Opinion
Court of Appeals No. A-10883 Trial Court No. 3NA-10-08 CR No. 5936
04-10-2013
DAVID P. ALTO, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: John N. Page III, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Eric A. Ringsmuth, 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 precedent for any proposition of law.
MEMORANDUM OPINION
AND JUDGMENT
Appeal from the Superior Court, Third Judicial District, Dillingham, Fred Torrisi, Judge.
Appearances: John N. Page III, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Eric A. Ringsmuth, 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 Bolger, Supreme Court Justice.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
BOLGER, Supreme Court Justice.
David P. Alto appeals from his conviction of attempted murder, arguing that the trial judge erred on three evidentiary rulings. Alto argues that the investigating officer should not have been allowed to give his opinion that the complaining witness was the actual "victim" in this case; we conclude that the admission of this opinion was harmless error. Addressing Alto's other arguments, we conclude that the rule of completeness did not require the admission of Alto's entire police interview and that the evidence that Alto was angry about a domestic dispute was admissible to show his state of mind.
Background
David Alto, Travis Wassillie, and Travis's mother, Jeannie Blatchford, came to visit Travis's cousin, Fred Wassillie, and Fred's mother, Natalia Pallak. During this visit, Fred Wassillie was severely beaten in a back room and Fred shot Alto in the neck. As a result of this incident, Alto was eventually charged with attempted murder and several lesser-included offenses.
At Alto's trial, Fred Wassillie testified that, after Alto arrived, he asked if Fred had been beating Natalia. Fred answered, "no," but Alto immediately began hitting him. Then Alto encouraged Travis and his mother to join in, and they all began beating Fred. Fred asked Alto to stop beating him because he could not breathe through his nose, but Alto told Fred that Fred could not leave until he was dead. Fred managed to grab a rifle and shoot Alto in the neck, and then Fred escaped from the house.
In his defense, Alto testified that, after they arrived, Travis Wassillie got into an argument with Fred Wassillie. Alto told Fred and Travis to stop arguing, and asked Fred whether he had been hitting Natalia. Fred answered, "no." Alto left the back room, reluctant to interfere. But when he returned, Alto found Fred lying on the floor with Travis standing over him. Alto testified that, when he pulled Travis off Fred, Fred shot Alto in the neck with a rifle.
During Alto's cross-examination, the prosecutor asked whether Alto had argued with his wife earlier on the day of the assault, before he went to Fred Wassillie's house with Travis. Alto answered affirmatively. Alto's attorney then objected on relevance grounds, and the prosecutor responded that the evidence was relevant to show Alto's state of mind at the time of the assault. Judge Torrisi overruled Alto's objection.
The prosecutor then asked Alto whether it was true that Alto had told an officer that Fred Wassillie "was asking for it when we got there." Alto said that he did not remember what he had told the officer. The prosecutor asked to play a recording of this interview since Alto could not remember what he had said. Judge Torrisi replied, "[I]t seems to me you can play ... that as an admission whether ... he denies it or not."
Alto's attorney then requested that the court play the interview recording in its entirety based on the rule of completeness. But Alto's attorney did not play (or summarize) the recording for Judge Torrisi, and she did not argue that the entire recording ought to be played to rebut or clarify the portions that were offered by the prosecution. Judge Torrisi overruled the objection, and the prosecutor played two short portions of the recording.
In rebuttal, Travis's girlfriend testified that just before Alto and his companions left for Fred Wassillie's house, she heard Alto say that he wanted to get into a fight.
Alto was convicted of attempted murder, and he now appeals.
Discussion
Officer Harris's testimony that Fred Wassillie was the "actual victim" in this case was improper but the error was harmless.
As indicated above, Alto defended on the theory that Fred Wassillie was a victim of Travis but that Alto was also the victim of an assault by Fred Wassillie. At trial, the State offered the testimony of Officer Doug Harris of the Bristol Bay Borough Police Department. The prosecutor asked Harris, "In your investigation, initially it was reported that Travis Wassillie had said that Fred [Wassillie] had shot David [Alto]. At the conclusion of your investigation, who did you determine was the actual victim in this case?" Alto's attorney objected, but Superior Court Judge Fred Torrisi overruled the objection. Officer Harris answered that "the victim was Fred Wassillie." Judge Torrisi then interjected, "Okay, first, ultimately that's a jury question." Judge Torrisi did not give the jury any other instructions on this testimony, and Alto's attorney did not ask that Officer Harris's answer be struck.
In general, a witness should not be allowed to refer to a complaining witness as a "victim" when the question before the jury is whether that person was the victim of a crime. We have identified several factors that help determine whether a reference to the complaining witness as a "victim" was harmless error: (1) the number of times that the term "victim" was used, (2) whether other prejudicial errors or misconduct occurred at trial, and (3) whether other instructions properly informed the jury of the State's burden of proof.
Tolen v. State, Mem. Op. & J. No. 5793, 2012 WL 104477, at *4 (Alaska App. Jan. 11, 2012).
Id.
Here, Alto did not dispute that Fred Wasillie was a victim or that the beating occurred; he disputed that he was involved in the beating and claimed that he was also a victim. The problem, therefore, was not necessarily with the use of the word "victim" but rather with the term "actual victim" and the police officer's stated opinion that there was only one real victim in this case. But this error occurred only once, it was immediately followed by a curative statement by the judge that this was a "jury question," and the jury was properly instructed on the State's burden of proof and that they were not to be influenced by the fact that charges had been filed against Alto. We conclude that it is unlikely that the jury was inappropriately affected, and that the admission of this testimony was harmless error.
The rule of completeness did not require the admission of Alto's entire interview.
Alto argues that Judge Torrisi should have admitted the recording of his entire interview with the police, not just two short portions of the interview. Alto's trial attorney sought to have the entire recording admitted under the rule of completeness.
Under the common law rule of completeness, "a party has the right to introduce the remainder of a ... conversation that his or her opponent introduced to the extent that this remainder ... tends to explain or shed light on the meaning of the part already received." However, "the admissibility of other portions of the statement is limited to those portions that are necessary to a proper understanding of the previously admitted portions."
Sipary v. State, 91 P.3d 296, 300 (Alaska App. 2004) (quoting State v. Warren, 732 A.2d 1017, 1019 (N.H. 1999)).
Sipary, 91 P.3d at 300.
Judge Torrisi asked Alto's attorney whether anything in the rest of Alto's interview touched on the topics covered in the two portions that the prosecutor wanted to play for the jury, and Alto's attorney replied, "No, the rest of what my notes indicate, the rest of his interview was a rendition pretty much of what he gave on the stand." In other words, Alto's attorney told Judge Torrisi that the portions of the recording that she sought to be admitted were not necessary to a proper understanding of the portions that the prosecutor sought to admit. Judge Torrisi did not err when he excluded the balance of the interview recording.
The evidence that Alto was angry about an unrelated domestic argument was admissible to show his state of mind.
Alto argues that the evidence of his domestic dispute on the day of the assault was irrelevant and that, even if it was relevant, it was unfairly prejudicial. Under Evidence Rule 404(b)(1), evidence of a defendant's other acts is inadmissible to prove the defendant's character. But Rule 404(b)(1) does not preclude the admission of evidence of a prior act, if the evidence is relevant to prove the defendant's state of mind.
See Lerchenstein v. State, 697 P.2d 312, 317-19 (Alaska App. 1985), aff'd, 726 P.2d 546 (Alaska 1986) (holding that this rule allowed the introduction of evidence that a murder defendant had been angry and combative immediately prior to the homicide).
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Evidence of Alto's domestic argument on the day of Fred Wassillie's assault tended to explain his state of mind at the time of the assault. Travis's girlfriend testified that she heard Alto say, just before he went to Fred's house, that he wanted to get into a fight. The argument explained why Alto was in that state of mind. The jury could reasonably infer that Alto was in the same state of mind when he arrived at Fred's house shortly thereafter.
If Travis's girlfriend had not testified that she heard Alto say that he wanted to get into a fight, the relevance of Alto's domestic argument earlier in the day would have been more speculative. In that scenario, Judge Torrisi might have excluded the evidence due to its prejudicial nature. But because the evidence tended to explain why Alto was looking for a fight on that day in particular, the evidence was properly admitted to show Alto's state of mind.
Conclusion
We AFFIRM the superior court's judgment.