Garner v. State

711 P.2d 1191, 1986 Alas. App. LEXIS 205

• Court: Court of Appeals of Alaska
• Decided: January 3, 1986
• Docket: A-731
• Status: Published

Opinions

OPINION

COATS, Judge.

Douglas Garner was convicted following a jury trial, of manslaughter, AS 11.41.120, for causing the death of eighteen-month-old Justin Pahang on September 29, 1983. Justin Pahang was the son of Linda Miller and Garner was Miller’s live-in boy friend.

On September 27, 1983, Justin was sick and Garner stayed home with him while Miller went to work. The facts presented at trial establish that Justin died from injuries, the result of child abuse, which were inflicted on September 27, 1983. Only two people could have inflicted Justin’s injuries that day: Garner or J.H., the next door neighbor in the apartment building. J.H. had watched Justin for part of the day on September 27. At trial, Judge Schulz admitted the following evidence over Garner’s objection:

1. A neighbor in an apartment adjoining the Miller-Garner apartment, Toy Wilson, testified that approximately ten days before the injuries which led to Justin’s death were inflicted, she heard noises which might have indicated a child was being beaten coming from the Miller-Garner apartment. In particular Wilson testified, “I heard what sounded like a male voice telling the child, ‘Now, this will teach you,’ or, ‘Here, don’t do that,’ ” interspersed with banging and crying.

2. A worker from Justin’s day-care center testified that four months prior to Justin’s death, Justin would raise his arms in a protective posture when she approached him. She also testified Justin did not want to go with Garner when he picked Justin up from the center. Finally, the worker testified that in the middle of July or in early August, Justin “had bruises on his forehead and scratches on the sides of his face, and then light red bruises across the back of his neck.”

3. Edward Allen testified that Garner had “verbally abused” Justin.

4. Linda Miller, Justin’s mother, testified that in the months before Justin's death, she had noticed bruises on Justin and that he appeared to be afraid of Garner.

Garner first argues that trial Judge Thomas E. Schulz erred in admitting this evidence which tended to show that Garner had abused Justin on occasions prior to September 27, 1983.

Alaska Rule of Evidence 404(b) provides:

Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Alaska Rule of Evidence 403 provides:

Although relevant, evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

In Lerchenstein v. State, 697 P.2d 312, 315-16 (Alaska App.1985) petition for hearing granted, (Alaska, June 25, 1985), we discussed the interelationship of A.R.E. 403 and 404(b):

The exclusionary provision of Evidence Rule 404(b) represents the “presumption in our law that the prejudicial effect of introducing a prior crime outweighs what probative value may exist with regard to propensity. No case by case balancing is permitted.” Oksoktaruk v. State, 611 P.2d 521, 524 (Alaska 1980). When, however, a prior bad act is relevant to a material fact other than propensity, the court may admit the evidence if an Evidence Rule 403 balancing shows the evidence to be more probative than prejudicial. [Footnote omitted]. In making this balance, the Alaska Supreme Court has cautioned that “[i]f prior crimes were found admissible whenever offered to prove a fact classified as material to the prosecution’s case, ‘the underlying policy of protecting the accused against unfair prejudice ... [would] evaporate through the interstices of the classification.’ ” Oksoktaruk, 611 P.2d at 524, quoting E. Cleary, McCormick on Evidence § 190, at 453 (2d ed. 1972). The trial court’s inquiry, then, is two-fold. First, the court must determine that the evidence sought to be admitted has relevance apart from propensity. Second, the court must determine that the nonpro-pensity relevance outweighs the presumed highly prejudicial impact of the evidence. [Citation omitted.] If there is no genuine nonpropensity relevance, the balancing step is never reached.

Applying the standards which we set forth in Lerchenstein, we conclude that Judge Schulz did not abuse his discretion in admitting the evidence which tended to indicate that Garner had abused Justin on prior occasions.

First, the central issue in this case was identity: whether Justin died from injuries which were inflicted by Garner or from injuries inflicted by J.H. The evidence indicating prior child abuse by Garner served to identify Garner as the person who had abused Justin. Therefore, there was a legitimate, non-propensity reason to admit the evidence.¹

Second, the evidence in question all related to incidents which involved Justin, and occurred close in time to Justin’s death. See Lerchenstein, 697 P.2d at 319. We also note that Judge Schulz gave the jury a cautionary instruction regarding the use of the prior incidents. See Roth v. State, 626 P.2d 583, 585 (Alaska App.1981). It appears to us that Judge Schulz could properly determine that the probative value of the evidence outweighed the danger of unfair prejudice. We find no error.

Garner next contends that Judge Schulz erred in refusing to allow him to present evidence that J.H. had abused her own child. Garner wanted to introduce this evidence in order to strengthen his contention that J.H. was the person who abused Justin and caused his fatal injuries. Garner made an offer of proof that he could produce at least two witnesses who would testify that they had observed J.H. abuse her own child to the point where they became concerned for the child’s safety. The witnesses would purportedly have testified that when J.H.’s child would cry, J.H. would lose control and would, on occasion, violently shake or hit the child. One of the witnesses was allegedly concerned enough for the child’s safety to take J.H.’s child away from J.H. for a short time.

Judge Schulz ruled that Garner could cross-examine J.H. about these alleged incidents of child abuse, but refused to allow the testimony of the witnesses. In reaching his conclusion, Judge Schulz relied in part on the fact that the alleged incidents involved J.H.’s abuse of her own child, not Justin. Judge Schulz also relied on the fact that J.H. had allegedly abused her child when the child was crying; there was no evidence that Justin had cried while J.H. was watching him.

On cross-examination J.H. denied ever shaking her daughter so violently that the daughter’s physical safety was threatened or that anyone had ever taken custody of her daughter after an incident of abuse. However, Garner was able to introduce testimony that the police had investigated reports that J.H. had abused her daughter.

Like evidence of Garner’s previous misconduct, admission of evidence of J.H.’s alleged abuse of her daughter is governed by Evidence Rules 404(b) and 403. Again, we are to reverse .the ruling of the trial judge only if we are convinced that he has abused his discretion in refusing to admit the evidence. Eben v. State, 599 P.2d 700, 710 (Alaska 1979). However,

[t]he right of a defendant to present his own witnesses to establish a defense is a fundamental element of due process of law. [Citation omitted.]

While the right to call and examine witnesses is not absolute,

and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process ... its denial or significant diminution calls into question the ultimate “ ‘integrity of the fact-finding process’ ” and requires that the competing interests be closely examined.

Smaker v. State, 695 P.2d 238, 240 (Alaska App.1985), (quoting Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 1045, 35 L.Ed.2d 297, 309 (1973), quoting Berger v. California, 393 U.S. 314, 315, 89 S.Ct. 540, 541, 21 L.Ed.2d 508 (1969)).

In Keith v. State, 612 P.2d 977, 981-84 (Alaska 1980), the supreme court emphasized the importance of the defendant’s right to fully present his defense. The court held that the trial court erred in excluding from evidence parts of a journal written by the person who Keith was charged with murdering. Keith wanted to introduce the journal to attempt to show the victim’s “mental instability, paranoia, hatred of women, and ... violent nature.” Id. at 983. Keith wanted to show these character traits to support his testimony that he acted in self defense. The court stated:

The excerpts from the journal which Keith sought to admit do clearly portray the character traits mentioned above, and its probative value is such that it outweighs any concern of prejudice, confusion or waste of time. Here Keith was on trial for murder, and there were no witnesses other than Keith to the immediate events preceding the shooting. In such circumstances, Keith was entitled to present his version of the events and evidence supporting it in as full a manner as possible.

Id. at 984 (emphasis added).

In Garner’s trial the issues were tightly-focused. Justin Pahang died from injuries which were the result of child abuse, and either Garner or J.H. inflicted the injuries. There was no question that J.H. had the opportunity to inflict the injuries since she had been alone with Justin. James v. State, 671 P.2d 885, 892-94 (Alaska App.1983), rev’d on other grounds, 698 P.2d 1161 (Alaska, 1985); Larson v. State, 656 P.2d 571, 573-75 (Alaska App.1982).

Under these circumstances it was particularly critical for Garner’s defense to present evidence which suggested that J.H., not Garner, had inflicted the injuries which killed Justin. We agree with Judge Schultz that the offered evidence had some weaknesses in terms of showing that J.H. had caused the injuries which killed Justin.² However, the jury could have reasoned that if J.H. had abused her own daughter, that she might have been the person who abused Justin. There was testimony that Justin’s brain injuries which caused his death were caused by violently shaking his head back and forth and a blow to the head. Prom the record it appears that Garner could persuasively argue that these injuries were consistent with reports of abuse which J.H. allegedly inflicted on her daughter. Finally, we know from the record that the alleged incidents of abuse had occurred close in time to Justin’s death since J.H.’s daughter was five months old at the time of Justin’s death. We conclude that, given the importance of this evidence to Garner’s defense, the trial court abused its discretion in not admitting the evidence.³

The state argues that the failure to admit the evidence of the alleged abuse by J.H. of her daughter was, if error, harmless. The state points out that Garner was able to cross-examine police officers about their investigation of this case. In doing so, Garner was able to cross-examine the police about the fact that they had received reports that J.H. had abused her daughter. However, under Judge Schulz’s ruling, Garner was unable to present any direct evidence of the alleged abuse by J.H. Judge Schulz instructed the jury that the reports of abuse by J.H. were admitted “only to give ... the background of the information that the officer had during the course of his investigation” and further that the reports were not admitted to establish the truth of what was said in the reports. This clearly should have limited the effectiveness of the evidence that J.H. had abused her daughter. Given the possibly critical nature of the evidence that J.H. had formerly abused her daughter, we con-elude that the error in refusing to admit the evidence was not harmless.⁴

The conviction is REVERSED.

SINGLETON, J., concurs and dissents.

1 . Garner cites Harvey v. State, 604 P.2d 586 (Alaska 1979). In that case the court stated:

Evidence of past abusive conduct is often available in child abuse cases and strictly speaking is never totally irrelevant. However, its relevance often exists only because it reflects on the propensity of a past offender to continue a pattern of child abuse. This is precisely the type of inference Rule 404(b) is intended to prevent. For this reason, evidence of past incidents of child abuse is generally held to be more prejudicial than probative. [Footnote omitted.]

In Harvey, the trial court admitted evidence that the defendant had previously severely spanked a child. This child was not the victim in the case. The supreme court held that the evidence was improperly admitted. In reversing, the supreme court pointed out that the defendant had admitted that he severly spanked the victim, and that the question in the case was whether the injuries inflicted by Harvey caused the victim’s death. The supreme court pointed out that, under the facts of the case, the evidence of the prior spanking could not properly have been admitted to establish Harvey’s identity as the assailant or the absence of mistake or accident.

2 . While Judge Schulz based his decision, in part, on the absence of evidence that Justin had cried while in J.H.’s care, and that J.H. had allegedly abused her daughter only when her daughter cried, we believe the jury could have reasoned that it was possible that Justin, a child of eighteen months, may have cried while in J.H.’s care.

3 . We believe that there is generally less danger of unfair prejudice under A.R.E. 403 in admitting prior bad acts or crimes of a person who is not a defendant than there is when the prior bad acts or crimes involve the defendant. The great danger of admitting evidence of prior bad acts or crimes of a defendant is that the jury may conclude that the defendant is a bad person and convict him based upon that evidence. Oksoktaruk v. State, 611 P.2d 521 (Alaska 1980). However, this danger does not exist where the person involved in the prior bad acts or crimes is not the person on trial. Therefore, some courts have specifically stated that there is a more liberal standard in allowing evidence of prior bad acts or crimes where the defendant is attempting to use this evidence to establish that someone else committed the crime. See United States v. Aboumoussallem, 726 F.2d 906, 910-12 (2nd Cir.1984); People v. Flowers, 644 P.2d 916, 918-20 (Colo.1982), appeal dismissed, 459 U.S. 803, 103 S.Ct. 25, 74 L.Ed.2d 41 (1982).

4 . Our disposition of this issue makes it unnecessary to reach the other issue which Garner raises.