Opinion
Court of Appeals No. A-10735 Trial Court No. 3AN-07-0721 CR No. 5997
12-11-2013
AIRJETIS ESPINAL, Appellant, v. STATE OF ALASKA, Appellee.
Josie Garton, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Tamara E. de Lucia, 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, Anchorage, Larry D. Card, Judge.
Appearances: Josie Garton, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Tamara E. de Lucia, 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).
Judge MANNHEIMER.
Airjetis Espinal was originally charged with sexually assaulting, or attempting to sexually assault, four women in three separate episodes during the course of a single evening. In each case, the State alleged that Espinal enticed the women to enter his car, drove them a distance, and then attacked them. In chronological order, these assaults involved M.T. and her mother, K.T.; then J.L.; and then P.M.. In addition, Espinal was charged with attempting to murder J.L., for firing shots at her when she fled his car.
Espinal was first brought to trial in late March 2009. At that first trial, the jury acquitted Espinal of sexually assaulting M.T. and K.T., and the jury also acquitted him of three of the four counts of sexual assault involving P.M.. However, the jury was unable to reach a verdict on the fourth sexual assault count involving P.M., and the jury was likewise unable to reach a verdict on the attempted murder and attempted sexual assault counts involving J.L..
The State chose to retry these unresolved counts. At the second trial, Espinal was convicted of the remaining sexual assault count involving P.M. and the attempted sexual assault count involving J.L.. Espinal was acquitted of attempting to murder J.L., but he was convicted of the lesser offense of third-degree assault (placing J.L. in fear of imminent serious physical injury by means of a dangerous instrument).
Espinal now appeals these convictions.
The sexual assault count involving P.M. must be reversed because of a flaw in the jury instructions
The State concedes that Espinal's conviction for sexually assaulting P.M. is flawed because of a defect in the jury instructions.
Espinal was originally charged with four counts of sexual assault involving P.M.: the first count alleged genital penetration, the second count alleged anal penetration, the third count alleged oral penetration, and the fourth count alleged another act of genital penetration. (It appears that these four counts were drafted to track the order of events described by P.M..)
At Espinal's first trial, the jury found Espinal not guilty of the second, third, and fourth counts (i.e., the anal and oral penetration counts, and the second genital penetration count). The jury was unable to reach a verdict on the first count (the other genital penetration count), and this was the count that was retried.
When P.M. testified at Espinal's second trial, she described her entire encounter with Espinal, including all four acts of sexual penetration. Because of this, the trial judge and the parties recognized that something had to be done to forestall the jury from convicting Espinal for any of the three acts of sexual penetration of which he had been acquitted at the earlier trial.
The trial judge ultimately adopted the strategy of giving the jurors an incomplete definition of "sexual penetration". Although the statutory definition of this term encompasses any penetration of the genitals, the mouth, or the anus, see AS 11.81.900(b)(59)(A), the trial judge told the jury that "sexual penetration" referred solely to genital penetration — and that Espinal could not be convicted for penetrating P.M. in other ways.
As the State concedes on appeal, this instruction solved only part of the problem. By limiting "sexual penetration" to genital penetration, the instruction prevented the jurors from convicting Espinal based on the oral and anal penetrations that he had earlier been acquitted of. But the instruction drew no distinction between the two acts of genital penetration — and Espinal had already been acquitted of one of these acts. Under this instruction, the jury potentially convicted Espinal of sexual assault based on an act of genital penetration that he had already been acquitted of — which would be a violation of the constitutional guarantee against double jeopardy.
As the State further concedes in its brief, the parties' summations to the jury did not cure this problem. Neither the prosecutor nor the defense attorney drew any distinction between the two acts of genital penetration, nor did they explain that, as a legal matter, only one of these acts could be used as the basis for a conviction.
We accept the State's concession of error, and we therefore reverse Espinal's conviction for sexually assaulting P.M..
See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (requiring an appellate court to independently assess any concession of error by the State in a criminal case).
Why the trial judge correctly refused to let Espinal introduce evidence that P.M. had been convicted of prostitution
Although we are reversing Espinal's conviction involving P.M., there is an evidentiary question that is raised on appeal and that may arise again if the State chooses to retry Espinal on this charge. The question is whether Espinal should have been allowed to introduce evidence that P.M. had been convicted of prostitution.
At his second trial, Espinal took the stand and testified that he encountered P.M. at a gas station. According to Espinal, P.M. knocked on the window of his vehicle and asked if he had a cigarette lighter. P.M. then got into Espinal's car, and the two of them smoked a cigarette. P.M. said she was going to a party, so Espinal volunteered to drive her there.
Espinal testified that, after he parked the car, he and P.M. flirted and began to kiss, and then P.M. had consensual sex with him — first an act of fellatio, and then an act of genital intercourse. Espinal also testified that the encounter ended badly because, after the sexual intercourse, P.M. asked Espinal to give her $50.00. When Espinal refused to pay, P.M. began searching his car for money — at which point, Espinal grabbed a BB gun, pointed it at P.M., and told her to get out of his car.
To bolster the credibility of Espinal's testimony, and to support the contention that P.M. later claimed she was raped only because Espinal refused to pay her, Espinal's attorney asked the trial judge for permission to introduce evidence that P.M. was convicted of prostitution for conduct that occurred about three weeks after Espinal's encounter with P.M..
The trial judge ruled that this conviction was irrelevant because the act of prostitution occurred after the events being litigated in Espinal's case, and thus the conviction proved only P.M.'s criminal "propensity".
Although the judge's stated reasons for this ruling are dubious, the ruling itself was correct. Alaska law does not allow a litigant to introduce evidence of a person's criminal conviction if the conviction is being offered to prove that the person actually engaged in the criminal conduct underlying that conviction. Jones v. State, 215 P.3d 1091, 1099 (Alaska App. 2009).
On this point, Alaska law is different from the corresponding federal law. Federal Evidence Rule 803(22) contains a hearsay exception for criminal convictions that are based on a trial verdict or a guilty plea (as opposed to a no contest plea). Under the federal rule, the conviction is admissible to prove "any fact essential to sustain the judgment".
We explained this in more detail in Jones v. State, 215 P.3d at 1098.
But as we explained in Jones, the drafters of the Alaska Rules of Evidence explicitly decided not to adopt Federal Evidence Rule 803(22). Alaska evidence law does not contain any hearsay exception that would allow litigants to offer evidence of a criminal conviction to prove the truth of the matters asserted by the fact-finder's verdict in that earlier criminal litigation.
In the final paragraph of the Commentary to Alaska Evidence Rule 803, the drafters explained their reasons for not adopting the federal rule. Essentially, a hearsay exception for criminal convictions would allow litigants to prove their cases by offering the findings of fact made by an earlier jury — a jury which was comprised of people unknown to the current jury, and which reached its decision based on a different evidentiary presentation.
As the Alaska drafters remarked, the unadorned fact that the earlier jury reached a particular decision "tells the [current jury] nothing". The current jury has not heard the evidence that was presented to the earlier jury. Thus, (1) the current jurors have no way to meaningfully assess whether the earlier jury reached a proper decision based on the evidence presented at the earlier trial, and (2) the current jurors have no way to meaningfully assess whether the evidence that they have heard (in the current trial) undermines the factual conclusions reached by the earlier jury.
Thus, as the Alaska drafters explained, the current jury is likely to "either disregard [the prior verdict] or defer to it" — but "neither of [these outcomes] is intended by the [corresponding] Federal Rule."
Jones, 215 P.3d at 1099.
Under Alaska law, a criminal conviction can trigger the doctrine of issue preclusion. As the Alaska Supreme Court held in Scott v. Robertson, 583 P.2d 188, 191-93 (Alaska 1978), when a person is charged with a serious criminal offense, if an episode or event is actively litigated in that criminal case, and if the case ends in the defendant's conviction, the conviction bars any renewed litigation of the underlying episode or event in a related civil lawsuit.
But as this Court stated in Jones, "no provision of the Alaska rules of evidence authorizes the evidentiary use of a criminal judgement ... to prove the facts underlying that judgement." 215 P.3d at 1099 (emphasis in the original). Or, as we said in Douglas v. State, 166 P.3d 61, 85 (Alaska App. 2007), "[E]vidence of a criminal conviction is inadmissible hearsay under Alaska law if it is offered to prove that the defendant actually engaged in the conduct that would justify that conviction."
For these reasons, the trial judge in this case reached the correct result when he ruled that Espinal could not offer evidence of P.M.'s conviction for prostitution. That conviction was inadmissible hearsay, because Espinal wanted to introduce the conviction to prove that P.M. actually engaged in the underlying act of prostitution that would justify the conviction.
Whether the trial judge abused his discretion when he allowed the State to present testimony and physical evidence concerning the sexual assault of M.T. — an act of which Espinal was acquitted at his first trial
As we explained in the introductory section of this opinion, Espinal was initially charged with sexually assaulting M.T., but he denied having sex with her, and he was acquitted of that charge at his first trial.
After that first trial, the State obtained new physical evidence tending to prove that Espinal had indeed engaged in sex with M.T.. This new evidence came from a crime lab analysis of a blood stain found on J.L.'s pants.
When this blood was analyzed, it was found to have come, not from J.L., but rather from M.T.. Apparently, M.T.'s blood soaked into J.L.'s pants while J.L. was sitting in the passenger seat of Espinal's car — the same seat where M.T. had been sitting earlier in the evening.
M.T.'s blood was found to contain spermatozoa. An ensuing test of this spermatozoa revealed that Espinal could not be excluded as the source of the spermatozoa. In other words, this new forensic evidence tended to prove that Espinal had engaged in some type of sexual encounter with M.T..
Based on this new information tending to prove that Espinal had engaged in sex with M.T., the State asked the trial judge for permission, under Evidence Rule 404(b), to introduce evidence (both testimony and DNA test results) that Espinal had sexually assaulted M.T. earlier in the evening, before his encounters with J.L. and P.M.. The trial judge granted this motion over Espinal's objection.
On appeal, Espinal concedes that there was no double jeopardy bar to the admission of this evidence. However, Espinal argues that the trial judge abused his discretion by allowing the State to introduce so much evidence on this point. Espinal contends that, as a result of the trial judge's ruling, he was essentially forced to completely relitigate the allegation of sexual assault involving M.T. — and that the extensive litigation of the assault on M.T. prejudiced the jury's consideration of the charges involving J.L. and P.M..
See United States v. Watts, 519 U.S. 148, 155-56; 117 S.Ct. 633, 637; 136 L.Ed.2d 554 (1997); Dowling v. United States, 493 U.S. 342, 349; 110 S.Ct. 668, 672; 107 L.Ed.2d 708 (1990).
Much of Espinal's argument is based on this Court's decision in Bingaman v. State, 76 P.3d 398 (Alaska App. 2003). In Bingaman, we discussed the potential dangers of wide-open admission of evidence under Alaska Evidence Rule 404(b)(4) (a special provision that authorizes admission of evidence of a defendant's other acts of domestic violence), and we cautioned trial judges to exercise informed discretion when ruling on the admissibility of evidence of other wrongful acts under that rule.
But as we explained in Bingaman, this need for extra analysis and caution arises chiefly from the fact that Evidence Rule 404(b)(4) differs in a fundamental way from Evidence Rule 404(b)(1) (the traditional provision dealing with evidence of other crimes or wrongs).
Evidence Rule 404(b)(4) explicitly authorizes the admission of evidence of other acts of domestic violence to prove the defendant's character (or "propensity"). Evidence Rule 404(b)(1), in contrast, retains the traditional prohibition on the use of "other crimes" evidence to prove character; the rule requires the proponent of the evidence to show that the evidence has a case-specific relevance other than character. Bingaman, 76 P.3d at 411.
Espinal concedes that the evidence involving the assault on M.T. was admissible under Rule 404(b)(1). In other words, this evidence had a case-specific relevance, apart from whatever it might suggest about Espinal's character. Moreover, the record shows that the trial judge considered the potential of this evidence for unfair prejudice, and he concluded that the probative value of the evidence outweighed this potential.
Given the issues litigated at Espinal's second trial, given the nature of the evidence relating to the assault on M.T., and given the relationship between this evidence and the State's attempts to prove that Espinal sexually assaulted J.L. and P.M., the trial judge did not abuse his discretion when he allowed the State to fully present its evidence on this topic.
Whether the trial judge committed error when he declined to instruct the jury that Espinal had previously been acquitted of the oral and anal penetrations of P.M.
As we have already explained, P.M. took the stand at Espinal's second trial and described her entire encounter with Espinal — including the acts of oral and anal penetration of which Espinal was acquitted at his first trial. And as we have also explained, Espinal took the stand at the second trial and conceded that he flirted with P.M., and that he then engaged in both oral penetration (fellatio) and genital penetration with P.M. — but Espinal claimed that these acts were consensual.
During the presentation of evidence at Espinal's second trial, Espinal's attorney did not introduce evidence that Espinal had been acquitted of the oral and anal penetrations. Nor did Espinal's attorney ask the trial judge to take judicial notice of these acquittals. But at the end of the second trial, the defense attorney asked the trial judge to instruct the jury that Espinal had been acquitted of the oral and anal penetrations. The trial judge denied the defense attorney's request. Instead, as we have already described, the judge simply told the jurors that the term "sexual penetration" did not include oral and anal penetration (to make sure that the jury did not convict Espinal for either of those acts).
On appeal, Espinal argues that the judge committed error by refusing to instruct the jury that Espinal was previously acquitted of orally and anally penetrating P.M.. In essence, Espinal argues that the trial judge's action may have solved one problem (the possibility that the jury might convict Espinal of sexual assault for engaging in the oral or anal penetration of P.M.), but the judge's action did not go far enough. According to Espinal, he was entitled to have the jury affirmatively instructed that his previous trial ended in an acquittal of the oral and anal penetration charges because "[these] acquittals tended to show either that the acts of penetration did not occur [at all] or that they [occurred with] P.M.'s consent."
(Because Espinal took the stand and conceded that the act of oral penetration did occur, we interpret Espinal's appellate argument to mean that the prior acquittals tended to show (1) that the act of oral penetration was consensual, and (2) that the act of anal penetration did not occur.)
To support this argument, Espinal relies on the Alaska Supreme Court's decision in Hess v. State, 20 P.3d 1121 (Alaska 2001). But Hess does not speak directly to the situation presented in Espinal's case.
Hess holds that, when the government offers evidence that the defendant has committed another crime or wrong, the defense may respond by introducing evidence that the defendant was previously brought to trial and acquitted of that wrongful conduct, or by asking the trial judge to take judicial notice of this fact. Id. at 1127. But in the present case, Espinal did not offer any evidence of his prior acquittal, nor did he ever make a request for judicial notice during the evidentiary portion of his trial. Rather, at the end of the trial, he simply asked the trial judge to instruct the jurors that he had been acquitted of the oral and anal penetrations.
One might argue that Espinal was, in essence, belatedly asking the trial judge to take judicial notice of the fact that he had earlier been acquitted of the counts alleging oral and anal penetration. But even if we viewed the matter this way, there are still two reasons why the trial judge could properly reject Espinal's request.
First, even if Espinal was asking for judicial notice of the prior acquittals, he would not be entitled to the jury instruction he was seeking. Espinal wanted the trial judge to flatly tell the jury that Espinal had been acquitted of the oral and anal penetrations. This requested instruction would contravene Evidence Rule 203(c). Rule 203(c) declares that, when a trial judge takes judicial notice of one or more facts in a criminal case, the judge must not instruct the jury to accept these judicially noticed facts as true. Rather, "the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact [that has been] judicially noticed."
We acknowledge that, in the Commentary to Evidence Rule 203(c), this restriction on a trial judge's authority in criminal cases is explained primarily in terms of preserving the accused's right to jury trial. But the text of the rule itself draws no distinction between facts that are judicially noticed at the request of the government and facts that are judicially noticed at the request of the defendant.
We further note that, according to the Federal Rules of Evidence Manual, the corresponding federal rule — Federal Evidence Rule 201(f) — applies to all judicially noticed facts in a criminal case, regardless of whether the trial judge takes notice of the fact at the request of the government or the defendant. See Stephen A. Saltzburg, Michael M. Martin, and Daniel J. Capra, Federal Rules of Evidence Manual (10th ed. 2011), Vol. 1, pp. 201-10 - 201-11.
Here is the pertinent discussion from the Federal Rules of Evidence Manual (with emphasis supplied):
In effect, [Federal Evidence] Rule 201 treats judicial notice in criminal cases on a par with a permissible inference. This would seem to permit the party, usually the defendant, against whom [judicial] notice is taken, to offer evidence to rebut the noticed fact (although relevant evidence of a fact not reasonably [subject to dispute] should be hard to find). The real advantage of judicial notice in a criminal case is to excuse the prosecution (or the defendant in the rare case in which the defense takes advantage of judicial notice) from having to make a formal presentation of evidence to establish a point.
Second, even if Espinal had explicitly framed his request as a request for judicial notice of the prior acquittals, it would have been procedurally unfair for the trial judge to grant Espinal's request after the evidence had closed.
As we just explained, judicial notice is not binding on the jury in a criminal case. Because of this, the party who unsuccessfully opposes a request for judicial notice is entitled to introduce evidence to impeach or explain the fact that has been judicially noticed. Federal Rules of Evidence Manual, Vol. 1, p. 201-10.
Thus, if Espinal's trial judge had granted a request for judicial notice of the acquittals during the evidentiary portion of the second trial, the State presumably would have been entitled to attack the impeaching value of those acquittals by introducing evidence (either testimony or transcripts) to show that the evidence presented at Espinal's earlier trial was significantly different from the evidence that the jury heard at his second trial.
For instance, the State might have introduced evidence to clarify for the second jury that the earlier jury (the jury that acquitted Espinal) did not hear the newly developed forensic evidence that M.T.'s blood was found on J.T.'s pants, and that this blood contained spermatozoa that likely came from Espinal.
Because Espinal waited until the close of the evidence before seeking a ruling from the trial judge on this issue, it would have been procedurally unfair for the judge to grant Espinal's request.
For these reasons, we uphold the trial judge's ruling.
The defense request to "refresh the recollection" of J.L. regarding her use of crack cocaine, by showing her a notation made by the nurse who conducted the sexual assault examination
At Espinal's second trial, his attorney argued that J.L.'s testimony about the sexual assault was not credible because J.L. was high on crack cocaine during her encounter with Espinal. Indeed, during J.L.'s trial testimony, she admitted that she had smoked crack cocaine about 15 minutes before her encounter with Espinal.
But when Espinal's attorney asked J.L. to concede that she was using crack "four times a week", J.L. answered "no". In response, Espinal's attorney asked J.L. if she had undergone a sexual assault response examination, and if she was interviewed during that exam. J.L. said "yes". The defense attorney then asked the trial judge for permission to approach J.L. — apparently with the intention of showing J.L. a page from the sexual assault examination report. When the prosecutor objected, a bench conference ensued.
In this bench conference, the trial judge asked Espinal's attorney if J.L. had ever seen the document that the attorney was about to show her. When the defense attorney did not answer the judge's question, the judge told the defense attorney, "If she's seen it, I would allow it. But that question needs to be asked as foundation first, before [you] proceed."
The defense attorney responded, "To refresh [her] recollection, I can show [her] anything." The trial judge replied, "You can show her anything that refreshes her recollection, but it doesn't refresh her recollection if she's never seen it. ... You need to ask her if she's ever seen it. If she's never seen it, you will not be allowed to refresh her recollection [with the document]. ... So ask that question."
But when the bench conference ended and the defense attorney resumed her cross-examination of J.L., the attorney did not ask J.L. if she had ever seen the sexual assault examination report. Instead, the defense attorney got J.L. to concede that she was using crack cocaine "on a regular basis" at that time in her life. Then the defense attorney moved on to other topics.
On appeal, Espinal argues that the trial judge's ruling was wrong. He notes that, under Alaska Evidence Rule 612(a), it is permissible to refresh a witness's recollection with any document or other object, and he further notes that Rule 612 does not require the examiner to establish that the witness has previously seen the document or object.
Espinal's view of the law is correct. It appears that the trial judge may have been confusing the concept of refreshing a witness's recollection under Rule 612 — which can be done by showing the witness "almost anything", even when the document or object is not itself admissible — with the hearsay exception codified in Evidence Rule 803(5), which authorizes the admission of documents that record a witness's past recollection, provided the proponent of the evidence establishes that the document was made or adopted by the witness when the witness's memory was fresh.
Stephen A. Saltzburg, Michael M. Martin, and Daniel J. Capra, Federal Rules of Evidence Manual (10th ed. 2011), Vol. 3, p. 612-4.
As noted by the Maryland Court of Special Appeals in Baker v. State, 371 A.2d 699, 705 (Md. App. 1977), the thing that triggers a witness's memory "may be a line from Kipling or the dolorous refrain of 'The Tennessee Waltz'; a whiff of hickory smoke; the running of the fingers across a swatch of corduroy; the sweet carbonation of a chocolate soda; [or] the sight of a faded snapshot in a long-neglected [photo] album. All that is required is that it ... trigger the Proustian moment." (Quoted, except for the last sentence, in Kenneth S. Broun et alia, McCormick on Evidence(7th ed. 2013), § 9, Vol. 1, p. 49.)
Nevertheless, it is unclear whether Espinal's attorney preserved an objection to the judge's ruling. After the trial judge told the defense attorney, "You can show [J.L.] anything that refreshes her recollection, but it doesn't refresh her recollection if she's never seen it. ... You need to ask her if she's ever seen it," the defense attorney did not openly disagree with the judge's interpretation of Rule 612.
Nor did the defense attorney ask J.L. the foundational question suggested by the judge (i.e., whether J.L. had previously seen the sexual assault examination report) — so that the attorney could either satisfy the judge's concern (in the event that J.L. acknowledged that she had seen the report), or so that the attorney could renew her evidentiary argument (in the event that J.L. denied having seen the report).
Instead, the defense attorney simply resumed her cross-examination of J.L. — and got J.L. to admit that, at the time of her encounter with Espinal, she was using crack cocaine "on a regular basis". Having elicited this answer, the defense attorney moved on to other topics.
In any event, even assuming that this issue is preserved, we conclude that the error in the trial judge's ruling was harmless. As we have explained, the defense attorney elicited J.L.'s testimony (1) that she was using crack cocaine on a "regular basis" and (2) that she smoked crack cocaine about 15 minutes before her encounter with Espinal. Given this testimony, we can fairly say that the error in the judge's ruling did not appreciably affect the jury's verdict.
See Love v. State, 457 P.2d 622, 634 (Alaska 1969) (holding that, for instances of non-constitutional error, the test for harmlessness is whether the appellate court "can fairly say that the error did not appreciably affect the jury's verdict").
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The superior court should reconsider Espinal's conditions of probation
When the superior court sentenced Espinal, the court imposed various conditions of probation restricting Espinal's contact with minors, barring him from possessing any "sexually explicit material", and authorizing his probation officer to search his residence and his person for such material. On appeal, Espinal argues that these conditions of probation do not bear any reasonable relationship to his offense, and that the State failed to otherwise show that these provisions were related either to Espinal's rehabilitation or the need to protect the public.
Recently, in Diorec v. State, 295 P.3d 409 (Alaska App. 2013), this Court addressed similar conditions of probation. See Diorec, 295 P.3d at 415-18 (lead opinion) and 418-420 (concurring opinion). We believe the superior court should reconsider Espinal's conditions of probation in light of Diorec.
Conclusion
Espinal's conviction for sexual assault involving P.M. is REVERSED. Espinal's convictions for attempted sexual assault and third-degree assault involving J.L. are AFFIRMED, with the exception that the superior court is directed to re-examine Espinal's conditions of probation in light of our decision in Diorec.