Sluka v. State

Steel, v. appeal upon Co. Armco P.2d 815-16 n. tice of the Attorney General’s 1982). (Alaska Office. Appellate Rule 521 allows the court to accept

exercise discretion to its a late or filing

improper prevent “surprise or in-

justice.” R.App.P. Alaska Estate See Smith v. of 1981) (affirming discretionary deci- dismissing appeal

sion late filed not, ruling). parties

CFEC below did however, appeal superior Gary SLUKA, court’s dis- Appellant, Indeed, Judge jurisdie- cretion. Schulz's v. tionally ruling suggests based that he did Alaska, Appellee. STATE of not he believe had discretion to exercise.

Although parties agree February all that a WATTS, Appellant, Ella filing3 service would have untimely, general’s been the attorney of- acknowledges superior fice Alaska, Appellee. STATE of would have abused its discretion A-763, Nos. A-834. new, accepting day six to sixteen late filing upon proof of the attorney Appeals service on of Court of Alaska. general’s agree. office. We April A dismissal is an extreme sanction. Alaska, University

Sheehan v. of (Alaska 1985). A

prejudice, however, can overcome

strong policy hearing a case on the Here,

merits. id. at 1297. the attor- general’s

ney office has no demonstrated prejudice

such from a late served notice of

appeal outweigh as would our desire to

dispose appeals on their merits. date,

At this we late see no reason to

remand trial court to exercise its

discretion. To avoid the delay expense issue, proceedings

of further on this we

exercise our own Accordingly, discretion.

under Rule superior we reverse the appeal

court and order the reinstated. timely appeal,

Vincent filed his mere- but

ly failed proper to serve the notice on the point

office. At this no see reason to

require Vincent appeal. to refile the entire general’s office, however, attorney de- appeal. Thus,

serves formal notice

we REVERSE and REMAND and instruct superior court to appeal reinstate the

upon proof Vincent’s service the no- text, date, attorney general’s

3. On this accompanying office first & appeared supra and moved to strike. See note Fairbanks, Zervos, Larry graphs for appellant bruising C. showed extensive Gary Sluka. face, left side of A.W.’s both A.W.’s black, eyes were that A.W.’s entire fore- Kenworthy, Lawrence C. Law Office of swollen, head was discolored and and that Rosie, Fairbanks, appellant John Ella large scrape A.W. had a bruise and behind Watts. her left ear. Scukanec, Gen., Atty. John A. Asst. Of- Appeals, fice of An- Sp. Prosecutions and The room emergency physician tele- chorage, Brown, Gen., Atty. Harold M. and MacFarland, phoned Alan pediatrics Dr. Juneau, appellee. for specialist. Dr. go MacFarland did not hospital the but ordered admitted to A.W. BRYNER, Judge, Before Chief COATS pediatrics neurologi- of her observation SINGLETON, and JJ. functioning. following day, cal The Janu- ary Dr. MacFarland examined OPINION pho- A.W. At that he took time additional COATS,Judge. tographs face, pho- A.W.’s and also took *This is a appeal by consolidated Ella tographs appearing of bruises elsewhere Gary involving charges Watts and Sluka body. on A.W.’s alleged which arose out of an incident questioned A.W. was numerous times involving three-year-old child abuse Watts’ about she injuries. how received her Testi- A.W., daughter, occurring on December mony about A.W.’s out-of-court statements convicted, jury 1983. Watts was after a grand pro- was trial, jury received at both the non-support, criminal AS 11.51.120. convicted, trial, ceeding Wiess, daughter and at her jury Sluka was after a trial. Eliana, degree, Collins, in the Shippey, assault second AS 11.41.- the social worker 210(a). police detective,1 the and Dr. MacFarland all testified to A.W.’s statements about Watts, Sluka, together and A.W. all lived kicking addition, the how occurred. in Fairbanks. On New Year’s Eve they testified about A.W.’s actions where p.m., about 6:00 Watts took A.W. to the A.W. purportedly Wiess, demonstrated how home agreed of Maria had who kicking babysit occurred. The night. brought A.W. over witnesses’ testimo- Watts aspirin explained ny kicking and acci- tended to Sluka had establish that the A.W., dentally kicked injuring the side left not accidental. of her face. Watts told Wiess that she had contrast, Sluka and Watts both testi- A.W., a nurse examine and that the nurse fied actually at trial that had Sluka kicked alright. said After had Watts A.W., They but that it was an accident. left, Wiess became concerned about wrestling testified they on the bruising

extent of the swelling and on floor when A.W. walked into room and Eliana, A.W.’s daughter, face. Wiess’ and accidentally According kicked. friend, daughter’s her Shippey, Rockson testimony, only their A.W. had one small Shippey looked at A.W. Ser- called Social slight swelling red mark and her some vices because he believed that A.W. had they dropped face when off her at Wiess’ “badly been abused.” home. representative Services, A from Social jury convicted both Watts Sluka Collins, Ernie arrived at the Wiess home they appeal, raising now is- numerous emergency custody and assumed of A.W. sues. We find involving the issues hospital emergency He took A.W. to the admission A.W.'s out-of-court police room. A state- Fairbanks detective took ments photographs exceptions under long A.W.’s face not after rule hospital. photo- admission into right disposi- Sluka’s to confrontation police only grand jury, 1. The detective testified at not at trial. they might properly character sepa- where be these issues will discuss

tive. We thought. product ized as the of reflective rately. supreme 1307. The Lipscomb, 700 P.2d at EXCITED UTTERANCE expressed concern where court has also n admitted as excited utterances case, A.W., alleged in this victim might product of reflection. have been the eight old at the years and months three (where an Agoney, 608 P.2d at 764 to these giving incident rise time given during interrogation ninety swers at the trial. charges. never testified She crime, sixty after minutes of which minutes any determination There was never car, patrol in the state declarant was alone testify, and there incompetent to A.W. was not have been admitted under ments should why nothing in record to indicate 803(2)). Golden, Rule United States v. Instead, not called as a witness. Cf. cert, (10th Cir.), denied, 671 F.2d other presented several witnesses the state 72 L.Ed.2d 179 U.S. told them. as to what A.W. who testified (where described act after declarant stated that testified that A.W. Maria Wiess hour, driving per miles at 120 miles twelve and that her his foot daddy kicked with properly was held admitted statement Apparently A.W. called it an accident. utterance). excited Wiess testified “Daddy.” Eliana Sluka girl because said she was a bad that A.W. Commentary The Alaska Evidence Rules daddy kicked her. crying and her she was provides: how A.W. then demonstrated Eliana Wiess measurement is the dura- the standard of her foot. kicking motions with made three the state of excitement. “How tion of told Shippey testified that A.W. Rockson Obviously prevail? long can excitement daddy playing him that she and her and the charac- pat are no answers there kicking me.” Accord- “and then he started large- or event will ter of the transaction by Shippey, then demonstrated ing to significance of the time ly the determine couple leg him on the kicking hard factor.” argued these state- times. The state that (cita- Commentary at 230 Evidence Rules utteranc- were admissible as excited ments omitted). tions under Alaska Rule of Evidence es Shell, 633 F.2d v. Iron United States continuing objection to the entered a Sluka cert, denied, (8th Cir.1980), 77 admission of these statements. (1981), 803(2)pro Alaska Rule of Evidence testimony police court allowed the trial hearsay rule for exception an vides nine-year-old by a made statements about exception The allows excited utterances. attempted sexual assault girl concerning an relating to a admission of statement “[a] seventy- forty-five and occurring between the startling event or condition made while statements were The five minutes earlier. excite was under the stress declarant admitted; stated the court properly held or condition.” by caused the event ment the fact lapse of time nor the that neither added). 803(2) (emphasis A.R.E. See response made the statement was that falls un a statement question whether dispositive: inquiry an exception is com the excited utterance der the trial Rather, these are factors of the trial mitted to the sound discretion determining wheth- weigh in must State, 700 P.2d Lipscomb v. court. the testimony within offered er the (Alaska App.1985). The determina to con- 803(2) Other factors exception. only if clear appeal reversed on tion will be declarant, age of the sider include P.2d Agoney, 608 ly erroneous. State v. of the condition and mental physical (Alaska 1980); Lipscomb, 700 764 n. 5 declarant, of the event characteristics P.2d at statements. subject matter and the 803(2) applies, it find that In order to against ad cautioned Lipscomb, condi- that the declarant’s must mitting as excited utterances before, tion that Although, lapse time was such the state- as stated neither spontaneous, ment impul- excited or appearance disposi- time nor A.W.’s are product sive rather than the of reflection tive, the does evidence not show that A.W. and deliberation. engulfed” “emotionally the situa- tion, inferentially (citations either from the time omitted). F.2d at 86 circumstances, actually from the state- appears relatively It to us that a ments of the witnesses. See Deloso v. long period elapsed of time between the Md.App. 376 A.2d supposedly gave incident that rise (1977). Nothing witnesses’ testimo- excited condition and A.W.’s out-of-court ny powers indicates that A.W.’s normal Gary statement. Sluka testified that the reflection and conscious deliberation were kicking incident occurred about 2:00-2:30 suspended. Agoney, 608 P.2d at 764. p.m. and he and Watts took A.W. We therefore conclude that the trial court babysitter's p.m. between 5:00-5:30 in admitting erred concern- babysitter’s daughter, Wiess, Eliana ing A.W.’s out-of-court statements.2 began asking testified she A.W. what happened somewhere between 6:00 and p.m. Shippey 7:00 Rockson testified that A.W.’S STATEMENTS TO DR. began talking he arrived and to A.W. be MacFARLAND p.m. Therefore, 7:00

tween and 8:00 it According MacFarland, to Dr. A.W. told appears period approximately him injuries by that her head were caused four lapsed hours between the incident and her father who hit her a Ac- with shoe. A.W.’s out-of-court statements. Torres Cf. State, cording MacFarland, to A.W. 1974) v. also stated 793 (out-of-court parents spontaneous statement that both her had hit her with found their hands, only because five ten elapsed to minutes and that her father had hit her with statement); between incident and Alston v. a belt. States, (D.C. United A.2d Sluka concedes that of much what A.W. App.1983) (“several peaceful hours” be told Dr. MacFarland was admissible under statement, tween offense and under the however, 803(4); Evidence Rule he con- circumstances,

totality prevented of the a tends that A.W.’s statements identifying finding of spontaneity sincerity). Sluka as A.W.’s assailant were inadmissi- testimony From the it does not state, hand, ble. The on other contends A.W. was “under the stress excitement identifying rea- statements were by caused or event condition.” sonably pertinent diagnosis to and treat- 803(2). A.R.E. ment, and therefore were admissible. Additionally, A.W. made her out-of-court 803(4)provides: Rule response statements in questioning. to Eli- Statements Purposes Medical ana Wiess described A.W.’s behavior as for of Statements fine_ “Cj]ust Diagnosis or Treatment. happy She was ... al- though quiet.” purposes diagnosis made for Ms. Wiess also medical testified or describing A.W. was not even interested treatment and his- in talk- medical ing, tory, just playing past or or present symptoms, pain, with her toys. Shippey sensations, Rockson testified that or inception general or the or “very aloof” but that she was not character the cause or external source crying screaming. pertinent thereof insofar reasonably as reaching In particularly Shell, this decision we are supra. United States v. Iron by testify influenced fact that A.W. did not note that in the Iron Shell case there was some at trial and no was made to eyes that the victim's were still red Const, VI; unavailability. See U.S. amend. crying up Alas- from and that her hair was messed Const, 11; ka Lipscomb addition, art 1 § v. from assault. we note that in (Alaska App.1985). urging 1308 n. 10 Iron Shell the victim at testified the trial. See conclusion, us to Shell, reach a different the state cites Iron F.2d diagnosis to or treatment admissi- eral cause of the disease or injury. All [are types three are they admissible where are ble.] “reasonably pertinent diagnosis or treat- 808(4) The commentary to Rule notes: Shell, ment.” Iron 633 F.2d at 83. How- jurisdictions Even those few ever, concerning identity of' away generally have shied admit seldom, ever, the assailant are if sufficient- ting present statements of condition have ly diagnosis related to or treatment physician allowed them if made to a 84; make them admissible. Id. at see also purposes diagnosis and treatment Nick, United 604 F.2d States patient’s strong view of the motivation to (8th Cir.1979). The Iron recog- Shell court guarantee be truthful. The same 803(4): nized the dual rationale of Rule trustworthiness extends to statements of Statements made to facilitate diag- medical past history, conditions and medical likely nosis and treatment are to be truth- purposes diagnosis made for or treat ful and reliable because declarants are un- ment. It also extends to statements as likely to fabricate their where own health causation, reasonably pertinent wellbeing stake; is at and a fact reli- purposes, same in accord with the cur enough able diagno- to serve as a basis for trend, rent Shell Oil v. Industrial Co. sis and enough treatment is also reliable Commission, 590], Ill.2d 119 N.E.2d [2 escape hearsay proscription. Accordingly, (Ill.1954); Jersey New Evidence Rule adopted two-part flowing test 63(12)(c). Statements as to would fault from the rationale: ordinarily qualify under this latter Thus, language. patient’s is the declarant’s consist- statement motive [F]irst purpose rule; ent that he was struck an automobile with the second, qualify would it physician but not his statement that reasonable for the through light. rely diagnosis the car was driven a red the information [Emphasis and treatment. added.] Shell, Commentary, Rules of Evidence at 232. Iron 633 F.2d at 84. 803(4) agree types

Rule admits three of We with Sluka that the state (1) (2) history, past or ments in which A.W. identified him as the statements: medical 803(4).3 sensations, (3) gen- inadmissible under present inception and assailant were petent testify. cites Goldade v. 674 P.2d 721 to Id. at In state 723. that case it was cert, — U.S.-, denied, clear that (Wyo.1983), the victim was unavailable. We are 104 S.Ct. (1984) heavily case the fact influenced in the instant urging in us to 82 L.Ed.2d 844 and there Goldade, were admitted that A.W.’sstatements In the court reach a different result. unavailability. 803(4) was no as to Wyoming Evidence relied on Rule of addition, In we note the recent Rule of Evidence decision of the which is similar to the Alaska Eighth Renville, Circuit in 803(4). United States statute The court also noted a state (8th Cir.1985). F.2d 430 required any person court in who had reasonable Renville which language dicussed the in suspect report Iron Shell child abuse to such that a de- cause to relating clarant’s statements identity to protection enforcement the of abuse to a child or law responsible the injuries individual for the agency. AS Id. at 725. This statute is similar to would pertinent seldom be diagnosis. to requires "practitioners treatment or of the 47.17.020 which Renville, Shell, (citing 779 F.2d at 436 healing report suspected to Iron to child abuse arts" 84). that, F.2d at recognized The Renville court Department Social Services. the of Health and necessity due to Goldade, treating the recognized general psychological of the the court the In abuse, component of attributing phy- child are not 803(4).” statements to a "statements fault rule that during sician an examination that Rule the abuser is under rules identical to admissible However, member of the victim’s immediate the Goldade court fash- household Id. at 725. reasonably pertinent are to special based treatment because rule for child abuse cases ioned a physician Goldade, the must be strong attentive to policy. was a the emotional In there on state psychological injuries and interpreting accompany which questioning policy the of dissent Renville, the crime of child abuse. manner in a 779 F.2d at rules in a different the evidence However, (emphasis original). do not have to the case. child abuse .we court went on to state that in adopt order to directly the Goldade meet the decide whether to two-part Shell, test set forth in Iron reasoning Goldade the declar- case. We note that this response ant’s judge response must be made in to an in which the trial involved a court trial inquiry alleged important determined victim was incom- where the to identification identity any to assailant's than other CONFRONTATION CLAUSE the evidence, except the defendant’s confes- right his Sluka contends that of confron- sion; (6) contemporaneous the statement the tation denied when court allowed testimony probative more than the the of the various witnesses as given would later child have months A.W., to the out-of-court statements of trial; (7) justice and interests of were the identifying Sluka as A.W.’s assailant.4 The by admitting the served child’s declaration although state it contends that did young appreci- the child too because to show that A.W. was unavailable at the time implications of ate the the sexual assault. trial, sufficiently of her statements were Additionally, court the Id. the found state- satisfy to the reliable confrontation clause.5 trustworthy ment because the defendant arguing In that the admission of A.W.’s crime, to opportunity had the commit the did not violate the confrontation the child knew the defendant so he was not clause, state the relies United States v. identity, to his likely mistake Nick, (9th Cir.1979). F.2d mother, reported child’s who the child’s Nick, the trial court admitted a out- child’s statement, unlikely faulty have of-court statements identified de- recollection child’s seven-word state- as the assailant fendant child’s ment. Id. sexually that the defendant indicated had However, there differences between are assaulted the child. The court held Nick, present and the case. Nick admission the statements did not violate held the child’s out-of-court declara- the confrontation because clause the child’s were under tions admissible Evidence significant guarantees had statement 803(2). 803(4) Rules Id. at Oth- making trustworthiness. at 1204. In Id. recognized finding er decisions have that a finding this the court relied on the follow- admissibility an accepted excep- under ing (1) factors: the child’s statement was tion rule reliabil- establishes directly responsive questioning his about Roberts, 56, 66, ity. See Ohio v. upset condition; (2) the statement was experiencing made still while child was (1980). pain assault; (3) the statement’s terminology ring verity childish had the It does not to us that entirely appropriate and was allegedly a child statements which A.W. made (4) years; physical tender reliability evidence corrobo- meet sufficient statement; rated the child’s objection. the state- Certainly confrontation clause probative by Sluka, ment was material and more the fact that she was kicked treatment, diagnosis and enough and the mani- been broad to invoke the victim confrontation understanding fests an importance objecting, to clause. Sluka stated that diagnosis medical yet and treatment. available to the and state Id. at 438. state refusing testify court held that the Iron Shell to test had been have her and was instead met through under the trying bring facts of the case and admission to in her "these Therefore, hearsay not an exceptions abuse of discretion. which don’t fit.” distinguishable this be we find case to distinguishable Renville is present from the State, 6, (Alaska Drumbarger v. 716 P.2d 14 n. 3 important aspects. case in two Initially, noth- 1986), App., where held that we the defendant ing present in the record reflects that A.W. preserved objec- not had a confrontation clause knew or understood that her statements iden- objected Drumbarger in tion. the trial to tifying important Sluka were to her treatment. only hearsay the child witness’s statements on Renville, See Secondly, 779 F.2d at 438. in grounds, but did not contend that the witness Renville the victim testified at trial and was fact, Drumbarger impliedly was available. subject to cross-examination. Id. at We 440. unavailability by arguing conceded witness’s again emphasize that the failure to show A.W. incompetent testify the witness at to major was unavailable is a influence in our grand jury proceedings. decision. right guaranteed 5. The of confrontation is a Const, 4. objection which Sluka made to the admis- by VI defendant the U.S. amend. and Const, appears sion of A.W.’s have us to Alaska art. 1 §

401 Roberts, otherwise, is undis- v. accidentally either 56, 448 2531, U.S. 100 S.Ct. puted. (1980) as we have discussed L.Ed.2d 597 that unavailability is opinion, earlier in this always demonstration requirement a can not be read too concerning made kicking, that A.W. broadly apply possible so as to to all hear- and statements which A.W. made which say exceptions; court unavailability found abuse, suggested pattern child do not requirement was not a in the admission of recognized hearsay to fall within co-conspirator’s statements). We conclude A.W.’s, Furthermore, given exceptions. age that because A.W.’s statements did not and the fact that her statements re- guarantees contain sufficient of trustwor- sponses questions, there is a risk that guaranteed thiness as by the United States Thus, subject suggestion. she would be and Alaska Constitutions and because A.W. Nick, unlike we do find that A.W.’s unavailable, was not shown to be Sluka guarantees statements carried sufficient right was denied his of confrontation. permit trustworthiness to their admissibili- ty showing without a of unavailability. HARMLESS ERROR Nick, Finally, appears in the court Lastly, the state contends that the admis- to have assumed the victim was una sion of hearsay statements, error, if testify vailable to young because of his was harmless. Since the error in this case Id. age. nothing 1202. There is in the involved right Sluka’s constitutional to con- present record to indicate that A.W. was frontation, we would have to find the error incompetent testify as a witness or was beyond “harmless a reasonable doubt.” otherwise unavailable. We decline to as Chapman California, v. 18, 24, sume A.W. was unavailable because of her 824, 828, 705, 87 S.Ct. 17 L.Ed.2d 710-11 youth. showing A unavailability key State, (1967); Bentley v. 706 P.2d 1193 finding to a that a defendant’s confronta (Alaska App.1985); State, Williamson v. rights have not been violated. See tion App.1984). Lipscomb v. 1308 n. (Alaska App.1985). We believe that A.W.’s state California Green, ments, including U.S. 90 S.Ct. the demonstrations of re (1970) (stating: peated kicking L.Ed.2d and the statements that good “there is parents reason to conclude both had hit her their with hands Confrontation Clause is belt, not violated ad and that Sluka had hit her with a mitting a declarant’s powerful impact out-of-court state could have had a on the ments, long testify as the declarant is jury reaching its verdict that had Sluka ing subject as a mtness and accordingly abused A.W. We refuse to full cross-examination” (emphasis beyond find that the error harmless effective added)). Inadi, But see United States v. doubt, reasonable conclude that — -, U.S. Sluka’s conviction must be reversed. We (1986) (holding affirm Watt’s Ohio language conviction.6 Only physical Sluka raised the and confronta- examination of A.W. We also fail to points appeal. tion Watts Sluka raise physical see how the results of a second exam- following issues: particularly proba- ination would have been photographs Admission of tive. We find no error. injuries: complete physical A.W.’s A.W.’s con- points, In addition to these Sluka raises these 31, clearly dition on December 1983 was rele- additional issues: vant, photographs and admission of the did (3)Grand jury: We conclude that the testi- 404(b). not violate A.R.E. We conclude that mony concerning A.W.’sstatements was inad- the trial court did not abuse its discretion in hearsay missible and was admitted in viola- finding probative photo- value of the 6(r). tion of Alaska R. Crim.P. graphs outweighed danger preju- of unfair presented, other evidence which the state ex- dice. A.R.E. 403. evidence, cluding clearly suf- (2) Failure a to obtain second medical ex- support ficient to the indictment. See Frink v. amination: We conclude that the defendants 154, State, (Alaska 1979). 597 P.2d We adequate steps did not take to obtain second a part AFFIRMED in

REVERSED

part.

SINGLETON, Judge, concur.

SINGLETON, concurring. Judge, affirming

I in the concur court’s decision and reversing conviction Ella Watts Gary regard Sluka. With conviction Sluka, I am satisfied his case

presents situation in which the confronta-

tion clause state and federal consti- requires

tutions1

unavailable, prerequisite as a to the admis-

sibility of out-of-court statements.2 I objections

am also satisfied that Sluka’s

sufficiently focused the trial court’s atten- unavailability pre-

tion on the issue of issue for

serve that consideration in this no

court. Since state made effort to unavailable,

show that A.W. was we must my view, It is unnecessary,

reverse. hearsay exceptions

discuss properly

would be relevant if

found unavailable. SMITH, Appellant,

Arthur Alaska, Appellee.

STATE

No. A-559. Appeals

Court of of Alaska.

April Const, Const, VI; refusing t, conclude court did not err in U.S. amend. Alaska art. quash the indictment. § 11. judgment acquittal: Motion for We the trial refusing conclude court did not err in Roberts, 2. Ohio v. grant judgment Sluka’s motion for of ac- (1980). Cf. State, quittal. See Deal v. Stores v. (Alaska App.1983). 1980) (discussing confrontation but clause de- reversal, Because our find it unneces- ciding ground). case on alternate sary to the other reach issues which Sluka rais- es.

Case Details

Case Name: Sluka v. State

Court Name: Court of Appeals of Alaska

Date Published: Apr 11, 1986

Citation: 717 P.2d 394

Docket Number: A-763, A-834

Court Abbreviation: Alaska Ct. App.