REID DUARD HAYES v. STATE OF ALASKA
Court of Appeals No. A-12801
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
September 18, 2020
Opinion No. 2678
Trial Court No. 3AN-12-03709 CR
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OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Paul E. Olson, Judge.
Appearances: Michael Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. Patricia L. Haines, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Harbison,
Judge ALLARD.
Reid Duard Hayes was convicted, following a jury trial, of three counts of first-degree sexual abuse of a minor, three counts of second-degree sexual abuse of a minor, and one count of attempted second-degree sexual abuse of a minor for sexually abusing three of his girlfriend‘s underage daughters over the course of several years.
Hayes raises six claims on appeal. The first two claims require us to construe
We are also required to decide whether the use of an investigating officer as the interviewer in a child advocacy center interview constitutes a per se bar to admitting those interviews under
Hayes raises four other claims of error, relating to (1) the State‘s use of a child sexual abuse expert; (2) N.E.‘s trial testimony; (3) a discovery matter; and (4) a special condition of probation. For the reasons explained here, we reject each of these claims of error.
Background facts
In 2007, Hayes began dating and living together with a woman who had five daughters: S.D. (thirteen years old), N.E. (nine years old), K.E. (seven years old), A.E. (four years old), and L.E. (under one year old).
According to later trial testimony, Hayes began sexually abusing S.D. around the summer of 2008, when she was fourteen years old. S.D. testified regarding an incident in which Hayes started kissing and touching her while they were watching a movie and then penetrated her vagina with his penis. S.D. recalled at least one other specific incident of sexual penetration, although she testified that it happened many more times.
N.E. testified that Hayes first sexually abused her when she was around twelve years old. As was the case with S.D., the sexual abuse took place while N.E. and Hayes were watching a movie. The first time Hayes touched her vagina, they were laying on the bed facing the television, and he moved his hand down her stomach under her clothes until he reached her vagina; he placed his fingers on top of her vagina for about five to ten minutes. Although she testified there were three to five “really similar” incidents, N.E. specifically remembered the last occurrence, when he penetrated her with two fingers.
K.E. testified to an incident in late 2011 or early 2012, when Hayes moved his hand towards K.E.‘s vagina while hugging her goodnight. Because K.E. was wearing tight-fitting “skinny jeans,” Hayes was unable to get his hand inside her pants. K.E. grabbed Hayes‘s hand and moved it away, telling him that she “wasn‘t his girlfriend; [she] was his daughter.”
Shortly thereafter — in January 2012 — the girls disclosed the sexual abuse to their aunt, who then brought them to Alaska CARES, a child advocacy center (CAC).
There, two detectives conducted forensic interviews with S.D., N.E., and K.E., as well as with their younger sister A.E., then eight years old.
Hayes was later indicted on three counts of first-degree sexual abuse of a minor, three counts of second-degree sexual abuse of a minor, and one count of attempted second-degree sexual abuse of a minor.1
Hayes‘s trial was held in June 2016. All three victims — S.D., N.E., and K.E. — testified at trial, as did A.E. The Alaska CARES videos of N.E. and K.E. were also played for the jury as part of the State‘s case-in-chief. Hayes maintained his innocence, and his defense centered on discrediting the girls. The victims’ mother, who was engaged to Hayes at the time of trial, testified in support of Hayes‘s account.2
This appeal followed.
Hayes‘s argument that Alaska Evidence Rule 801(d)(3) should be construed to only apply to victims who are under the age of sixteen at the time of trial
introduced for the truth of the matter asserted.3 But
The statement is a recorded statement by the victim of a crime who is less than 16 years of age and
(A) the recording was made before the proceeding;
(B) the victim is available for cross-examination;
(C) the prosecutor and any attorney representing the defendant were not present when the statement was taken;
(D) the recording is on videotape or other format that records both the visual and aural components of the statement;
(E) each person who participated in the taking of the statement is identified on the recording;
(F) the taking of the statement as a whole was conducted in a manner that would avoid undue influence of the victim;
(G) the defense has been provided a reasonable opportunity to view the recording before the proceeding; and
(H) the court has had an opportunity to view the recording and determine that it is sufficiently reliable and trustworthy and that the interests of justice are best served by admitting the recording into evidence.
At the time of the interviews in this case, N.E. was thirteen years old. But by the time of trial, over four years later, N.E. was eighteen years old.
The State asked the court to admit K.E.‘s and N.E.‘s video-recorded statements under
should be interpreted to mean that the victim is less than sixteen years of age at the time of trial.4 The State argued that this language should be interpreted to mean that the victim was less than sixteen years of age at the time the statement was made. The trial court agreed with the State and admitted the statements. Hayes now appeals that ruling.
In interpreting a statute, we examine de novo “the meaning of the statute‘s language, its legislative history, and its purpose” in light of “reason, practicality, and common sense.”5 Under Alaska‘s “sliding scale” approach to statutory interpretation, “the plainer the statutory language is, the more convincing the evidence of a contrary legislative intent must be.”6
We acknowledge that the relevant language of
In our view, the State‘s reading is the more natural one. Typically, when a person describes a recording, the expectation is that the description applies to the recording at the time it was made, not to some future time when the recording might be
used. For example, if a video is described as “the recorded statement by a victim who is intoxicated,” the expectation would be that the victim was intoxicated at the time the statement was made. Likewise, “a recorded statement by a victim who is wearing a blue shirt” would be assumed to be describing the victim in the recording, rather than what the victim is wearing in the courtroom.
In other words, the language of
This interpretation of the rule is consistent with how other states have interpreted similar rules in their own jurisdictions. Although some of the analogous rules in other jurisdictions are unambiguous and clearly state whether the victim‘s age referenced in the rule is the age at the time the recording was made or at the time of trial,7
there are some rules that contain an ambiguity similar to the one presented here.8 In the face of such ambiguity, courts in other jurisdictions have generally concluded that the law is referring to the victim‘s age at the time the recording was made.9
The legislative history of
In introducing the bill to the Senate Judiciary Standing Committee, its sponsor, Senator Hollis French, expressed his belief that “young victims of crime don‘t
get a fair shake in courtrooms in Alaska.”10 He described the longstanding, beneficial practice of forensically interviewing child victims at CACs — “safe, nurturing, child-friendly environments [where] the interviewers are specially trained to work with children and work with a multidisciplinary team focused on the child‘s welfare.”11
Senator French explained that the victim‘s narrative, as told to the forensic interviewer, is “often much more informative about the child‘s experience with an abuser than the testimony the child will give in a formal court setting.”12 Even if an attorney could elicit the basics of the victim‘s account on the witness stand, that account rarely possessed the “vitality and the breadth and the depth of the statement given back at the CAC.”13
Senator French expressed his dismay that a child victim‘s “full” statement at the CAC was largely inadmissible in court, and that the jury was therefore forced to rely on the victim‘s narrative often years after the fact.14 He explained that a victim‘s “difficulty in articulating the details of a very painful and very private experience often results in a reduction of the charges”15 and that the bill would therefore “enhance the law enforcement process to bring child predators to justice.”16 Thus, by “let[ing] those
statements come in, let[ing] the jury see the entire story,”17 the proposed rule would “help protect Alaska‘s children and bring swifter justice for them.”18
The legislature‘s goal of “amplify[ing] the voices of children who have been abused and children who have been sexually assaulted and let[ing] their voices shine in a courtroom as strongly as possible”19 does not depend on the victim‘s age at trial. In fact, adopting Hayes‘s interpretation of only allowing admission of these statements when the victim is under sixteen years old at the time of the trial would frustrate the legislature‘s purpose of providing narratives that are closer in time to the incident, when memories are most fresh.20 Furthermore, as other jurisdictions have recognized, it would be unfair to penalize the victims for delays in the trial process outside their — or even the State‘s — control.21
Hayes argues that the primary concern of the legislature — preventing inaccurate or unreliable testimony caused by a child victim‘s impaired communication on the stand in the presence of a defendant — no longer applies to adult witnesses. We
acknowledge that adults are likely better equipped to confront painful experiences, but the legislature‘s
In sum, we conclude that the language of the rule, the relevant legislative history, and the underlying policy rationales support the State‘s interpretation of
Hayes‘s argument that the videos were foundationally deficient under Rule 801(d)(3) because they were conducted by the investigating officers
Hayes also argues that both K.E.‘s and N.E.‘s videos were foundationally deficient under
to determine that “the taking of the statement as a whole was conducted in a manner that would avoid undue influence of the victim.”
Hayes concedes that the trial court “did generally evaluate the interviews under Rule 801(d)(3)(F).” He also concedes that “outwardly, there was nothing suggestive about the procedure.” According to Hayes, however, the trial court failed to consider that allowing police interviewers would raise the same concerns addressed in subsection (C) and that their presence would unduly influence the victims under subsection (F).
In essence, then, Hayes‘s argument is that interviews by police investigators assigned to the case should be per se inadmissible under
per se rule in Augustine. Instead, because we were already remanding for further findings under
Now, with the issue squarely presented, we conclude that interviews conducted by police investigators involved with the case are not per se inadmissible under
Beginning with the statutory language, we note that nothing in the rule itself forbids police investigators involved in the case from conducting the interviews. This stands in contrast to subsection (C), which expressly forbids the prosecutor and defense counsel from being present when the statement is taken.
Furthermore, the legislative history of Senate Bill 117 suggests that the legislature contemplated that police officers would be conducting forensic interviews. The bill‘s proponents before the Senate Judiciary Committee included law enforcement personnel who were specially trained to conduct these interviews. Senator French, when introducing the bill, specifically noted that the “multidisciplinary team [at the CAC] focused on the child‘s welfare . . . may include police officers, social workers, child therapists, medical professionals, and child advocates.”28 Moreover, the bill did not require an interview to be conducted at a CAC, as the senators noted the limited access
to CACs around the state.29 In other words, the legislature assumed that police officers would conduct at least some of the interviews the legislature intended to be admissible under
Given the legislature‘s awareness that police officers would be conducting some of these interviews, and given the legislature‘s explicit prohibition of prosecutor or defense counsel involvement in the interviews, it is reasonable to conclude that if the legislature had intended to exclude police investigators involved in the case from conducting these interviews, it would have said so expressly. In the absence of an express directive, we decline to adopt a per se rule excluding all interviews conducted by police investigators involved in the case.
As we acknowledged in Augustine, however, an officer intimately involved with the case heightens the possibility of unduly influencing the victims. Trial courts evaluating interviews conducted by police investigators should be particularly wary of this possibility and, in assessing whether the interviews meet the foundational requirements of
Here, the trial court independently reviewed both interviews and, as Hayes acknowledges, made the requisite analysis under
influence.” Although the court noted that another detective‘s questioning of N.E. was “a little bit different,” again, the court found that “there wasn‘t any inducement or any attempt to unduly influence the person being interviewed at that time.” The court noted that N.E. actually corrected the officer and tried clarifying the questions at various points, which further indicated that there was no undue influence on her.
The court also distinguished these videos from others it had seen — those that were “so leading and so suggestive” that it would not allow them to be admitted. In contrast, the court found K.E.‘s and N.E.‘s videos “sufficiently reliable and trustworthy that justice [would be] best served by allowing
Given these findings, it is clear that the superior court considered and rejected the possibility that the police investigators involved in the case unduly influenced the responses provided by the children. Under these circumstances, the trial court did not abuse its discretion in admitting the Alaska CARES videos of K.E. and N.E. under
Hayes‘s challenge to the child sexual abuse expert testimony
On appeal, Hayes argues that the trial court abused its discretion by allowing the State to offer testimony of expert witness Pamela Karalunas in its case-in-chief. Karalunas, the statewide coordinator of the Alaska Children‘s Alliance, was qualified as an expert witness in the “dynamics of child sexual abuse and the process of disclosure of child sexual abuse.” As the State‘s final witness, she testified regarding children‘s reporting patterns, drawn from her decades of experience working with child sexual abuse victims and their families. Hayes argues that this testimony amounted to “sexual abuse profile evidence” and that Karalunas was acting as a “human polygraph.”
As the Alaska Supreme Court has recognized, “[i]n child sexual abuse cases, there is usually little corroborating physical evidence of the alleged abuse; the child may not report the abuse until several years have passed and the matter often comes down to the alleged victim‘s word against the word of the alleged abuser.”31 And this Court has held that an expert witness can testify “concerning the usual behavior of victims of child sexual abuse” in order to help the jury better assess the victims’ credibility.32
We note that there are limits to such opinion testimony. For instance, it must be offered in response to a defense claim that the “conduct in question is inconsistent with claims of sexual abuse,”33 and the experts must “generally ma[ke] it clear that [they are] not speaking for the truthfulness of these particular witnesses.”34 There is a “significant distinction between presenting a witness, such as a polygraph operator, to testify that a person is telling the truth, and presenting a witness who can state that the behavior of a witness falls within a common pattern.”35 Based on our
review of the record, we conclude that Karalunas‘s testimony was consistent with these limitations and that the court therefore did not abuse its discretion in admitting it.36
Hayes‘s challenge to N.E.‘s testimony that Hayes admitted to having been sexually abused himself
At trial, N.E. testified on direct examination that when Hayes‘s abuse was finally revealed to her mother, her mother insisted that N.E. confront Hayes directly. N.E.‘s mother brought N.E. and Hayes into the
Prosecutor: Did he say anything more about I guess why he had touched you?
N.E.: In that same room he said it was because he was molested as a kid.
Prosecutor: Did he say I guess that affected me?
N.E.: Yes.
Additionally, the jury heard N.E.‘s Alaska CARES interview, in which N.E. also mentioned Hayes‘s statement that he had been molested as a child.
On appeal, Hayes claims the trial court should not have admitted this evidence because it was irrelevant and prejudicial under
403. He argues that this testimony amounted to propensity evidence which allowed the jury to believe that because he had been molested when he was younger, he was more likely to commit this particular crime.
We agree that, as a general matter, evidence of a defendant‘s own abuse as a child can carry “a strong and unmistakable potential for prejudice.”37 In Nelson v. State, for instance, we reversed a conviction for second-degree sexual abuse of a minor when the trial court allowed a State witness to testify that the defendant “had once admitted being sexually abused as a boy by his father.”38 We recognized “the widespread belief that sexual abusers of children are frequently people who have themselves been victims of abuse as children.”39 This was particularly true in Nelson‘s case — where the conduct the defendant had been subjected to as a child closely tracked the conduct to which he allegedly subjected his young victim.
But Hayes‘s case is meaningfully different from Nelson, and we conclude that, to the extent that N.E.‘s testimony should not have been admitted, any error was harmless. The prosecution did not dwell on N.E.‘s testimony or make needless references to Hayes‘s past. Instead, the prosecution only once referenced this admission in closing argument to bolster N.E.‘s credibility. The prosecutor argued that, given N.E.‘s report of Hayes‘s detailed reaction, it was unlikely that she was the one lying in the confrontation (rather than the defendant or her mother, who testified that no admission of guilt had occurred). The jury was also instructed to view Hayes‘s unrecorded, out-of-court statement with caution. Under these circumstances, any prejudice to Hayes was minimized, and we find no reversible error.
Hayes‘s argument that he was prejudiced by the trial court‘s refusal to compel the production of Tiburon reports
Prior to trial, Hayes moved to compel Tiburon reports40 relating to the victims and their aunt (who had brought them to Alaska CARES). He asserted, in general terms, that these records of police contacts “may lead to further discoverable information bearing on the credibility of S.D., N.E., K.E. and [their aunt].” He also asserted that “[u]pon information and belief, both S.D. and K.E. have had contact with [the Anchorage Police Department], as runaways.” The trial court denied this request, although the trial court appears to have granted a second, narrower request for certain Tiburon records related to a police contact with K.E. at her elementary school.
On appeal, Hayes argues that the superior court erred when it denied his initial motion to compel Tiburon reports. He argues that he was prejudiced by this error because discovery of these reports could have provided “evidence that the girls ran away prior to reporting the offenses” and that this evidence “would have supported Hayes‘s claim
But, as the State points out, Hayes had similar evidence in his possession at the time of trial and did not use it. Our review of the record indicates that Hayes received a significant amount of discovery from the Office of Children‘s Services documenting the family‘s poor living conditions, as well as the mother‘s drug abuse and neglect. The confidential reports also included numerous references to incidents in which S.D. and K.E. ran away from home. The State also provided police reports related
to these runaway attempts — information specifically requested as part of Hayes‘s motion to compel Tiburon reports.
Hayes does not dispute that his attorney had this evidence regarding S.D.‘s and K.E.‘s runaway attempts and failed to use the information at trial. The attorney did not question the girls about their runaway attempts, nor did he call anyone identified in the reports to testify as a defense witness.41
The State argues that, given these circumstances, any error in failing to discover the Tiburon reports was harmless. We agree, and we therefore reject this claim.
Hayes‘s challenge to Special Probation Condition 12
Finally, Hayes argues the trial court committed plain error by imposing an unconstitutionally vague probation condition at sentencing. He specifically challenges Special Condition Number 12, which read as follows:
The defendant shall submit to a search of their residence, any vehicle under their control, personal computer and/or any item which has internet connectivity (i.e., X-Box, cell phone, palm pilots, Blackberries) at the direction of a probation officer for the presence of sexually explicit material as defined in
AS 11.41.455(a) . The defendant shall provide the probation officer any and all passwords used for such devices.
Hayes argues that the requirement that he submit to certain searches for “sexually explicit material” was overbroad.
Hayes‘s argument is unpersuasive. The imposed probation condition does not require him to submit to searches for sexually explicit material as a general matter;
it requires him to submit to searches for “sexually explicit material as defined in
Conclusion
For the reasons described above, we AFFIRM the judgment of the superior court.