3d 328, 339-40 (Alaska App. 2012).
As we already recounted, the superior court placed essentially no limits on Hunnings's testimony that she had been prescribed mental health medications; that she had stopped taking those medications several weeks before the night in question; and that she suffered mood swings and was violent and vindictive the night of the altercation because she was not on her medication. The trial court's only limitation was that Hunnings could not label her condition as "bipolar disorder."
Although Stoltze complains that Hunnings should have been allowed to testify that she had been diagnosed with "bipolar disorder," he offers no persuasive argument as to how this additional testimony would have benefitted his case. From our review of the record, we do not believe Hunnings's self-reported diagnosis would have appreciably affected the jury's assessment of her credibility, or the jury's assessment of her ability to perceive or recall events, given that she was allowed to testify at length about how her mental health condition actually affected her on the night in question.
We conclude that, given the facts of this case, the limits the superior court placed on Hunnings's testimony were not an abuse of discretion, and that the court did not violate Stoltze's constitutional right to present a defense.
See Cleveland v. State, 91 P.3d 965, 974 (Alaska App. 2004) ("[t]he right to present a defense does not include the right to demand that the trial judge disregard the rules of evidence").
Why we conclude that the prosecutor's remarks in closing argument regarding "scurrilous" defense tactics were improper but do not amount to plain error requiring reversal
At trial, Stoltze's attorney elicited testimony suggesting that the prosecutor encouraged Hunnings to testify consistently with her testimony to the grand jury — i.e., that the prosecutor encouraged her to testify that Stoltze assaulted her. Stoltze's attorney asked Hunnings if the prosecutor told her "how he expected [her] to testify." Hunnings replied that the prosecutor "said that I was to testify as I did at the grand jury." In rebuttal, the prosecutor called a state trooper who was present during the prosecutor's conversation with Hunnings. The trooper said the prosecutor did not tell Hunnings to lie on the stand or pressure her regarding her testimony.
In closing argument, the prosecutor referenced this line of inquiry, stating: "Dragging me into this case in such a way is scurrilous; it's a dirty defense tactic; it's inappropriate, and it's a last-ditch effort by the defense to divert attention away from the real issues here."
Stoltze argues that this argument was improper because the prosecutor's remarks were meant to "disparage the defense and to convince the jury that Stoltze's trial strategy was unethical and deceptive." When a defendant claims that prosecutorial argument amounted to misconduct, we consider "whether the prosecutor's statements, if in error, constituted such egregious conduct as to 'undermine the fundamental fairness of the trial.'"
Rogers v. State, 280 P.3d 582, 589 (Alaska App. 2012) (citations omitted).
We addressed a similar claim in Rogers v. State. In that case, the prosecutor characterized the defense theory of the case as a "fiction" and a "smoke screen," and argued that defense attacks on the State's case "were not legitimate defenses but rather distractions aimed at shifting the jury's focus from the real issues of the case." On review, we concluded that the prosecutor "spoke too strongly" in her characterization of Rogers's defense. But we ruled that the court had not abused its discretion by refusing to grant Rogers's motion for a mistrial, because the prosecutor made clear that Rogers was entitled to challenge the State's case and that the jury's role was to decide whether those challenges were supported by the evidence.
Id at 594.
Id.
Id.
In the current case, we conclude that it was improper for the prosecutor to engage in ad hominem attacks on the defense attorney and to characterize the defense attorney's tactics as "scurrilous," "dirty," and "inappropriate." But we do not find that the superior court committed plain error by failing to admonish the prosecutor or take other curative action in the absence of a defense objection. The comments were brief and related to a largely collateral issue. Moreover, there is no indication that these remarks unfairly prejudiced the jury against Stoltze. Stoltze was convicted of only one count related to his domestic violence against Hunnings: third-degree assault for putting her in a choke hold. This count was supported not just by Hunnings's pretrial statements and her grand jury testimony but by photographs showing red marks on her neck.
See Williams v. State, 789 P.2d 365, 369 (Alaska App. 1990) (distinguishing remarks disparaging the legitimacy of the defendant's legal theory or defense and arguments attacking the credibility of the defendant's version of events); State v. McDonald, 727 A.2d 424, 425-26 (Me. 1984) ("Although the prosecutor may attack the sufficiency of defense evidence, he is not at liberty to disparage the legal principles upon which the defense is based.").
See Rogers, 280 P.3d at 589; Cook v. State, 36 P.3d 710, 729 (Alaska App. 2001).
Stoltze also argues that the prosecutor improperly expressed his personal belief about Hunnings's credibility. He points to three statements the prosecutor made in closing argument: (1) "I believe the evidence is clear as to why Ms. Hunnings is willing to go so far as to lie as to what happened that night and to protect the very man that abused her and held her own gun to her head"; (2) "I believe the evidence has shown that, although [Hunnings] had consumed alcohol, her observations were still reasonable and accurate and you've heard her testimony and statements that day"; and (3) "Which [of Hunnings's statements] is a lie is the question, and, once again, I assert to you the second one was a lie, the first three [to the 911 operator, the troopers, and the grand jury] were the truth."
It is improper for a prosecutor to express a personal belief on the credibility of evidence or the guilt of the defendant. The primary danger of such expressions of personal belief is that they "may suggest to the jury that the prosecutor has information, not disclosed at trial, conclusively establishing the defendant's guilt."
Rogers, 280 P.3d at 589; Potts v. State, 712 P.2d 385, 394 (Alaska App. 1985).
Rogers, 280 P.3d at 591 (quoting Potts, 712 P.2d at 391).
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However, the remarks Stoltze complains of did not present this danger. The prosecutor's first two statements simply expressed the prosecutor's belief as to what the evidence showed. They did not imply that the prosecutor had arrived at these opinions based on evidence that was not before the jury. This was permissible argument.
We also find no error in the prosecutor's assertion that Hunnings lied in her trial testimony. Hunnings's trial testimony sharply contradicted her pretrial statements. Given this conflict in the evidence, the prosecutor could reasonably argue that Hunnings's trial testimony was fabricated and that her earlier statements were true. We note that Stoltze's attorney himself suggested in his closing argument that the State was incapable of proving its case beyond a reasonable doubt because none of Hunnings's statements could be trusted because her mental health condition made her an inaccurate reporter of the truth. We likewise do not view this statement by the defense attorney as an expression of personal opinion, but rather as an invitation to the jury to draw a reasonable inference from the evidence.
Conclusion
We AFFIRM the decisions of the superior court.