Garner v. State

AF- order superior court’s FIRMED. GARNER, Appellant,

Douglas Alaska, Appellee.

STATE A-731.

No. Appeals of Alaska.

Court of 3, 1986.

Jan. 24, 1986.

Rеhearing Denied Jan. We see no best interests. preclude to W.M.F.'s harm order to read Johnstone’s do not why or the rule should appears, course either the statute in the reason consideration if it further specif- hearing, privacy proceedings be either require as to waiver of that be read to portion particular entirety. or to a ic proceeding opened closed in their necessary аvoid actual in order to “had on his fore- Friedman, Wollenberg August, Justin bruises Royce, H. Richard face, on the sides of Sitka, head and scratches Friedman, appellant. for & back light red bruises across the and then Gen., Atty. McLaughlin, Asst. Michael S. neck.” of his Gorsuch, Atty. Norman C. Anchorage and Juneau, Gen., appellee. for Allen testified that Garner 3. Edward “verbally abused” Justin. C.J., BRYNER, and COATS Before Miller, mother, testi- 4. Linda Justin’s SINGLETON, JJ. Justin's in the months before fied that death, had noticed bruises on Justin she OPINION appeared afraid of Gar- and that he to be COATS,Judge. ner. following was convicted Douglas Garner argues that trial first Garner 11.41.120, trial, manslaughter, AS a this E. erred Thomas Schulz eighteen-month-old causing the death for tended to show Garner evidence which 29, 1983. Pahang September Justin prior to Justin on occasions had abused Miller the son of Linda Pahang was Justin 27, 1983. September boy friend. live-in was Miller’s and Garner 404(b) provides: Alaska Rule of Evidence sick Justin was September On Crimes, or Acts. Evi- Wrongs, Other him while stayed home with and Garner crimes, wrongs, or acts dence of other presented The facts to work. Miller went character of not admissible ‍‌‌​​‌​​‌‌​‌‌‌‌​‌​‌‌‌​‌‌​‌‌‌​​‌​‌​‌‌​‌‌‌​‌‌‌‌‌​​‌‍inju- that Justin died from at trial establish that he acted in order to show ries, were result of child conformity how- therewith. Only two September inflicted on ever, purposes, admissible for be have inflicted Justin’s people could mоtive, in- proof opportunity, such as J.H., or the next door day: Garner tent, plan, knowledge, iden- preparation, apartment building. J.H. neighbor in the or accident. tity, absence of mistake or part day Justin for had watched provides: of Evidence 403 Alaska Rule trial, Judge ad- At Schulz September 27. relevant, may be following Although over Gar- mitted probative value is out- excluded if its objection: ner’s preju- danger of unfair weighed adjoining neighbor apartment in an 1. A issues, dice, mislead- or confusion Wilson, Toy apartment, the Miller-Garner of un- jury, by considerations approximately days ten be- testified time, or needless delay, waste of death led to Justin’s fore the of cumulative evidence. presentation inflicted, noises which she heard a child might have indicated In Lerchenstein v. coming the Miller-Garner petition

beaten App.1985) for testified, particular Wilson apartment. (Alaska, 25, 1985), June hearing granted, like a male voice sounded “I heard what interelationship of A.R.E. we discussed the child, ‘Now, you,’ this will teach telling the 404(b): 403 and that,’ or, ‘Here, interspersed don’t do exclusionary provision of Evidence banging crying. “presumption represents Rule prejudicial effect day-care cen- our law A from Justin’s worker outweighs introducing prior crime what prior to Jus- that four months ter testified regard to mаy exist with death, probative raise his arms in a Justin would tin’s balancing is propensity. No case case approached she protective posture when State, 611 permitted.” Justin did not want Oksoktaruk him. She also testified When, how- picked up go when he with Garner relevant ever, act is Finally, testi- bad from the center. the worker propensity, the than fact other early material July or in fied that the middle may Second, admit the evidеnce if an Evi- the evidence in question all balancing dence Rule 403 shows the evi- related to incidents which involved preju- dence to be more than and occurred close in time to Justin’s making dicial. [Footnote omitted]. death. See 697 P.2d at 319. balance, Supreme the Alaska Court We also note that gave Schulz has cautioned that crimes were “[i]f cautionary instruction regarding the found admissible whenever offered to prior use of the incidents. See Roth v. prove a fact classified as material to the State, App.1981). case, prosecution’s underlying ‘the policy Judge us that Schulz could of protecting against the accused unfair properly determine that the prejudice evaporate through [would] of the evidence outweighed danger the interstices of the classification.’ prejudice. unfair We find no error. Oksoktaruk, quoting E. Clеary, McCormick on Evidence § Garner next Judge contends that (2d at 453 ed. The trial court’s Schulz erred in refusing to allow him to then, inquiry, First, is two-fold. present evidence that J.H. had abused her court must determine that the evidence own child. Garner wanted to introduce sought to be admitted has relevance this evidence in strengthen order to his apart Second, propensity. from contention that person J.H. was the who court must determine thаt nonpro- abused Justin and caused injuries. his fatal pensity outweighs relevance pre- Garner made proof an offer of that he highly prejudicial sumed impact of the produce could at least two witnesses who If there is [Citation omitted.] testify they would that had observed J.H. genuine relevance, no nonpropensity abuse her own child point to the where balancing step is never reached. they became сoncerned for the child’s safe Applying the standards which we set forth ty. The witnesses purportedly would have Judge conclude that testified cry, that when J.H.’s child would Schulz did not abuse his discretion in admit- would, J.H. would lose control and on occa ting the evidence which tended to indicate sion, violently shake or hit the child. One that Garner had abused Justin on allegedly of the witnesses was concerned occasions. enough safety for thе child’s to take J.H.’s First, the central issue in this case away child from J.H. for a short time. identity: was whether Justin died from in Judge Schulz ruled that Garner could juries by were inflicted Garner or alleged cross-examine J.H. about these inci- inflicted J.H. The evi dents of child but refused to indicating allow child abuse Gar testimony of the witnesses. In identify ner served to reach- person ‍‌‌​​‌​​‌‌​‌‌‌‌​‌​‌‌‌​‌‌​‌‌‌​​‌​‌​‌‌​‌‌‌​‌‌‌‌‌​​‌‍Garner as the conclusion, Therefore, who had abused his Justin. there Schulz relied in legitimate, part was a non-propensity reason to on the fact that the incidents child, admit the evidence.1 involved J.H.’s of her own Harvey 1. Garner Harvey, cites In the trial court admitted evidence that (Alaska 1979). previously severely spanked the defendant case the had that court stated: child. This child was case. not the victim in the past Evidence of abusive conduct is often supreme The court held that the evidence wаs strictly available in child abuse cases and improperly reversing, the su- admitted. speaking ever, totally is never irrelevant. How- preme pointed court out that the defendant had only its relevance often exists because it victim, severly spanked admitted that he past reflects on the of a offender to question in the case was whether the pattern continue a of child abuse. This is by Harvey inflicted caused the victim’s precisely type of inference Rule that, supreme pointed death. out The reason, prevent. intended to For this case, under the facts of the prior spanking the evidence of the past gen- dence of incidents of child abuse is properly could not have been erally prejudicial proba- held to be more than Harvey’s identity as the admitted establish tive. [Footnote omitted.] assailant or thе absence of mistake or accident. parts excluding journal also relied on the from evidence of a Justin. Schulz allegedly her fact J.H. had written that Keith was crying; charged murdering. child child was there was when the Keith wanted Justin had cried while J.H. attempt no evidence that journal introduce the to show watching him. instability, paranoia, victim’s “mental women, hatred of and ... violent nature.” ever On cross-examination denied Id. at Keith wаnted to these show daughter so shaking violently support character traits to daughter’s safety physical was threatened acted in self defense. The court custody anyone had ever taken stated: after an incident of abuse. excerpts journal from the was able to tes- Garner introduce sought portray Keith to admit do clearly timony investigated re- above, traits mentioned ports that J.H. had abused her and its valuе is that it such mis- Like evidence of Garner’s prejudice, of outweighs any concern con- conduct, of admission evidence of J.H.’s fusion of time. Here or waste Keith was alleged daughter governed abuse of her murder, on trial for and there were no and Again, Rules Evidence Keith to witnesses other than the imme- ruling to reverse of the trial are .the diate preceding shooting. events In judge only if we are that he has convinced circumstances, such Keith was entitled in refusing abused his discretion to admit present his version the events and of State, 700, Eben v. P.2d 599 supporting it (Alaska full 1979). However, 710 possible. manner as right of a defendant to his [t]he added). (emphasis Id. at 984 own witnesses to establish a defense is a process fundamental element of tightly- Garner’s trial the issues were law. Pahang [Citation omitted.] focused. died injuries right While the to call and which of child examine wit- were thе result and absolute, is not injuries. nesses either Garner or inflicted J.H. There question was no that had the cases, J.H. appropriate bow to opportunity injuries to inflict since she legitimate accommodate other inter- had been alone with Justin. process James v. ests in the criminal trial its (Alaska State, 885, App. P.2d 671 significant calls denial diminution “ 1983), grounds, P.2d ‘integrity rev’d 698 question into ultimate (Alaska, 1985); fact-finding process’ Larson v. of the and re- (Alaskа App.1982). quires competing interests be closely examined. it partic- Under these circumstances was Smaker v. ularly for Garner’s critical defense to App.1985),(quoting Mississip- Chambers v. suggested evidence which that pi, S.Ct. J.H., Garner, inflicted injuries not had (1973),quoting Berger 35 L.Ed.2d agree killed Justin. We 314, 315, U.S. California, 393 Schultz that the offered had some 540, 541, (1969)). showing in terms of weaknesses injuries had caused killed Justin.2 Keith v. 1980), supreme empha- jury could have reasoned importance daughter, sized that defendant’s J.H. abused right his fully present might defense. The that she been the have court held that the trial court erred abused There was that Justin. decision, cried, daughter Schulz based could have While his we believe part, possible that a child on the absence of evidence that Justin had reasoned that it was care, months, eighteen may have cried while in cried while in J.H.’s J.H. had that allegedly daughter only J.H.’s when cаre. Justin’s brain his which caused elude that the error in refusing to admit by violently shaking death caused the evidence was not harmless.4 head back and forth and a blow to the The conviction is REVERSED. head. Prom the record it persuasively Garner could argue that these SINGLETON, J., concurs and dissents. reports were consistent with SINGLETON, Judge, concurring and dis- abuse which allegedly inflicted on her senting. Finally, we know from the I concur with the court’s resolution of reсord that alleged incidents of abuse most of the issues in this case. I cannot had occurred close in time to Justin’s death agree, however, with the court’s decision daughter since J.H.’s was five months old that the trial court abused its discretion at the time of Justin’s death. We conclude precluding Garner from offering extrinsic that, given importance of this evidence evidence under Alaska Rules of Evidence defense, to Garner’s thе trial court abused 404 and that J.H. abused her own child its discretion in the evi- prior occasions, respect- therefore dence.3 fully dissent from portion opin- argues The state that the failure to ion. admit the evidence Alaska 404(a) Rule of provides Evidence was, error, J.H. of her harm person’s evidence of a character is not points less. The state out that Garner was admissible for the proving able to cross-examine officers about in conformity acted therewith on par- investigation their doing of this case. ticular occasion. This admonition is re- so, Garner was able to cross-examine the peated 404(b), in Rule excep- with certain the they about fact that had received tions: reports that J.H. had daughter. abused her (b) Crimes, Other Wrongs or Acts. under ruling, Schulz’s crimes, Evidence of wrongs, or acts Garner was unable to any direct prove is not admissible to the character evidence of by the person of a in order to show that he Judge Schulz jury instructed the that the acted in conformity therewith. reports by of abuse J.H. were admitted however, pur- be admissible for other “only give background poses, proof motive, such as opportu- of information during that the officer had intent, nity, preparation, plan, knowl- course of his investigation” and further edge, idеntity, or absence of mistake or reports that the were not admitted to es accident. tablish the of truth what was said in the provides: Alaska Rule of Evidence 403 reports. clearly This should have limited of Although relevant, effectiveness the evidence that J.H. may be had abused her possi Given the probative excluded its value is out- bly weighed critical nature of the evidence danger preju- of unfair formerly daughter, dice, issues, we con- confusion of the or mislead- generally danger allowing We believe that there is less more liberal standard in evidence of prejudice of unfair under A.R.E. 403 in admit- prior bad acts or crimes where the defendant is ting prior person bad acts crimes of a who is attempting to use this evidence to establish that prior not a defendant than there is when the someone else committed the crime. See United bad аcts or crimes involve the defendant. The great danger Aboumoussallem, States v. 726 F.2d of of bad (2nd Cir.1984); Flowers, People v. acts or crimes of a may that the defendant (Colo.1982), dismissed, appeal 918-20 803, per- conclude that the defendant is a bad (1982). upon son and convict him based that evidence. (Alaska 1980). Oksoktaruk v. However, disposition 4. Our of this issue makes it unneces- danger this does not exist where the sary to reach the other issue which Garner rais- person involved in the bad acts or crimes es. Therefore, person is not the on trial. some specifically courts have stated that there is a The fact of un- inference: defendant

ing jury, or considerations time, violent occasions has been delay, of or needless waste comparison he—at shows that least presentation of cumulative people have not been violent—hаs a principles from an have derived two We violence, for and from this propensity (1) rules: a trial court of these examination in- is asked to factfinder of a no discretion to admit evidence has fer the defendant violent for the solely trait character Moreover, all question. occasion in conformity acted proving excluding justify some factors time, (2) the that trait at a later but with If present. acts evidеnce are admit character evi has discretion to disputes his involvement defendant probative its purposes, for other may time-consuming fistfights, there be out outweighs the considerations set value distracting litigation is- of collateral confusion issues in Rule i.e. may The factfinder be more will- sues. v. delay of the trial. Moor ‍‌‌​​‌​​‌‌​‌‌‌‌​‌​‌‌‌​‌‌​‌‌‌​​‌​‌​‌‌​‌‌‌​‌‌‌‌‌​​‌‍ing guilty hear- to return a verdict after 1985); App., Lerchenstein simply the de- the evidence because App. person. Fi- fendant be a bad 1985) (Alas hearing granted, petition for fist- nally, of several 25, 1985). ka, June fights neighbors deadly prohibited uses separating The line spouse knofe against assault with a one’s permitted evi- from the uses character great, is not [footnotes omitted.] admittedly narrow one. Never- dence is Kuhns, Propensity to Misunderstand theless, distinguishing factors. there are Evidence, Acts Specific Character of following еx- gives the One commentator L.Rev. Iowa ample prohibited of a use case, charged with the Garner is dence: to defend homicide of a child seeks general con probably would be [T]here approxi- showing that J.H. was following illus example sensus that the mately the time the incident occurred and propensity infer impermissible trates an crime. show that J.H. committed the To is charged ence: The defendant with аssailant, prove he was offers to murdering by stabbing. He ad his wife angry other occasions J.H. became two present mits at time of vigorously at child and shook her. her own incident, claims that a third fatal but Thus, sought to that J.H. a show wife. To show that person stabbed his (i.e. propensity trait a to become assailant, the defendant was chil- angry point with to violence sever prosecutor offers to that on dren), conformity with that and аcted the defendant had al occasions assaulting Pahang, the vic- trait fistfights neigh with become involved tim. and Under Moor bors. inadmissible for this evidence was fistfight no discretion to trial court had

The of the relevance not an it was abuse upon fortiori, a admit it.1 A clearly dependent is See, e.g., at 479- §Id. 412 suggestion conduct. in Garner's 1. While there is some Thus, signa speak a majority opinion, some cases extrinsic brief and in the Here, as operandi. a modus ture child crime evidence of J.H.’s treatment her own clear, majority opinion makes the differences "identity” somehow to show relevant Justin, own child wrong. conduct so person abusing plainly between J.H.’s this is any predominate similarities to generally, completely over say, a crimi- While one could that in injuries, surrounding Justin’s perpetrator “identity” al- the circumstances nal case the issue, simply languagе only cannot be said that ways it an loose leads such 410, identify Justin’s assail Wigmore, her as conduct serves § See 2 J. Evidence confusion. 459, State, (Chadbourn 1979). ant. Galauska v. 527 P.2d See at 477-78 rev.ed. Where 1974), (Alaska grounds, 532 identify on other him as person’s are used acts modified State, 1975); acts, (Alaska v. 704 past Adams P.2d 1017 who committed 1985). (Alaska App. image & n. 5 virtually 798 the mirror conduct must be to limit Garner to cross-exami- discretion value of the evidence wаs regarding nation it. very weak and the risk of confusing the extending issues and (by effect, the trial view, my this case is but another in a trying J.H. for incidents of long ig- list of cases in which this court child) of her own very great. See trial discretion simply nores sub- Aboumoussallem, United States v. 726 judgment stitutes its for that of the trial (2d Cir.1984) F.2d (rejecting See, discretionary court on the issues. e.g., presented similar evidence by the defend- State, Browning v. reasons). ant for these Under these cir- Aрp.1985) (Singleton, dissenting); ‍‌‌​​‌​​‌‌​‌‌‌‌​‌​‌‌‌​‌‌​‌‌‌​​‌​‌​‌‌​‌‌‌​‌‌‌‌‌​​‌‍J. John- cumstances, even it was discretionary Fairbanks, son v. 703 P.2d with the trial court whether to admit or (Alaska App.1985) (Singleton, J. dissent- evidence, exclude the proposition I would ing); State, v. 695 P.2d 233- Jackson reject, rejection of the evidence is not (Alaska App.1985) (Singleton, J. dissent- an abuse of discretion. The trial court’s ing); v. Williamson decision not to admit the evidence should (Alaska App.1984) (Singleton, 974 n. 1 J. I, appeal. therefоre, be affirmed on dis- dissenting). generally Wright, See sent from the court’s decision to reverse.3 Courts, OmniscieAppellate Doubtful (1957). Minn.L.Rev. 751 child, feelings regarding J.H.’s manifested,

however do not establish mo- See, injure e.g., Wig-

tive to Justin.2 2 J.

more, Evidence, (Ghadbourn seq. et. § 1979). Thus, that,

rev.ed. it is immaterial

in fact the evidence did establish injure

had a motive to her means opportunity injure him would make Id.,

the evidence admissible. Section 141. summary, this is another case in which (an important to differentiate motive While a trial court emotion) feeling impelling might properly aрply hypothetical state of one to- some —the way ward an act—and intent —the mental state ac- dence rule which violates the constitu- tion, companying Wigmore, jurisdiction prop- an act. See 2 J. Evi- it is settled in this ‍‌‌​​‌​​‌‌​‌‌‌‌​‌​‌‌‌​‌‌​‌‌‌​​‌​‌​‌‌​‌‌‌​‌‌‌‌‌​​‌‍that a (Chadbourn application § rev.ed. er of Evidence Rule 403 does not reason, constitutions, For this Alaska cases limit use of similar violate the state or even if federal arguably act evidence to show "motive” to acts affirma- it excludes some evidence favorable to tively the defense. See linked with the crime or victim Larson of evi- App.1982). If exclusion consideration. See under Gould v. (Alaska 1978) (affirmative dence favorable to the accused violates the con- stitution, link Conversely, alleged prior establishing it violates Rule 403. if it between bad acts mo- Rule it does does not violate not violate prosecuted tive and the crime Accord, constitution. required). Fields v. 629 P.2d (Alaska 1981) (prior charge bad check 49-51 Secondly, interpret interplay even if insolvency); admissible show defendant’s between Rules and 404 in the defendant’s favor, holds, Burke v. 624 P.2d majority as the the trial court still 1980) (prior victim admis- sexual acts with same excluding de- does not abuse its discretion in sible). any no There is evidence that J.H. had fense value of the evidence whеre feelings regarding Pahang. strong Hence, the "sideshow evidence is weak and the risk that regarding her actions [determining child] whether J.H. abused her injuring could not establish a "motive" for Jus- up circus Garner is [whether will swallow tin. great. guilty See cases of Justin’s homicide]” Aboumoussallem, 726 cited in United States v. Cir.1984) (2d upholding aspects require 3. Two other of this case brief F.2d First, People evidence. See abo mention. Garner claims that the state exclusion of defense Mowers, (Colo.1982), and federal constitutions limit the trial court’s dbmbsed, citing appeal U.S. 103 S.Ct. discretion under Evidence Rule Mississippi, Chambers v. L.Ed.2d

Case Details

Case Name: Garner v. State

Court Name: Court of Appeals of Alaska

Date Published: Jan 3, 1986

Citation: 711 P.2d 1191

Docket Number: A-731

Court Abbreviation: Alaska Ct. App.