Opinion
Court of Appeals No. A-10355.
February 2, 2011.
Appeal from the Superior Court, Third Judicial District, Anchorage, Eric A. Aarseth, Judge, Trial Court No. 3AN-06-137 CR.
Beth G.L. Trimmer, Assistant Public Advocate, and Rachel Levitt, Public Advocate, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Roger Wade McKinley was convicted of first-degree sexual assault and first-degree murder in a jury trial conducted by Superior Court Judge Eric A. Aarseth. McKinley raises two claims of error on appeal.
AS 11.41.410.
AS 11.41.100.
First, McKinley argues that Judge Aarseth erred in admitting evidence that McKinley attempted suicide six weeks after the night of the murder as probative of McKinley's consciousness of guilt. McKinley argues that there was insufficient evidence of a connection between the murder and his subsequent suicide attempt for the evidence to be admissible. We hold that Judge Aarseth did not err in concluding that there was a sufficient connection in admitting the evidence of the suicide attempt.
Second, McKinley argues that Judge Aarseth erred in refusing to give a "missing witness" instruction that would have told the jury that, because the State had failed to call a witness, Robert Cameron, the jury should infer that Cameron's testimony would not have been favorable to the State's case. We conclude that Judge Aarseth did not err in refusing to give this instruction.
Why we conclude that Judge Aarseth did not err in admitting evidence of McKinley's suicide attempt
C.H. was found dead on September 24, 2002, under the A Street bridge near Ship Creek in Anchorage. That night, McKinley and his girlfriend, Ruth Swetzof, were at a bar. According to Swetzof, McKinley left the bar and returned later, covered in blood. Swetzof stated that later they went to the trailer where she and McKinley lived. At the trailer, McKinley told Swetzof that he had been in a fight with "a couple of black guys and a girl" under the Ship Creek bridge and that he had "hurt somebody bad." A little bit later, Swetzof overheard McKinley and his friend, Robert Cameron, talking outside the trailer. She heard Cameron tell McKinley about a "Tlingit ritual that if you hurt somebody or if you take somebody's life, you have to take your own." She heard the men pull out a tarp, which she believed was for McKinley to be wrapped in after he had killed himself. But McKinley came back into the trailer and said that "he couldn't do it."
Swetzof testified that in the following weeks, McKinley acted nervous, scared, and anxious whenever he would watch the news, that he started getting "mean," and that he did not want to go out. About six weeks after the homicide, McKinley attempted suicide by cutting his wrist. Swetzof told the police officer who responded to the suicide attempt that McKinley had cut himself because he was upset about taking care of his 83-year-old grandfather, had recently broken up with Swetzof, felt that nobody loved him, and felt that his whole family was angry with him.
The State offered the evidence of McKinley's suicide attempt as probative of McKinley's consciousness of guilt about killing C.H. McKinley argued that there was not a sufficient link, or nexus, between the homicide and McKinley's suicide attempt. Judge Aarseth concluded that the evidence of the suicide attempt was sufficiently connected to the homicide because of McKinley's statements and actions on the night the homicide occurred and the testimony about his subsequent personality change prior to the suicide attempt six weeks following the homicide.
The general rule in other jurisdictions is that evidence of a defendant's suicide attempt may be admissible to show a consciousness of guilt. McKinley argues, as he did in the trial court, that there was insufficient evidence connecting his suicide attempt to the homicide for it to be admissible. He points to Swetzof's explanation to the police at the time of McKinley's suicide attempt that McKinley had been upset because he was taking care of his elderly grandfather, he had recently broken up with Swetzof, he felt that no one loved him, and he felt that his whole family was angry with him. He argues that, in light of this alternative explanation, his suicide attempt six weeks after the homicide was unrelated to his consciousness of guilt of the homicide and was connected to these other issues. He argues that any relevance of his suicide attempt was outweighed by the danger of unfair prejudice.
See, e.g., Aldridge v. State, 494 S.E.2d 368, 369-70 (Ga. App. 1997); People v. O'Neil, 165 N.E.2d 319, 321 (Ill. 1960); Commonwealth v. Doe, 393 N.E.2d 426, 429 (M ass. App. 1979); State v. Brown, 517 A.2d 831, 838 (N.H. 1986); State v. Mann, 582 A.2d 1048, 1049-50 (N .J. Super. 1990); State v. Hunt, 287 S.E.2d 818, 823 (N .C. 1982); Commonwealth v. Sanchez, 610 A.2d 1020, 1028 (Pa. Super. 1992). But see Penalver v. State, 926 So.2d 1118, 1132-34 (Fla. 2006) (reviewing the rule on admitting threats of suicide as evidence of consciousness of guilt in various jurisdictions, but holding that evidence of attempted suicide was not admissible because it was too attenuated from the crime).
But we conclude that Judge Aarseth did not abuse his discretion in admitting this evidence. Swetzof's testimony that McKinley apparently seriously considered suicide the night of the homicide and her testimony about McKinley's personality changes between the night of the homicide and his later suicide attempt established a sufficient connection between the homicide and the suicide attempt to support admission of this evidence to show McKinley's consciousness of guilt.
Why we conclude that Judge Aarseth did not commit error when he declined to give McKinley's proposed "missing witness" instruction
Toward the end of McKinley's trial, after the close of the evidence, McKinley's attorney noted that the State had not called Robert Cameron as a witness, and the attorney asked Judge Aarseth to give the following jury instruction:
The State has failed to call Robert Cameron as a witness in this case, or to offer any reason as to why [such witness] was not called to testify. You may infer from the failure to call Robert Cameron as a witness, that his testimony would not have been favorable to the State's case.
Judge Aarseth declined to give this proposed jury instruction, and McKinley argues that this was error.
When Judge Aarseth explained why he declined to give McKinley's proposed instruction, he noted that the other jury instructions already clarified that the State had the burden of proving each element of the offense beyond a reasonable doubt, that the defendant had no duty to produce evidence, and that the jury could find a reasonable doubt based upon a lack of evidence. Judge Aarseth also concluded that the underlying premise of McKinley's proposed instruction — that the State had a duty to call a particular witness — was unsupported by Alaska law.
In addition, Judge Aarseth noted that there was no basis for supposing or inferring that, had Cameron testified, his testimony would have been unfavorable to the State. And finally, Judge Aarseth noted that, because McKinley had not raised this issue until after the evidence was closed, the State would be unfairly prejudiced by the lack of notice that Cameron's absence would be an issue in the case.
As we are about to explain, Judge Aarseth's observations and analysis of this issue are mirrored in the case law and the scholarly commentary on the question of whether judges should instruct juries concerning the inference to be drawn from a party's failure to present a particular witness. However, before we discuss that case law and scholarly commentary, we need to briefly describe some aspects of the evidence in McKinley's case.
We have previously discussed Ruth Swetzof's testimony. Two other participants in the events at issue in this case were Eric Walker and Robert Cameron; these two men were roommates, and they were friends of McKinley.
The State called Walker as a witness at McKinley's trial. Walker testified that, on the day before Walker learned about the discovery of C.H.'s body, McKinley came to Walker's and Cameron's house, and he borrowed a knife from Cameron. Walker described this knife as a hunting knife about ten to eleven inches long, with a curved edge.
According to Walker, he stayed home that night, and he did not see McKinley again until later that night, when Cameron woke him up. Walker stated that Swetzof was not present in the house at that time, but that she arrived later.
After Cameron awakened Walker, Walker saw McKinley and observed that McKinley's clothing had blood on it. Walker cleaned the knife that Cameron had earlier loaned to McKinley. Together, Walker and Cameron disposed of the knife and McKinley's bloody clothing.
Walker denied going to McKinley's trailer or hearing anyone talk about suicide.
Walker admitted that the State had made concessions in return for his testimony, including granting him immunity for the crime of evidence tampering and any other charges that might potentially arise out of his actions in aiding McKinley.
Detective Glen Klinkhart, an investigator with the Anchorage Police Department, testified that two years after C.H.'s death, the homicide was still unsolved, so he made a public service announcement asking the public to assist in solving this crime. Following this public service announcement, Klinkhart spoke to Cameron — and, based on the content of Cameron's information, Klinkhart added McKinley's name to the list of people he wanted to talk to.
Klinkhart located McKinley approximately a month later, and McKinley agreed to let Klinkhart obtain his palm prints. McKinley's palm print was later found to match a bloody palm print that was left on a bottle that was found between C.H.'s legs at the crime scene.
Based on the testimony of Walker, Klinkhart, and Swetzof, McKinley contends that Cameron was a critical witness at his trial. He points out that Swetzof testified that she overheard Cameron discussing a purported Tlingit suicide ritual with McKinley, that both Swetzof and Walker testified that Cameron was with McKinley on the night of the homicide, and that Detective Klinkhart testified that his conversation with Cameron led him to consider McKinley as a possible suspect.
In addition, McKinley suggests that Cameron's testimony would have conflicted with the testimony given by Swetzof and Walker. McKinley points out that the State granted immunity to Walker, and McKinley argues that there was no reason why the State could not have granted a similar immunity to Cameron. Based on the fact that Cameron had an obvious Fifth Amendment privilege not to testify about his complicity in getting rid of the knife and McKinley's bloody clothing, and based on the fact that the State might have overridden Cameron's Fifth Amendment privilege by granting immunity to Cameron, McKinley argues that the State essentially controlled whether Cameron testified at the trial. And, based on the assertion that the State controlled whether Cameron testified, McKinley argues that he was entitled to the "missing witness" jury instruction that we quoted earlier.
In other words, McKinley argues that because the State did not call Robert Cameron as a witness, Judge Aarseth was required to tell the jurors that they should assume that Cameron's testimony would have been unfavorable to the State's case.
This issue — whether a party's failure to call a particular witness can give rise to an inference about the likely content of that missing witness's testimony — has been considered several times by the Alaska appellate courts. The two most notable Alaska cases on this issue are State v. Gilbert and Lewis v. State.
925 P.2d 1324 (Alaska 1996).
862 P.2d 181 (Alaska App. 1993).
Neither of these cases is cited, much less discussed, in McKinley's opening brief. McKinley's reply brief devotes one paragraph to the Lewis decision, but only because the State expressly relies on Lewis in its brief.
As illustrated by the discussions of this issue found in Gilbert and Lewis, there is no "mainstream" or unified judicial approach to the question of when (if ever) it is proper to tell jurors that they can or should draw an inference against a party simply because of that party's failure to call a particular witness. American jurisdictions differ as to whether judges should ever instruct the jury on this matter. And among the jurisdictions that do allow judges to comment on the failure of a party to produce a particular witness, the rules differ as to what circumstances justify a "missing witness" jury instruction, and whether, if those circumstances are present, the instruction is mandatory or (instead) rests within the trial judge's discretion.
Gilbert, 925 P.2d at 1327-28; Lewis, 862 P.2d at 190.
On the issue of whether it is ever proper to instruct the jury on this matter, we note that there is substantial difference between (1) allowing an attorney to ask the jury to draw the adverse inference and (2) having the trial judge instruct the jury that they may or should draw the adverse inference. All of the prior Alaska cases on this issue (including Gilbert and Lewis) have dealt with the former situation: cases in which an attorney asked the jury to draw an inference about the factual weakness of the opposing party's case, based on that party's failure to call a particular witness. Until now, Alaska courts have never addressed the latter situation — having the trial judge instruct the jurors to draw such an inference.
In his brief to this court, McKinley acknowledges that the issue of whether a trial judge should instruct the jury on the significance of a party's failure to call a particular witness "does not appear to have been [addressed] by the higher courts [of] the State of Alaska." Nonetheless, McKinley takes the position that not only are judges allowed to give this type of instruction, but judges are in fact obligated to give this type of instruction whenever the identified witness is peculiarly within the control of the opposing party.
McKinley contends that this obligation arises under the compulsory process clause of the United States and Alaska Constitutions. We find this contention dubious at best. The compulsory process clause guarantees criminal defendants the right to use subpoenas to procure the attendance of witnesses and obtain physical evidence to aid in their defense.
See U.S. Const. amend. VI; Alaska Const. art. I, § 11 ("In all criminal prosecutions, . . . [t]he accused is entitled . . . to have compulsory process for obtaining witnesses in his favor.").
McKinley's case does not involve an abridgement of McKinley's right to procure defense witnesses or other defense evidence. McKinley did not seek to subpoena Cameron or otherwise offer him as a defense witness. Rather, McKinley's claim is based on the State's failure to offer Cameron as a government witness. McKinley's brief fails to offer a convincing explanation of how the constitutional right to compulsory process applies to this situation.
We further note that, while many jurisdictions allow attorneys to comment on an opposing party's failure to call a witness, there is considerable hesitancy to require trial judges to instruct juries on this point. The most recent edition of McCormick on Evidence speaks to this issue:
In jurisdictions where the judge retains the common law power to comment on the evidence, a fair comment on [a party's] failure to produce witnesses or evidence is traditionally allowable. Permitting judicial discretion to instruct on the inference is appropriate. However, a practice that gives a party a right to such instruction is undesirable because it tends to lead to the development of elaborate rules defining the circumstances when the right exists. . . . [T]he cost of complex rules far outweighs the gain.
2 Kenneth S. Broun et al., McCormick on Evidence § 264, at 225 (6th ed. 2006).
The footnote accompanying this passage cites State v. Malave, holding that missing witness instructions should never be given in criminal cases, and Patterson v. State, holding that it is never error for a trial judge to refuse to give a missing witness instruction, regardless of the circumstances.
737 A.2d 442 (Conn. 1999).
741 A.2d 1119 (Md. 1999).
Malave, 737 A.2d at 446-52; Patterson, 741 A.2d at 1124-28.
As McCormick explains, a rule requiring judges to instruct juries on the significance of uncalled witnesses has several costs:
Despite an abundance of cases recognizing [that it is permissible to draw] the [adverse] inference, [a trial judge's] refusal . . . to instruct [on this inference] rarely results in a reversal, while [a judge's act of] erroneously instructing the jury on the inference . . . much more frequently requires retrial. The appellate courts often counsel caution. . . . The possibility that the inference may be drawn [and that a missing witness instruction will be requested] invites waste of time in calling unnecessary witnesses or in presenting evidence to explain why [they] were not called. Failure to anticipate that the inference [(or a missing witness instruction)] may be invoked entails substantial possibilities of surprise.
2 Kenneth S. Broun et al., McCormick on Evidence § 264, at 222-23.
In his brief to this court, McKinley argues that missing witness instructions should be mandatory whenever a party asks for one, but McKinley does not mention (much less address) the above criticisms of a mandatory instruction rule, nor does McKinley mention the fact that several jurisdictions have flatly rejected the idea that judges are ever obligated to instruct juries on this issue.
See Herbert v. Wal-Mart Stores, Inc., 911 F.2d 1044, 1047 (5th Cir. 1990) (concluding that "the uncalled-witness rule has no place in federal trials conducted under the Federal Rules of Evidence and the Federal Rules of Civil Procedure); Malave, 737 A.2d at 446-47; Patterson, 741 A.2d at 1125; State v. Brewer, 505 A.2d 774, 776-77 (Me. 1985) (holding that "the failure of a party to call a witness does not permit the opposing party to argue, or the factfinder to draw, any inference as to whether the witness's testimony would be favorable or unfavorable to either party.").
Turning to another issue: Even assuming that Alaska law allowed trial judges to instruct juries on the issue of a party's failure to produce a witness, the record in McKinley's case gives no reason to think that the missing witness, Cameron, was more favorably disposed to the State than to McKinley. We note that Cameron was McKinley's friend, and that Cameron apparently helped McKinley hide or destroy evidence of the crime. As explained by our supreme court in Gilbert, and as explained in McCormick, even among the jurisdictions that allow comment on missing witnesses, many jurisdictions allow this type of comment only if the witness in question is "reasonably assumed to be favorably disposed to the party [who fails to call the witness]" — here, the State.
Gilbert, 925 P.2d at 1327 n. 3; 2 Kenneth S. Broun et al., McCormick on Evidence § 264, at 221.
McKinley makes no attempt to argue that Cameron was more favorably disposed to the State than he was to McKinley. Instead, McKinley argues that the test should not be whether the missing witness was aligned in interest with the party who failed to call them. McKinley advocates a different test: whether the absent witness was under the "exclusive control" of the party who failed to call them.
This is, indeed, an alternative rule that is applied in some jurisdictions. But McKinley does not acknowledge that there is a split of authority on this issue. Much less does McKinley provide any good reason why we should reject the first approach (under which the missing witness doctrine applies only to witnesses who are presumably favorably disposed to the party who fails to call them) and instead adopt the second approach (under which the doctrine applies to witnesses who are under the exclusive control of the party who fails to call them).
Gilbert, 925 P.2d at 1327 n. 3; 2 Kenneth S. Broun et al., McCormick on Evidence § 264, at 221.
Not only does the case law contain these two differing judicial approaches to the issue, but it appears that the second approach — the one advocated by McKinley — may now be the disfavored approach. The most recent edition of McCormick on Evidence declares that appellate decisions adopting the second approach "are increasingly less frequent due to the growth of [pre-trial] discovery and other disclosure requirements."
2 Kenneth S. Broun et al., McCormick on Evidence § 264, at 221-22.
As McCormick explains, "the availability of modern discovery and other disclosure procedures serves to diminish both [the] justification [for drawing an adverse inference from the fact that a witness was not presented] and the need for the inference." In other words, it may have made sense in the past — when parties came to court without detailed knowledge of their adversary's witness statements and other potentially available evidence — to allow the trier of fact to draw an adverse inference whenever a party failed to present a witness who was specially within their control. But now that most litigation is governed by rules that allow wide-ranging reciprocal pre-trial discovery, there is little justification for directing or asking the jury to speculate as to the probable content of a potential witness's ungiven testimony — because, normally, both sides will have a fair idea of what that ungiven testimony would have been. Moreover, as McCormick notes, "[i]f discovery is available but not employed, [a] party ought not be allowed to resort to the somewhat speculative [missing witness] inference when discovery would substitute certainty."
Id. at 223.
Id. at 223 n. 19.
We additionally note that, even if we adopted the "exclusive control" test that McKinley proposes, he still would not have been entitled to the jury instruction he proposed — because Cameron was not in the exclusive control of the State.
McKinley's argument that Cameron was in the exclusive control of the State arises from the fact that, if Cameron had been called as a witness, he likely would have exercised his Fifth Amendment privilege to refrain from answering questions related to his potential acts of evidence tampering. Thus, Cameron probably would have refused to testify unless the State granted him immunity.
McKinley acknowledges that the State was not legally obligated to offer Cameron immunity. But McKinley argues that, once the State decided not to grant immunity to Cameron, McKinley became entitled to a "missing witness" instruction regarding the likely content of Cameron's ungiven testimony.
There are two problems with McKinley's argument.
First, there is nothing in the record to show that Cameron ever exercised his Fifth Amendment privilege, or that he announced he would exercise this privilege if he was called as a witness at McKinley's trial. Thus, there is nothing in the record to show that the State ever made a decision whether to grant immunity to Cameron.
Second, even assuming that Cameron had exercised his Fifth Amendment privilege and that the State actively decided not to offer immunity to Cameron, the great weight of authority is that a witness in this situation ( i.e., a witness who exercises his or her right to refuse to testify) is not considered to be under the "control" of the government, even when the government has the power to grant immunity to the witness and declines to do so. In such a case, the defendant is not entitled to a missing witness instruction.
See United States v. Jimenez, 419 F.3d 34, 44 (1st Cir. 2005) (reaffirming that "the government's power to grant immunity from prosecution to a witness does not make that witness . . . 'peculiarly available' to the government"); United States v. Simmons, 663 F.2d 107, 108 (D.C. Cir. 1979) (finding that a witness asserting her Fifth Amendment right not to testify was "unavailable to either party"); McDuffie v. State, 693 A.2d 360, 362-63 (Md. App. 1997); People v. Culver, 192 A.D.2d 10, 17-18 (N.Y. App. 1993); see also United States v. Stulga, 584 F.2d 142, 145-46 (6th Cir. 1978) (dealing with the failure of a party to raise the missing witness issue before the close of the evidence). But see People v. Goetz, 516 N.Y.S.2d 1007, 1009 (N.Y. Sup. 1987) (finding a witness expected to testify favorably to the State and adversely to the defendant must be considered in the control of the State).
See United States v. Bazzano, 570 F.2d 1120, 1128-29 (3d Cir. 1977); United States v. Flomenhoft, 714 F.2d 708, 713-14 (7th Cir. 1983); Morrison v. United States, 365 F.2d 521, 524 (D.C. Cir. 1966); Alston v. United States, 383 A.2d 307, 313-14 (D.C. App. 1978); People v. Bracey, 417 N.E.2d 1029, 1039 (Ill. App. 1981); State v. Domino, 708 So.2d 1143, 1146-47 (La. App. 1998); State v. Dachtler, 318 N.W.2d 769, 774 (N.D. 1982). But see Goetz, 516 N.Y.S.2d at 1009 (allowing missing witness instruction where it appeared that the government had selectively granted immunity to co-defendants).
To summarize the foregoing discussion:
McKinley contends that Judge Aarseth was required to give his proposed "missing witness" instruction — an instruction that would have authorized the jury to infer that Cameron's testimony, if given, would have been unfavorable to the State. Currently, there is no Alaska law to support McKinley's position: no law that requires or even authorizes the giving of such a jury instruction.
In the rest of our country, the law on this point differs considerably from jurisdiction to jurisdiction. Some jurisdictions either forbid such jury instructions or hold that it is never error for a trial judge to refuse to give such an instruction. Some jurisdictions allow such jury instructions, but only when the absent witness is presumably aligned in interest with the party who failed to call them. Some jurisdictions allow such jury instructions when, regardless of the presumed bias of the witness or the expected tenor of their testimony, the absent witness is under the exclusive control of the party who failed to call them. But even in these jurisdictions, a witness is not generally considered to be in the "exclusive control" of the government when the government declines to extend immunity to a witness who has validly claimed a Fifth Amendment privilege not to testify.
McKinley has failed to meaningfully address any of the foregoing legal positions, or to explain why we should adopt his preferred position over the others. Moreover, even if we were to adopt McKinley's proposed version of the law ( i.e., the "exclusive control" test), the facts of McKinley's case do not satisfy that test.
For these reasons, McKinley has failed to demonstrate that Judge Aarseth committed error when he declined to give McKinley's proposed "missing witness" jury instruction.
Conclusion
The judgment of the superior court is AFFIRMED.