Opinion
Court of Appeals No. A-11011 Court of Appeals No. A-11012 Trial Court No. 3DI-09-229 CR Trial Court No. 3DI-09-231 CR No. 6043
04-09-2014
ROBERT B. WONHOLA, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Doug Miller, Law Office of Douglas S. Miller, under contract with the Office of Public Advocacy, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Dillingham, Vanessa H. White, Judge.
Appearances: Doug Miller, Law Office of Douglas S. Miller, under contract with the Office of Public Advocacy, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Coats, Senior Judge.
Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).
Judge MANNHEIMER.
Robert B. Wonhola was convicted of sexually assaulting two women on the same night. Both victims testified at Wonhola's trial, but one of them — O.A. — testified that she had no memory of the sexual assault, nor did she have any memory of describing the assault to a police officer who interviewed her shortly after the attack.
After O.A. testified that she had no memory of these occurrences, the trial judge allowed the State to play a recording of O.A.'s out-of-court statement to the police officer. On appeal, Wonhola argues that the admission of O.A.'s out-of-court statement violated the hearsay rule, and also violated his right of confrontation under the Sixth Amendment.
The hearsay claim
Alaska Evidence Rule 801(d)(1)(A) declares that when a witness testifies at a trial or hearing, there is a hearsay exception for out-of-court statements that the witness has made if those statements are inconsistent with the witness's in-court testimony.
Evidence Rule 801(d)(1)(A) further specifies that the proponent of "prior inconsistent statement" evidence must generally lay a foundation for the proposed evidence by examining the witness in such a way as to give the witness an opportunity to explain or deny the out-of-court statement.
The witness in question, O.A., testified that she had been drinking and that she was "very intoxicated". O.A. remembered essentially nothing from the time that Wonhola first tried to enter the house until the next morning. [Tr. 152-54] (O.A. testified that she had one isolated memory from the incident: a memory of seeing Wonhola's reflection in a bathroom mirror.)
O.A. acknowledged that she had listened to a recording of her police statement "three [or] four times", but she testified that she still did not recall making this statement to the police, and she further testified that listening to this recording had not helped her to remember anything about the incident.
After receiving these answers from O.A., the prosecutor asked the trial judge for permission to play the recording of O.A.'s statement to the police. The recording was played for the jury, and the trial court record does not reflect any objection by the defense attorney.
(The record does show that, immediately after the prosecutor asked the judge for permission to play the audio recording, the defense attorney asked for a bench conference. According to the record, this bench conference lasted for one and a half minutes. But this bench conference is not transcribed, so this Court has no way of knowing (1) whether Wonhola's attorney objected to the playing of the audio recording, or (2) if so, on what grounds, or (3) what rulings the trial judge might have made, if any.)
Now, on appeal, Wonhola argues that the audio recording was barred by the hearsay rule because it did not qualify as a prior inconsistent statement.
Our first answer to this argument is that hearsay evidence is admissible in the absence of an objection. Because the record contains no objection from Wonhola's attorney, the recording was admissible even if O.A.'s out-of-court statement did not qualify for admission as a prior inconsistent statement under Evidence Rule 801(d)(1)(A).
See, e.g., Rusenstrom v. Rusenstrom, 981 P.2d 558, 560-61 (Alaska 1999); Christian v. State, 276 P.3d 479, 489 (Alaska App. 2012); Savely v. State, 180 P.3d 961, 962 (Alaska App. 2008); Douglas v. State, 166 P.3d 61, 85 (Alaska App. 2007).
Assuming for sake of argument that Wonhola's attorney did object to the admission of the recording, we will address Wonhola's specific claim.
Wonhola contends that O.A.'s statement to the police did not qualify as a "prior inconsistent statement" because a witness's statement describing a crime is not "inconsistent" with the witness's later testimony if they have absolutely no memory of the crime. But the rule under Alaska law is just the opposite: When a witness testifies that they have no memory of a criminal episode, the witness's earlier out-of-court statements describing that criminal episode are "prior inconsistent statements" for purposes of Evidence Rule 801(d)(1)(A).
See Richards v. State, 616 P.2d 870, 871 (Alaska 1980); Leopold v. State, 278 P.3d 286, 292 (Alaska App. 2012); Wassilie v. State, 57 P.3d 719, 723 (Alaska App. 2002). See also Van Hatten v. State, 666 P.2d 1047, 1051-52 (Alaska App. 1983) (upholding the admission of a witness's prior statement as a "prior inconsistent statement" after the witness — the defendant's stepdaughter — took the stand and falsely asserted that she had no memory of the events in question).
Next, Wonhola contends that the prosecutor's questions to O.A. (and O.A.'s answers to these questions) were insufficient to establish the foundation required by Evidence Rule 801(d)(1)(A) — because (according to Wonhola) the prosecutor did not examine O.A. in such a way as to give her the opportunity to explain her prior statements or to deny making them.
But the record shows that the prosecutor repeatedly asked O.A. if she had any recollection of the events in question, and that O.A. repeatedly denied having any memory of the assault (aside from the isolated memory of seeing Wonhola's face reflected in the mirror).
O.A. acknowledged that she had even listened several times to the recording of her interview with the police, but she asserted that she still had no recollection of the events in question — nor even a recollection of being interviewed by the police. O.A. explained that she was very intoxicated, and that she had no memory of anything from the time Wonhola first tried to come into the house until she woke up the next morning.
Given this record, the State established the required foundation for introducing O.A.'s police interview as a "prior inconsistent statement" under Evidence Rule 801(d)(1)(A).
The confrontation claim
Wonhola argues in the alternative that even if O.A.'s police interview was admissible under the hearsay exception codified in Evidence Rule 801(d)(1)(A), the admission of this evidence nevertheless violated Wonhola's Sixth Amendment right to confront the witnesses against him.
As we explained in the preceding section of this opinion, there is nothing in the record to show that Wonhola's attorney raised a confrontation clause objection to this evidence. Thus, Wonhola must show that the trial judge committed plain error under the Sixth Amendment by allowing the State to introduce this evidence.
We conclude that the admission of this evidence did not constitute error at all (much less plain error) under the confrontation clause.
O.A.'s statement to the police was played for the jury while O.A. was on the stand, during her direct examination by the prosecutor. Thus, O.A. was immediately available for cross-examination about the contents of her out-of-court statement (as well as cross-examination about everything she said during her direct examination).
Wonhola argues that, even though O.A. was on the stand, she was not really "available" for cross-examination because she essentially had no memory of the events discussed in her prior statement to the police. Wonhola asserts that a witness's "mere presence at trial" is insufficient to satisfy the demands of the confrontation clause when the witness "lacks all memory of both [their] previous statement and the events underlying the criminal charge".
Wonhola concedes that the United States Supreme Court apparently rejected this argument in United States v. Owens, 484 U.S. 554, 108 S.Ct. 838, 98 L.Ed.2d 951 (1988). In Owens, the Supreme Court held that the confrontation clause was not violated by the admission of an out-of-court identification made by the victim of an assault who, when called as a witness at trial, was unable to remember the occurrence due to brain injury. 484 U.S. at 559, 108 S.Ct. at 842.
Wonhola further concedes that, even after the Supreme Court reinterpreted the Sixth Amendment's confrontation clause in Crawford v. Washington, the great weight of authority continues to recognize Owens as the correct answer to Wonhola's argument.
541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
(This Court discussed several of the pertinent federal and state cases in our opinion in Vaska v. State, 74 P.3d 225, 229 n. 29 (Alaska App. 2003). That footnote from Vaska is reproduced here. )
See, e.g., Bugh v. Mitchell, 329 F.3d 496, 501-11 (6th Cir. 2003) (concluding that the trial court did not err in admitting a four-year-old child victim's hearsay statements because she was subject to cross-examination regarding her inability to remember and her inarticulate responses); United States v. McHorse, 179 F.3d 889, 899-900 (10th Cir. 1999) (finding no Confrontation Clause problem where a child victim testified at trial but was unable to recall the defendant's sexual abuse and the defendant chose not to cross-examine the witness); United States v. Milton, 8 F.3d 39, 47 (D.C. Cir. 1993) (finding no Confrontation Clause violation and upholding admission of prior statements under Federal Evidence Rule 801(d)(1)(A) when the witness testified at trial and was subject to cross-examination but could not remember events or prior statements); United States v. Martindale, 36 M.J. 870, 874-76 (Navy-Marine Corps Crim. App. 1993) (holding that a twelve-year-old child who testified he could not remember the sexual abuse or his prior statement to investigators, but was subject to cross-examination, created no Confrontation Clause problem); Tucker v. State, 564 A.2d 1110, 1113, 1123-24 (Del. 1989) (concluding that because the child abuse victim was available for cross-examination, the victim's lack of memory did not violate the Confrontation Clause); London v. State, 549 S.E.2d 394, 396-97 (Ga. 2001) (holding that a four-year-old child witness's evasive, forgetful, and unresponsive answers at trial made her prior inconsistent statements admissible and that there was no Confrontation Clause problem because the defendant had an opportunity for cross-examination); State v. Jenkins, 23 P.3d 201, 203, 204-06 (Mont. 2001) (when a witness, who suffered from Alzheimer's, testified at trial that she had no memory of event and was subject to cross-examination, the court held that the State properly introduced her prior inconsistent statements under Montana Evidence Rule 801(d)(1)(A) and found no Confrontation Clause violation under Owens); see also Commonwealth v. Amirault, 535 N.E.2d 193, 202 (Mass. 1989) (declining to address Owens but concluding that a child victim's lack of memory presented no Confrontation Clause problem).
But cf. United States v. Spotted War Bonnet, 933 F.2d 1471, 147274 (8th Cir. 1991) (explaining that "simply putting a child on the stand, regardless of her mental maturity, is not sufficient to eliminate all Confrontation Clause concerns[,]" but concluding that because the two child witnesses at issue were competent, testified in open court, and were crossexamined by defense counsel, the Confrontation Clause was not violated); State v. Canady, 911 P.2d 104, 11316 (Haw. App. 1996) (holding that because Hawai'i Evidence Rule 802.1(1) requires that the "declarant [be] subject to crossexamination concerning the subject matter of the declarant's statement", Owens was distinguishable and that Rule 802.1(1) requires that "the witness be subject to crossexamination about the subject matter of the prior statement, that is, that the witness be capable of testifying substantively about the event, allowing the trier of fact to meaningfully compare the prior version of the event with the version recounted at trial ... before the statement would be admissible as substantive evidence of the matters stated therein"); State v. Rohrich, 939 P.2d 697, 698 (Wash. 1997) (concluding that under Washington's child hearsay statute, the Confrontation Clause is violated when a child is called to testify at trial but "is not asked and does not answer any questions relating to ... the acts of sexual contact alleged in the hearsay"); David Greenwald, "The Forgetful Witness", 60 U. Chi. L. Rev. 167, 18687 (1993) (criticizing the Owens decision and arguing that for Rule 801(d) purposes, the witness should have some memory of making the prior statement); Robert P. Mosteller, "Remaking Confrontation Clause and Hearsay Doctrine Under the Challenge of Child Sexual Abuse Prosecutions", 1993 U. Ill. L. Rev. 691, 72730 (1993) (critiquing the Owens decision, its treatment of the Confrontation Clause, and its implication to the hearsay rules).
Wonhola devotes approximately one-third of his brief to a detailed presentation of various reasons why one might conclude that this weight of authority is wrong. In essence, Wonhola contends that, because of the decision in Crawford, the decision in Owens must be reconsidered, and its holding must be limited.
But as we have explained, Wonhola presents this confrontation clause argument as a claim of plain error. It is obviously not "plain error" for a trial judge to make a ruling that comports with the current weight of authority.
Moreover, Wonhola's argument hinges on asking this Court to answer the question of whether the United States Supreme Court should now limit the holding of Owens in light of the interpretation of the confrontation clause that the court adopted in Crawford. The case law strongly suggests that we are not at liberty to do that. The United States Supreme Court has cautioned lower courts that they should not deviate from Supreme Court precedent, even when the Supreme Court's later decisions seemingly invalidate that precedent or call it into question:
[I]f a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, [a lower court] should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.Agostini v. Felton, 521 U.S. 203, 237; 117 S.Ct. 1997, 2017; 138 L.Ed.2d 391 (1997).
Quoting Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484; 109 S.Ct. 1917, 1921-22; 104 L.Ed.2d 526 (1989). See United States v. Rodriguez-Montelongo, 263 F.3d 429, 434 (5th Cir. 2001) (declaring that it is a court of appeals' duty "to apply the law as it exists," and that it is solely the prerogative of the Supreme Court to overrule its precedent if it chooses); United States v. Davis, 260 F.3d 965, 969 (8th Cir. 2001) ("It is our role to apply Supreme Court precedent as it stands, and not as it may develop."); United States v. Losoya-Mancias, 332 F.Supp.2d 1261, 1265 (D. N.D. 2004); United States v. Gebele, 117 F.Supp.2d 540, 548-49 (W.D. Va. 2000) (the fact that a majority of the Supreme Court may have expressed doubt as to the validity of the prior conviction exception does not affect its status as controlling law; a lower court cannot ignore Supreme Court precedent by simply "counting Justices" or "speculating about what the Supreme Court might do in the future"); People v. Rivera, 833 N.E.2d 194, 198; 800 N.Y.S.2d 51 (N.Y. 2005) (noting that even when recent decisions have cast doubt on the continuing validity of a Supreme Court decision, it is solely the Supreme Court's prerogative to overrule its own decisions, and thus other courts are bound to follow the law as it currently exists).
--------
For these reasons, we conclude that Wonhola has failed to demonstrate that the trial judge's ruling amounted to plain error under the confrontation clause.
Conclusion
The judgement of the superior court is AFFIRMED.