Opinion
Court of Appeals No. A-9688.
September 24, 2008.
Appeal from the Superior Court, Third Judicial District, Anchorage, John Suddock, Judge, Trial Court No. 3AN-04-5626 CR.
Sharon Barr, Assistant Public Defender, and Q uinlan Steiner, Public Defender, Anchorage, for the A ppellant. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Nathaniel Vickers was convicted, after a jury trial, of assault in the first degree for throwing rubbing alcohol on his wife, Annette Y. Jamestown, and lighting her on fire. He was also convicted of misconduct involving a controlled substance in the fourth degree for being in possession of 18.3 grams of crack cocaine.
AS 11.41.200(a)(1), (2).
AS 11.71.040(a)(3)(A).
At the time of the incident, Jamestown told several people that Vickers lit her on fire. But at trial she recanted, claiming she did not remember anything and blaming her initial allegations on her use of crack cocaine. After Jamestown testified, the State called Dr. Sharon K. Araji to testify about the general dynamics of domestic violence, including the phenomenon of victims recanting.
Vickers argues that Superior Court Judge John Suddock erred in allowing Dr. Araji to testify w itho ut conducting a D aubert-Coon hearing at which the State w ould have to prove the scientific reliability and relevance of Dr. Araji's conclusions. He also argues that Dr. Araji's testimony constituted improper profile testimony. But we conclude that Dr. Araji's testimony was admissible to provide the jury with background information explaining why a victim of domestic violence might recant an earlier report of domestic violence. W e conclude that the State was not required to establish the scientific reliability and relevance of Dr. Araji's testimony in a Daubert-Coon hearing.
Vickers also argues that Judge Suddock erred in allowing the State to introduce evidence that, on prior occasions, Vickers had threatened and assaulted Jamestown. But we conclude that Judge Suddock did not abuse his discretion in determining that the evidence was admissible to demonstrate Vickers's relationship with Jamestown.
Judge Suddock sentenced Vickers to 12 years with 4 years suspended for the assault conviction and 3 years with 2 years suspended for the controlled substance conviction, to be served consecutively. The composite term, therefore, was 15 years with 6 years suspended — 9 years to serve. Vickers argues that this sentence was clearly mistaken. We disagree and affirm the sentence.
Why the testimony of Dr. Sharon Araji was not subject to the Daubert-Coon test for the admission of scientific evidence
Vickers's defense at trial was that Jamestown's accusation of assault was false. In support of that position, Vickers argued that Jamestown's accusation in this case was untrustworthy because, on other occasions when she was high on cocaine, she had falsely accused Vickers of hurting her.
When the State called Jamestown as a witness in its case-in-chief, her testimony supported Vickers's defense. Jamestown testified that she had been using crack cocaine for three or four days straight immediately prior to when she caught on fire, and she further testified that she had no memory of how she caught on fire. Jamestown declared that she did not remember accusing Vickers of attacking her and setting her on fire, but that if she had said that it would have been a lie. She explained this accusation by stating that she might have said it because she became paranoid when she consumed crack cocaine, and this led her to say and do things that she would not otherwise say or do.
In response to Jamestown's testimony, the State called Dr. Araji, a sociology professor at the University of Alaska Anchorage. Dr. Araji is the chair of the U.A.A. sociology department. Sh e teach es a cou rse entitled "Violence in Intimate Relationships," and her work is published in various books and periodicals, including a peer-reviewed journal, Violence Against Women.
During her testimony, Dr. Araji described the "cycle of violence" found in abusive relationships, and she stated that an "alcohol or drug component" often plays a part in that cycle of violence. She stated that, according to an Anchorage study, fifty percent of domestic violence cases involve drugs and/or alcohol, and she further stated that other studies suggest that the percentage is actually much higher.
Dr. Araji then testified to the many reasons that a man or woman who has been physically abused by an intimate partner may not leave the violent domestic relationship. And she explained the potential pressures that can lead a victim of domestic violence to recant an accusation of assault or abuse.
On appeal, Vickers raises several objections to the admission of this testimony. His first argument is that Judge Suddock erred in not requiring the State to prove the scientific reliability and relevance of Dr. Araji's testimony under the Daubert-Coon test for scientific evidence. Vickers is wrong; no Daubert-Coon foundation was required for Dr. Araji's testimony.
See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993); State v. Coon, 974 P.2d 386 (Alaska 1999) (adopting the Daubert test as a matter of state law).
Under federal law, all expert testimony is subject to the Daubert test. But in M arron v. Strom stad, the Alaska Supreme Court rejected the h olding of Kum ho Tire and instead limited the Daubert-Coon rule to "scientific knowledge" — i.e., "knowledge derived by the scientific method" — as opposed to expert testimony based on "other technical or specialized knowledge."
See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147, 119 S. Ct. 1167, 1174, 143 L. Ed. 2d 238 (1999).
123 P.3d 992 (Alaska 2005).
Id. at 1004 (quoting Daubert, 509 U.S. at 590, 113 S. Ct. at 2795).
Id. at 1006.
Dr. Araji's testimony was not based on "scientific knowledge" as defined in D aubert and Marron. Rather, her testimony consisted of "other tech nical or specialized knowledge" based on her studies and her professional experience — in particular, Dr. Araji's research and her familiarity with sociological research conducted by others in her field into the behavior of people who were reported to be victims of domestic violence, and the patterns that emerge from this research.
It is true that the Marron opinion refers to the type of expert testimony not covered by the D aubert-Coon rule as "specialized knowledge derived only from experts' personal experience and intuition." But we do not interpret this phrasing to mean that expert testimony is exempted from the Daubert-Coon rule only if a witness's testimony is based on that particular witness's personal experience. Such a narrow interpretation of Marron would subject most testimony about liberal arts subjects ( e.g., history, anthropology, or sociology) to the Daubert-Coon test because an expert's knowledge of these fields is comprised primarily of information collected by others.
Id.
This is clearly not the result the Alaska Supreme Court was aiming for in Marron. Under this suggested interpretation, the supreme court would have ruled that a Daubert-Coon foundation was required to establish the admissibility of the testimony of the two experts challenged in Marron — when, in fact, the supreme court's decision was precisely the opposite ( i.e., no Daubert-Coon foundation was required).
Id. at 1008.
For these reasons, we conclude that Dr. Araji's testimony was admissible without a Daubert-Coon foundation. Why we conclude that Dr. Araji's testimony was not prohibited "profile evidence"
Both this court and the Alaska Supreme Court have previously held that the State cannot introduce expert testimon y abou t the behavior of victims of abuse or domestic violence for the purpose of suggesting that a particular person's claim of assault or abuse should be believed because that person fits the "profile" of a particular kind of victim. Rather, the State can rely on such expert testimony only to rebut defense claims that the behavior of the purported victim was seemingly inconsistent with a claim of assault or abuse.
L.C.H. v. T.S., 28 P.3d 915, 924-25 (A laska 2001); Russell v. State, 934 P.2d 1335, 1343 (Alaska App. 1997).
L.C.H., 28 P.3d at 924; Russell, 934 P.2d at 1343.
Here, Vickers asserts that Dr. Araji's testimony about the behavior of domestic assault victims was not admissible because Vickers never asserted that Jamestown acted in a way inconsistent with her claim of assault. But it was obvious from Vickers's opening statement at the beginning of the trial, as well as from Jamestown's testimony and Vickers's cross-examination of her, that Vickers was asserting that Jamestown's pre-trial accusation of assault was false — that Jamestown lied when she accused Vickers of setting her on fire, and that Jamestown's in-court recantation of that accusation should be believed.
The State was entitled to counter this defense by presenting Dr. Araji's explanation of the social dynamics of domestic violence and the behaviors that one might expect from victims of domestic violence.
Vickers also argues that Judge Suddock should have excluded Dr. Araji's testimony under Alaska Evidence Rule 403 on the ground that the probative value of this testimony was outweighed by its potential for unfair prejudice. But we conclude that Judge Suddock could properly determine that the probative value of Dr. Araji's testimony was significant, and that its potential for creating unfair prejudice ( i.e., the danger that the jury might use it for the prohibited "profile" purpose) could be forestalled through cross-examination and explanation.
In a related argument, Vickers contends that Dr. Araji improperly vouched for the State's theory of the case by offering statistical evidence tending to show that Jamestown's initial accusation was true and that her later recantation was false. Vickers relies on two problematic statements that Dr. Araji made during her testimony. Dr. Araji said one study indicated that "at least 50 percent of all victims minimize, deny, or recant at some point." Dr. Araji also stated: "There are studies by police officers . . . that indicate that if you want to know the true story, it's what the victims tell you within the first 24 or 48 hours of the event happening, rather than as time passes. . . ."
These assertions, taken at face value, appear to offer expert support for the proposition that, statistically speaking, an initial accusation of assault or abuse is more likely to be true than a later recantation. Interpreted in this manner, Dr. Araji's testimony was improper. But when we examine these isolated statements in the context of Dr. Araji's entire testimony, we conclude that these statements do not constitute reversible error.
Dr. Araji conceded that she had no direct knowledge of the facts of the case, nor did she know Jamestown. And, during cross-examination by Vickers's defense attorney, Dr. Araji clarified that she does not "look at [the] truth or falsity" of a victim's changing story. Dr. Araji further conceded that, even though she w as familiar w ith studies which showed that various victims of domestic violence recanted their accusations of assault, she was not aware of any studies that evaluated whether the initial accusation or the later recantation was more likely true.
Moreover, during closing arguments, the prosecutor made it clear that Dr. Araji's testimony was only background information about the dynamics of domestic violence, and that Dr. Araji had no knowledge of the particular facts of Vickers's case. The prosecutor expressly told the jurors that "the whole purpose of Dr. Araji's testimony isn't to . . . serve as a human lie detector [for] you; it's [only] to explain what happens in some domestic violence cases."
For these reasons, even if it was error for Dr. Araji to make the challenged comments, that error was rectified and does not require reversal of Vickers's conviction.
Why we conclude that Judge Suddock did not abuse his discretion in admitting evidence of Vickers's prior acts of domestic violence against Jamestown
Prior to trial, the State filed notice of its intent to introduce three instances of Vick e rs's a lleged prior acts of do mestic v io lence against Jamestow n under A laska Rule of Evidence 404(b)(1) and 404(b)(4). Only two of these instances are applicable to this appeal, as Vickers does not contest the admissibility of the third incident.
In the first incident, Vickers allegedly threatened Jamestown with a firearm at an unknown time in the early 1990s. Judge Suddock heard testimony, outside the presence of the jury, from Jamestown; her aunt, Constance Vierthaler; and her cousin, Laurie Lamp. Judge Suddock concluded that there was insufficient proof that Vickers had used a gun to threaten Jamestown, and that it would therefore be unduly prejudicial to allow the jury to hear evidence about the gun. But Judge Suddock concluded that the other facts about this incident were sufficiently confirmed and were significant to show the early stage of Vickers's relationship with Jamestown. He also concluded that evidence of this incident would be admissible to impeach Jamestown if she denied any prior abuse on the stand at trial and would be valid to show Vickers's propensity to act violently toward Jamestown under Evidence Rule 404(b)(4).
In the second incident, Vickers allegedly dowsed Jamestown's leg with rubbing alcohol and threatened to set her on fire. Jamestow n told her cousin and the police about this previous incident shortly after the assault that led to the current charge against Vickers. Judge Suddock concluded that the State had sufficiently strong evidence that this prior incident had occurred. Judge Suddock further concluded that the evidence was relevant not only to show the relationship between Vickers and Jamestown and how the current incident could have occurred, but also to show Vickers's propensity to use violence against Jamestown.
A laska Rule of Evidence 404(b)(1) prohibits the admission of "other crimes, wrongs, or acts . . . if the sole purpose for offering the evidence is to prove the character of a person in order to show that the person acted in conformity therewith." This rule "codifies the c om mo n-law doctrine forb idding the admission o f `prop ensity' evidence." Propensity evidence, in this context, means "evidence of a person's other bad acts whose sole relevance is to prove the person's character, so that the person's character can then be used as circumstantial evidence that the person acted true to character during the episode being litigated." Evidence Rule 404(b)(1) does allow, however, the admission of prior bad acts for "other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." In other words, "evidence of a person's prior misconduct is inadmissible unless it is probative of some disputed fact other than the person's general propensity to engage in similar misconduct." Even though evidence of other crimes is admissible under Evidence Rule 404(b)(1), it should not necessarily be admitted. It is still subject to exclusion under Evidence Rules 402 and 403. Rule 402 bars the admission of irrelevant evidence. Rule 403 allows a trial court judge to exclude relevant evidence "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."
Bingaman v. State, 76 P.3d 398, 403 (Alaska App. 2003).
Id. (citations omitted).
Jordan v. State, 895 P.2d 994, 999 (Alaska App. 1995).
Bingaman, 76 P.3d at 401.
Id.; Jordan, 895 P.2d at 999.
Under Rule 404(b)(1), "[e]vidence of a defendant's prior crimes is admissible to explain the relationship between two people." Specifically, "such evidence is relevant to explain why one person might fear another person or might submit to another person's will." Judge Suddock did not abuse his discretion in determining that the evidence of these two prior incidents was admissible under Evidence Rule 404 (b)(1) to demonstrate Vickers's relationship with Jamestown, that these incidents were sufficiently verified, and that the probative value of these incidents was outweighed by the danger of unfair prejudice.
Russell, 934 P.2d at 1341 (citing Braham v. State, 571 P.2d 631, 641 (Alaska 1977)).
Id. (citing Dulier v. State, 511 P.2d 1058, 1061 (Alaska 1973)).
In addition, Judge Suddock could properly determine that evidence of these incidents was admissible under Alaska Evidence Rule 404(b)(4). Rule 404(b)(4) states that "[i]n a prosecution for a crime involving domestic violence . . . evidence of other crimes involving domestic violence by the defendant against the same or another person . . . is admissible." The legislative history reflects that one of the legislature's motivations for passing such a law was to ensure that judges w ould not interpret Rule 404(b)(1) so strictly as to exclude evidence of a pattern of physical abuse. In Bingaman, although we expressed concern about the expansive scope of the wording of the new subsection, we concluded that Rule 404(b)(4) "was intended to exempt certain evidence from Rule 404 (b)(1)'s prohibition against propensity evidence . . . [and] authorize th e court to admit evidence of the defendant's other acts of domestic violence even though the sole relevance of those acts is to show that the defendant characteristically commits such acts." In other words, the jury may consider the defendant's character as circumstantial evidence that the defendant acted true to character during the current alleged offense.
Bingaman, 76 P.3d at 405-06 (citing Minutes, House Finance Committee hearing on CSHB 9, Section 18 (Feb. 18, 1997)).
Id. at 408.
Id.
In Bingaman, this court set forth several factors for a trial court to consider when deciding whether evidence should be admitted under Rule 404(b)(4), including the strength of the government's evidence that the defendant actually committed the other acts, the character trait that the other acts tend to prove, the relevance of that character trait, the government's need to offer the evidence to prove that trait, the amount of time required to litigate the other acts, and the likelihood that the jury will consider the case on improper grounds.
Id. at 415-16.
Judge Suddock carefully considered all of these factors and concluded that the evidence of these prior incidents was admissible under Evidence Rule 404(b)(4). We conclude that Judge Suddock did not abuse his discretion in reaching this conclusion. Why we conclude that Vickers's sentence was not clearly mistaken
Vickers was convicted of assault in the first degree, a class A felony, and misconduct involving a controlled substance in the fourth degree (possession of crack cocaine), a class C felony. The parties do not dispute that Vickers, as a first felony offender, was subject to a 5-year presumptive term and a 20-year maximum term for the assault. For the controlled substance conviction, Vickers faced no presumptive term and a 5-year maximum sentence. Because Vickers was a first felony offender and no presumptive term of imprisonment was specified for the controlled substance conviction, he could not be sentenced to a term exceeding the presumptive term for a second felony offender (2 years, in this case), unless an aggravating factor was found. The jury found one aggravating factor for each conviction: the assault was committed against a spouse or member of the social unit made up of those living together in the same dwelling, and the drug offense was among the most serious conduct included in the definition of the offense.
Former AS 12.55.125(c).
Former AS 12.55.125(e).
Former AS 12.55.125(e)(1).
Former AS 12.55.125(k)(2).
AS 12.55.155(c)(18)(A).
AS 12.55.155(c)(10).
Judge Suddock imposed a sentence of 12 years with 4 years suspended for the assault and 3 years with 2 years suspended for the drug conviction. He imposed these sentences consecutively. Therefore, Judge Suddock imposed a composite sentence of 15 years with 6 years suspended.
Vickers argues that this sentence is excessive. We disagree. In sentencing Vickers for the assault, Judge Suddock concluded that Vickers had engaged in acts of escalating domestic violence for twen ty years. He also noted that Vickers had a thirty-year history of drug abuse. He found that, in assaulting Jamestow n, Vickers intended "to inflict the most cruel, extreme form of pain on her that the mind of man can conceive." He described it as "an act of . . . savage brutality." He found that Vickers had poor prospects for rehabilitation. He found that, if Vickers was released from prison, he would be a danger to Jamestown and others. He described Vickers as "a dangerous man."
In sentencing Vickers on the drug offense, Judge Suddock noted that the State had not charged Vickers with being a drug dealer even though there was circumstantial evidence that Vickers was a drug dealer. Judge Suddock noted that the 18.3 grams of crack cocaine was a significant amount of cocaine that was more than a normal user would possess. He also noted that the State had shown that Vickers possessed a scale and a number of baggies, and that there was testimony about significant traffic coming to the residence that Vickers shared with Jamestown. Judge Suddock concluded that the evidence that Vickers had been significantly involved with cocaine for the past thirty years justified imposing a consecutive sentence.
We conclude that the sentence Judge Suddock imposed is supported by the record. The sentence is not clearly mistaken.
McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
The judgment of the superior court is AFFIRMED.