Opinion
A-13713 7080
12-06-2023
WILLIE J. MOSLEY, Appellant, v. STATE OF ALASKA, Appellee.
Emily L. Jura, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Third Judicial District, Trial Court No. 3PA-19-00453 CR Palmer, Kari C. Kristiansen, Judge.
Emily L. Jura, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
MEMORANDUM OPINION
HARBISON, JUDGE
After the trial court granted Willie J. Mosley's request to represent himself, a jury found Mosley guilty of one count of first-degree assault, one count of second-degree assault, two counts of third-degree assault, four counts of reckless endangerment, and one count of misconduct involving weapons. The charges against Mosley were based on conduct involving Mosley's then girlfriend, Melissa Craig, and her son, T.Y.
AS 11.41.200(a)(1), AS 11.41.210(a)(1), AS 11.41.220(a)(1)(A), AS 11.41.250, and AS 11.61.195(a)(3)(B), respectively. The third-degree assault count against Craig merged with the second-degree assault count, and the reckless endangerment counts merged with the weapons misconduct count.
On appeal, Mosley raises several challenges to his convictions. First, Mosley argues that the court did not conduct an adequate inquiry to determine whether he knowingly waived his right to counsel, or alternatively that the court erred in not appointing standby counsel to assist him. Second, Mosley argues that his right to confrontation was violated when the trial court restricted his cross-examination of two Alaska State Troopers. Third, Mosley argues that the trial court erred in not sua sponte advancing its own theory of relevance for evidence Mosley offered at trial, after it determined that the evidence was irrelevant under Mosley's theory of admissibility. Lastly, Mosley argues that insufficient evidence existed to convict him of third-degree assault against T.Y., or alternatively that the statute is overbroad as applied to him.
For the reasons explained in this opinion, we reject these arguments and affirm Mosley's convictions.
Background facts and proceedings
In March 2019, Melissa Craig lived in a house with her four young children. Willie J. Mosley, her boyfriend of just over one year, was often in the home. One evening, Craig and Mosley got into an altercation in the downstairs bedroom while Craig's children were in bed upstairs.
Craig later testified that Mosley became angry with her and then threatened to kill himself, putting a gun to his own head before pointing it at Craig. Craig attempted to run out of the bedroom, but she fell as she was going out the door. As she fell toward the ground, Craig heard the gun discharge "right behind" her head.
At this point, an alarm went off, making a loud noise. When Mosley attempted to shut off the alarm, Craig got up and headed toward the exterior door. As she was leaving the house to get help from the neighbors, she saw that two of her children had come downstairs and were standing near the door. Craig left the house, but before she could speak to the neighbors, Mosley dragged her back inside the home and into the bedroom, pressing the gun into her neck while strangling her with his other hand. As he was doing this, he threatened to leave her "with nothing left."
Craig's younger child ran upstairs before Mosley dragged her back into the house, but her nine-year-old son, T.Y., was still standing by the door when Mosley forced her back into the house. T.Y. later testified that he had awoken to the sound of an alarm and his mother's screams. He went downstairs to check on his mother, and witnessed part of the altercation. He saw Mosley drag his mother into the bedroom, point a gun at her, and strangle her.
According to Craig, T.Y. was standing in the doorway to the bedroom while Mosley was strangling her. She testified that Mosley strangled her until her vision started to go black, but right before she lost consciousness, he released her.
Mosley eventually calmed down. He told T.Y. to go back upstairs, and he returned the gun to the closet. Both Craig and T.Y. testified that, during the incident, they feared that Mosley would kill Craig and then the children.
Craig's neighbors called 911, and the police responded to Craig's residence. They arrested Mosley, and Craig was taken to the hospital for examination. Craig's medical providers later testified that Craig had marks and scratches on her neck, and scratches and bruising on her arms and legs. Her left eardrum required surgery and was permanently damaged as a result of the gun being fired so close to her ear.
The State charged Mosley with first-degree and second-degree assault (for conduct directed at Craig), two counts of third-degree assault (for conduct directed at Craig and T.Y.), four counts of reckless endangerment (for conduct directed at Craig's four children), and one count of second-degree weapons misconduct.
At Mosley's arraignment, he indicated that he wanted to be represented by an attorney, and the court appointed the Public Defender Agency to represent him. Three months later, Mosley's assigned attorney notified the court that Mosley now wished to represent himself. The court scheduled a representation hearing for the following week.
At the representation hearing, the court engaged in a lengthy discussion of the benefits of counsel and the dangers of self-representation. It also asked Mosley a series of questions about his education, experience, knowledge of court rules, and willingness to follow rules of decorum. Following this colloquy, the court found that Mosley had knowingly and intelligently waived his right to counsel and could proceed without an attorney.
Six months later, Mosley represented himself at his jury trial. The State called a number of witnesses, including Craig, T.Y., two Alaska State Troopers, and two of Craig's treating physicians. Mosley cross-examined each of the State's witnesses and called one witness of his own.
On three occasions, evidence that Mosley wished to introduce was not admitted after the court sustained objections from the State. First, the court did not allow Mosley to question the two troopers about the contents of an Alaska Supreme Court opinion. Second, the court prevented Mosley from asking a social worker about a child protection investigation involving Craig. Third, the court did not permit Mosley to ask Craig's ex-husband certain questions about their child custody arrangements and past restraining orders. Mosley ultimately did not call the social worker or Craig's ex-husband to testify.
The jury found Mosley guilty of all nine counts and also found several aggravating factors.
This appeal followed.
The trial court did not err in finding that Mosley knowingly and intelligently waived his right to counsel
Mosley's first argument is that he did not knowingly and intelligently waive his right to counsel. According to Mosley, while the trial court explained the benefits of counsel and risks of self-representation, it failed to ensure that he understood those benefits and risks before allowing him to represent himself.
Under both federal and Alaska law, criminal defendants are afforded the right to represent themselves in criminal proceedings. However, before a court permits the defendant to proceed without counsel, the court must ensure that the defendant's waiver of their right to counsel is knowing and voluntary. Because Mosley contends that the court did not fulfill this duty, we begin our analysis by describing in some detail the circumstances under which the court permitted Mosley to proceed without an attorney.
Faretta v. California, 422 U.S. 806 (1975) (recognizing the right to self-representation in state criminal proceedings under the United States Constitution); McCracken v. State, 518 P.2d 85 (Alaska 1974) (recognizing the right to self-representation under the Alaska Constitution).
Faretta, 422 U.S. at 835; McCracken, 518 P.2d at 91.
Approximately three months after the Public Defender Agency was appointed to represent him, Mosley's attorney notified the court that Mosley had decided to represent himself. The court accordingly scheduled a representation hearing. At the hearing, the court asked Mosley, the first of many times, if he wanted to represent himself, to which Mosley replied, "Yes, please." The court then warned Mosley that it is "never a good idea" for anyone to represent themself and provided a lengthy explanation of the advantages of counsel and the disadvantages of self-representation.
The court explained that defense attorneys receive specialized training in law and procedure. The court provided a comprehensive overview of how an attorney could assist Mosley with every aspect of the trial process: selecting a defense, filing pretrial motions, obtaining and reviewing discovery, obtaining expert witnesses, selecting an unbiased jury, admitting favorable evidence, objecting to inadmissible evidence, cross-examining witnesses, drafting jury instructions, and persuasively arguing his case to the jury. After the court explained each benefit that counsel could provide, it paused and waited for Mosley to respond. Each time, Mosley replied affirmatively with a single word (e.g., "Yes," "Uh-huh," "Okay," or "Right").
The trial court next informed Mosley of the "dangers" of self-representation. It explained that these dangers included: not filing necessary motions before and during trial, not recognizing viable defenses, selecting a biased jury, allowing the admission of "damaging evidence," and inadvertently making "damaging admissions" before the jury. Additionally, the court warned Mosley that he was "more likely to be convicted," and less likely to successfully appeal his conviction, if he represented himself.
After advising Mosley of these dangers, the following exchange occurred:
The Court: So have I changed your mind yet?
Mosley: No, Your Honor.
The Court: Okay. All right. I'm trying.
Mosley: But thank you. No.
The Court: You're welcome.
Mosley: I do appreciate it.
The court next asked Mosley to describe his educational background. Mosley responded that he had completed high school, attended three years of college, and received various licenses and certificates. Mosley added that he had run "a few businesses," could speak Spanish, and knew sign language.
Then, the court asked Mosley questions about the charged offenses and his understanding of the law. Mosley indicated that he understood the level of the charged offenses, their elements, the possible sentences he could receive if convicted, and the burden of proof. He also indicated that he had reviewed the criminal rules and the rules of evidence.
When the court inquired about Mosley's legal experience, Mosley admitted that he had never watched a full trial or represented himself. Despite this lack of experience, Mosley insisted that he could abide by the court's instructions and maintain appropriate decorum.
The court warned Mosley that if he proceeded without appointed counsel, the court would not make motions or objections on his behalf and everything would be "on [him]." Mosley replied that while he was "quite nervous" about proceeding pro se, he had weighed his options and felt that he would benefit from directly addressing the jury.
Following this lengthy exchange, the court ruled that Mosley could represent himself. It found that Mosley understood the benefits of counsel and appreciated the risks of proceeding without an attorney. It also found that Mosley was not waiving counsel for an improper purpose, and that he had the minimal skills necessary to present his case. The court reminded Mosley that if he later changed his mind, he could notify the court and the court would provide an attorney for him.
After this, in many subsequent pretrial hearings, the trial court asked Mosley if he had changed his mind, advised him that he would be better off with an attorney, and offered to reappoint the Public Defender Agency. Each time, Mosley declined this offer and reaffirmed his desire to represent himself.
Under Alaska law, criminal defendants have a constitutional right to represent themselves at trial if they "clearly and unequivocally" declare their desire to proceed without an attorney, and "voluntarily and intelligently elect[] to do so." In McCracken v. State, the Alaska Supreme Court recognized this constitutional right to self-representation and explained that three factors should guide a judge's decision regarding a defendant's request for self-representation: (1) whether the defendant understands what they are giving up by declining the assistance of counsel, (2) whether the defendant is capable of presenting their case in a rational and coherent manner, and (3) whether the defendant is willing and able to act "with at least a modicum of courtroom decorum."
E.g., Johnson v. State, 188 P.3d 700, 703 (Alaska App. 2008) (citing Gladden v. State, 110 P.3d 1006, 1009 (Alaska App. 2005)).
Falcone v. State, 227 P.3d 469, 472 (Alaska App. 2010) (quoting Faretta, 422 U.S. at 807).
McCracken, 518 P.2d at 91-92.
On appeal, Mosley does not challenge the trial court's determination that he was "capable of presenting his allegations in a rational and coherent manner," nor does he claim that he was unwilling to conduct himself in the courtroom "with . . . a modicum of decorum." Mosley also does not dispute that the trial court explained the implications of waiving counsel and that he provided affirmative responses during the court's advisement. Instead, Mosley argues that the court did not adequately ensure that he understood those implications - according to Mosley, the trial court should have required him to provide more than one-word responses when it questioned him about his understanding of the implications of waiving counsel. Mosley also broadly contends that a defendant's waiver of counsel is inadequate unless the court engages in a detailed colloquy that goes beyond an advisement and instead includes substantive, detailed responses from the defendant clearly demonstrating their understanding of the court's advisement.
Id.
Id. at 92.
But contrary to Mosley's contention, neither Alaska nor federal law requires any particular colloquy as a precondition to waiving appointed counsel. Rather the overriding question is whether the record as a whole is sufficient to show the defendant freely declined counsel in accordance with the principles identified in McCracken.
See id. at 91-92 (holding that the court must explain "in some detail" the advantages of representation so the defendant "understands precisely what he is giving up by declining the assistance of counsel[,]" but not requiring any specific colloquy); Faretta, 422 U.S. at 835 (holding that the defendant must be "made aware of the dangers and disadvantages of self-representation" so their choice is "made with eyes open[,]" but not requiring any specific colloquy).
See Kelly v. State, 663 P.2d 967, 969-70 (Alaska App. 1983) (citing McCracken, 518 P.2d at 91-92; Faretta, 422 U.S. at 835).
And though we agree with Mosley that detailed narrative responses from the defendant, in addition to a robust advisement, may be needed in some cases to ensure a knowing and intelligent waiver, his was not such a case.
See 3 Wayne R. LaFave et al., Criminal Procedure § 11.5(c), at 850-52 (4th ed. 2015).
Here, the court was addressing an educated defendant who told the court that he had reviewed the criminal rules and rules of evidence. The court provided a comprehensive explanation of the implications of self-representation, including the benefits of an attorney and risks of self-representation. Throughout this explanation, the court paused for Mosley to affirmatively acknowledge what it was saying. At the end of the hearing, Mosley told the court that he was "quite nervous" about representing himself, demonstrating that he understood the difficulty and the danger of proceeding without a lawyer. He told the court that he had considered his options and still wished to proceed without counsel. And although the court revisited this issue several times in subsequent hearings, Mosley persisted in his decision to forego counsel.
Under these circumstances, we conclude that the trial court's colloquy with Mosley was sufficient and that the court did not err in finding that Mosley knowingly waived his right to an attorney.
The trial court did not err by failing to sua sponte appoint standby counsel
Mosley alternatively argues that, even if his waiver of counsel was valid, the trial court erred by not offering to appoint standby counsel to assist him. Mosley's claim is based on his interpretation of the Alaska Supreme Court's 1974 opinion in McCracken v. State. According to Mosley, McCracken requires trial courts to offer standby counsel to all indigent defendants who waive their right to counsel. Alternatively, Mosley contends that courts have discretion to appoint standby counsel, and that the trial court abused its discretion in his case by not doing so.
We begin by noting that there is some confusion over the proper function of standby counsel. As the West Virginia Supreme Court of Appeals has explained, "the ambiguity over the role of standby counsel arises, at least in part, from the variety of ways courts have defined the role." Furthermore, courts use many different terms in describing such counsel (e.g., "standby counsel," "advisory counsel," and "hybrid representation"), and it is not always clear whether these terms are intended to have "similar, or distinctly different, meanings." But in this case, the type of "standby counsel" that Mosley contends should have been provided to him is one who would be "available for consultation" - acting as an advisor or assistant - but who would not exercise control over the defense.
State v. Powers, 563 S.E.2d 781, 787 (W.Va. 2001) (citing McKaskle v. Wiggins, 465 U.S. 168 (1984) (permitting standby counsel to participate actively at trial); Farretta, 422 U.S. at 835 n.46 (indicating standby counsel would generally "aid the accused if and when the accused requests help, and . . . be available to represent the accused in the event that termination of the defendant's self-representation is necessary"); United States v. Lawrence, 161 F.3d 250 (4th Cir. 1998) (restricting standby counsel's advice to procedural matters); United States v. Patterson, 42 F.3d 246, 248 (5th Cir. 1994) (per curiam) (defining "advisory counsel" as "an attorney who would be limited to assisting [the defendant] in technical matters"); State v. Blankenship, 447 S.E.2d 727, 731-733 (N.C. 1994) (approving of the trial court's explanation that standby counsel could answer the defendant's legal questions and would resume the defense if the defendant decided to relinquish right of self-representation, but would not be permitted to otherwise participate in trial, e.g., to object to incompetent evidence or appear on behalf of defendant)).
Id. (first comparing McKaskle, 465 U.S. 168 (implying that hybrid representation refers to counsel being permitted to participate actively in trial rather than simply rendering advice to defendant), with State v. Overholt, 601 N.E.2d 116 (Ohio App. 1991) (reasoning that a pro se defendant's request that counsel take over after a trial is underway amounts to "hybrid representation"); then citing Patterson, 42 F.3d at 248 (defining "advisory counsel" as "an attorney who would be limited to assisting [the defendant] in technical matters," and referring to the arrangement as "hybrid representation"); and then citing Locks v. Sumner, 703 F.2d 403 (9th Cir. 1983) (referring to "advisory counsel" as a form of "hybrid representation")).
Neither the Alaska nor the United States Constitution gives indigent criminal defendants a constitutional right to standby counsel, and Mosley does not claim otherwise. Rather, Mosley argues that in McCracken, the supreme court exercised its "supervisory authority" to require that standby counsel be offered to indigent defendants whenever courts allow them to exercise their right to represent themselves at trial.
Ortberg v. State, 751 P.2d 1368, 1375 (Alaska App. 1988); Public Defender Agency v. Superior Court, 343 P.3d 914, 915-16 (Alaska App. 2015). Further, it appears that no other state affords such a right. See 3 Wayne R. LaFave et al., Criminal Procedure § 11.5(f), at 887-88 (4th ed. 2015).
We do not construe McCracken as Mosley does. In McCracken, the supreme court considered whether an indigent defendant applying for post-conviction relief has a constitutional right to self-representation. Noting the high value that Alaska places on "autonomy of the individual and his freedom of choice[,]" the court held that criminal defendants have a constitutional right to proceed pro se. It then described the three factors that courts should use in determining whether a criminal defendant is capable of self-representation, and concluded that a "comparable procedure should be followed in post-conviction proceedings."
McCracken, 518 P.2d at 85.
Id. at 91.
Id. at 91-92.
The court observed that if a post-conviction relief case requires an evidentiary hearing on the application, and the applicant is present for the hearing, the applicant
should be given the option of having legal counsel available for consultation. Indeed, where the court is not completely satisfied that the [applicant] is capable of pro se representation, it is within [the court's] sound discretion to insist that the [applicant] accept consultative assistance by appointed counsel.
Id.
Mosley argues this passage of McCracken requires trial courts to offer standby counsel not only to indigent post-conviction relief applicants who are permitted to represent themselves at an evidentiary hearing, but to all indigent defendants who are permitted to represent themselves in an original criminal case.
But this passage is dicta. Furthermore, its plain language does not require courts to offer standby counsel to all indigent criminal defendants who choose to represent themselves. Indeed, in the decades following McCracken, this Court has repeatedly stated that pro se defendants have no right to demand advisory counsel.
Public Defender Agency, 343 P.3d at 915-16 (citing Ortberg, 751 P.2d at 1375; Annas v. State, 726 P.2d 552, 557 (Alaska App. 1986)); Grim v. State, 2016 WL 482543, at *3 (Alaska App. Feb. 3, 2016) (unpublished).
Mosley next argues that, even if courts are not required to offer standby counsel to all self-represented indigent defendants, the trial court should have exercised its discretion to do so in his case. Mosley notes that he twice indicated a willingness to have an attorney appointed as co-counsel, and he argues that, for this reason, the trial court abused its discretion in failing to instead appoint standby counsel for him.
We note that, while Mosley made two passing references to his willingness to "accept co-counsel," he did not specifically request the appointment of standby counsel. We accordingly review this claim for plain error.
Trial courts have "broad discretion" to appoint, or decline to appoint, standby counsel. But before a trial court can appoint standby counsel in a criminal case, the court first must ensure that the defendant is capable of knowingly waiving the right to counsel - i.e., that the defendant is able to represent themself without assistance.
In Ortberg, we explained that defendants do not have a constitutional right to hybrid representation, and courts have "broad discretion to deny hybrid representation or co-counsel status." 751 P.2d at 1375 (citing Annas, 726 P.2d at 557, and Cano v. Anchorage, 627 P.2d 660, 664 (Alaska App. 1981)).
See Burks v. State, 748 P.2d 1178, 1181 (Alaska App. 1988) (explaining "it is only when a person is first found capable of waiving his right to counsel and representing himself under the standards enunciated in Faretta and McCracken and elects to do so, that the court may appoint advisory counsel").
We have already concluded that the trial court properly found that Mosley understood what he was giving up by proceeding without an attorney and that he was capable of presenting his case in a rational and coherent manner. Furthermore, Mosley never directly asked the court for standby counsel. Although most defendants will be incapable of representing themselves with the same technical skill of an attorney, the right to "represent oneself is guaranteed . . . despite the fact that its exercise will almost surely result in detriment to both the defendant and the administration of justice."Thus, when a defendant knowingly chooses to proceed without counsel, the trial court will understandably expect that the defense will be undermined by this choice, and the court's failure to sua sponte offer standby counsel will rarely be an abuse of discretion.
Faretta v. California, 422 U.S. 806, 834 (1975); see Hinshaw v. State, 515 P.3d 129, 139 (Alaska App. 2022) (citing Imani v. Pollard, 826 F.3d 939, 944 (7th Cir. 2016)).
State v. Fritz, 585 P.2d 173, 177 (Wash. App. 1978) (quoting People v. Salazar, 141 Cal.Rptr. 753, 761 (Cal.App. 1977)).
See, e.g., Faretta, 422 U.S. at 834 n.46; see also McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984); United States v. Bisong, 645 F.3d 384, 396 (D.C. Cir. 2011); Simpson v. Battaglia, 458. F.3d 585, 598 (7th Cir. 2006); U.S. ex rel. Smith v. Pavich, 568 F.2d 33, 38 (7th Cir. 1978); United States v. Cochrane, 985 F.2d 1027, 1029 (9th Cir. 1993); United States v. Roggio, 863 F.2d 41, 43 (11th Cir. 1989); People v. Graves, 480 N.E.2d 1142, 1145 (Ill.App. 1984).
In the present case, Mosley has not identified anything regarding the adverse impact his self-representation had on his defense that he was not warned about leading up to his trial - such that the trial court should have determined on its own to override Mosley's choice to represent himself - and we accordingly conclude that the trial court did not plainly err by failing to appoint standby counsel.
The trial court did not abuse its discretion by preventing Mosley from questioning two witnesses about an appellate decision
Mosley next argues that the trial court violated his constitutional right to confront the witnesses against him. According to Mosley, the court impermissibly restricted his ability to cross-examine two witnesses about a 1980 Alaska Supreme Court opinion, Keith v. State.
See U.S. Const. amend. VI; Alaska Const., art. I, § 11.
Keith v. State, 612 P.2d 977 (Alaska 1980).
Mosley brought up Keith in the context of discussing gunshot residue (GSR) testing. At trial, the State elicited evidence that Mosley wielded and discharged a firearm inside Craig's house. In his defense, Mosley denied handling a firearm altogether and accused Craig of lying to the police. Mosley contended that had GSR testing been performed, it would have revealed that he did not handle a firearm, proving his innocence.
Mosley attempted to advance this argument twice, each time during cross-examination of Alaska State Troopers who came to Craig's house the night of the incident. The two cross-examinations followed a similar pattern.
On re-cross examination of Alaska State Trooper Craig Markiewicz, Mosley asked Markiewicz why the officers did not do a GSR test on him. Markiewicz replied that such tests were "inconclusive at best," and that law enforcement officers typically do not carry GSR test kits with them. Markiewicz explained that he had been told GSR tests can be positive even if the person tested had not fired or touched a firearm for several days to weeks, so a positive test would not have helped determine whether Mosley fired the firearm on the night of his arrest. When Mosley challenged this assertion, the trooper added that he did not have experience with GSR tests, nor did he receive any training on them, so he could not speak to their level of sensitivity.
Mosley next tried to ask Markiewicz about case law, referencing Keith. The State objected as to relevance, and noted Markiewicz was not qualified to give a legal opinion. The court asked Markiewicz if he was familiar with that case, and when Markiewicz stated he had "never heard of it," the court sustained the State's objection.
The court did not make a ruling on the record, but asked Mosley if he had any "other questions" for the state trooper, implying Mosley could not ask about the court case.
During the State's direct examination of Trooper Dugger Cook, Cook testified that the troopers did not test the firearm for fingerprints or DNA. He explained that Craig had told them that Mosley regularly handled and used the firearm, so testing it would not tell them whether Mosley had touched the firearm that evening. Cook also explained that he had been a police officer for eighteen years, and that early in his career he had conducted GSR tests in almost every firearm case, but at some point, the laboratory told him to stop, because such tests were "at best . . . inconclusive." Cook explained that he had been told gunshot residue can stay on a person's hands for forty-five days, so it is not useful in determining when someone handled a firearm. In summary, Cook testified that he felt, given the information they had, a GSR test would not have been helpful to their investigation.
During cross-examination, Cook clarified that he was not an expert on gunshot residue and could not give a factual definition of this term. Mosley asked if Cook was aware that GSR was used "all across the United States," but Cook said he could only speak to Alaska investigative techniques. Mosley next attempted to ask if Cook was aware of the supreme court case, Keith, that he had tried to ask Markiewicz about earlier, but the State objected that it was not appropriate to impeach an officer with legal precedent, and the trial court sustained the objection. Mosley then claimed that the supreme court had "deemed that GSR is significant," but the trial court continued to sustain the objection. Mosley also tried to ask Cook if he was allowed to give an opinion during testimony if he was not an expert, and the court sustained an objection from the State that Mosley was asking the witness for a legal conclusion.
On appeal, Mosley frames the trial court's ruling as an infringement of his rights under the confrontation clause. But as we just noted, the court did not limit Mosley's ability to cross-examine the troopers about GSR testing except by barring questions about Keith. Furthermore, Mosley misapprehends the scope of his rights under the confrontation clause. While a defendant has a constitutional right to cross-examine opposing witnesses, the content and manner of the examination are subject to the Alaska Rules of Evidence. Thus, if the defendant's questions are improper or seek to elicit inadmissible evidence, the trial court may properly preclude the questions.
See Brown v. State, 779 P.2d 801, 804 (Alaska App. 1989) ("Brown's right to confrontation certainly restricted the ordinarily broad scope of the trial court's discretion . . . . Nevertheless, the analytical framework governing the trial court's decision on admissibility remained . . . [Alaska] Evidence Rule 403."); Kvasnikoff v. State, 674 P.2d 302, 305 (Alaska App. 1983) ("[T]he right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process." (quoting Chambers v. Mississippi, 410 U.S. 284, 295 (1973))).
See, e.g., Brown, 779 P.2d at 804; see also Demello v. State, 2020 WL 4813669, at *3 (Alaska App. Aug. 19, 2020) (unpublished); Lemieux v. State, 2019 WL 12043986, at *2 (Alaska App. Dec. 11, 2019) (unpublished).
Keith v. State is a 1980 supreme court opinion discussing, in relevant part, whether a police officer's inaccurate grand jury testimony about the time at which negative swab samples for GSR testing were taken from a deceased body required reversal of the defendant's conviction. In that case, the victim's hands had been swabbed eight to nine hours after his death, but the officer testified that the swabs were taken several hours earlier. The supreme court determined that the police officer's misrepresentation was not material because the laboratory technician testified that GSR tests generally were reliable for a "much longer time even days" when the sample was taken from a corpse. The opinion did not comment on the prevalence, reliability, or significance of GSR testing in Alaska or anywhere else, aside from noting that it was "significant" that the deceased victim tested negative for GSR because it contradicted the defendant's testimony that he and the victim had struggled over two different firearms.
Keith, 612 at 980.
Id.
Id. at 981.
Id. at 980.
Mosley's purpose in asking the troopers about Keith was to establish that an adequate police investigation would have included GSR testing. But the efficacy or prevalence of GSR testing was not discussed in Keith, and accordingly there was nothing about the text of that opinion that would have been relevant to whether such testing should have been done in Mosley's case. Furthermore, the supreme court decided Keith almost 40 years before Mosley's trial, but Mosley did not establish that the science behind GSR testing, or its utility to law enforcement, had remained unchanged. Indeed, the troopers testified that such testing is no longer routine in gunshot cases. For these reasons, the court did not abuse its discretion in refusing to permit Mosley to question the officers about the text of the Keith opinion.
See Alaska R. Evid. 402 ("Evidence which is not relevant is not admissible.").
The trial court did not abuse its discretion by not furnishing Mosley with an alternative theory of admissibility for certain proffered evidence
Mosley next argues that the trial court erred in its "duty" to help him find a viable theory for why testimony about an Office of Children's Services (OCS) investigation involving Craig was admissible. Mosley acknowledges that the court did not err in ruling that the evidence was inadmissible for the reason Mosley advanced at trial. But according to Mosley, trial courts have an affirmative legal duty to help pro se litigants introduce evidence at trial, and the court violated that duty in his case.
At trial, Mosley attempted to question an OCS caseworker who previously worked on a child protection case involving Craig. The State objected on relevance grounds, believing that Mosley was calling the caseworker in order to introduce self-serving hearsay statements that Mosley had made during the OCS investigation. In response, Mosley argued that the caseworker's testimony was relevant to show that Craig had told the caseworker that the children's behavior did not change when Mosley "entered the picture" - i.e., to impeach Craig's trial testimony that her children's behavior changed after Mosley assaulted her.
Before ruling on the State's objection, the trial court questioned the OCS caseworker outside the presence of the jury. The caseworker clarified that she had not been in contact with Craig or Craig's children since the OCS investigation ended and was unaware whether their behavior had changed. Initially, the court ruled that, despite the "very collateral" nature of the caseworker's anticipated testimony, it would allow Mosley to call the caseworker as a witness over the State's objection. But when Mosley asked if the caseworker could testify about what other people had told her, the court replied that such statements would not be relevant, and Mosley did not ultimately call the caseworker to testify.
On appeal, Mosley does not renew the theory of relevance he made in the trial court. Rather, Mosley advances a new argument for why the OCS caseworker's testimony was relevant: to show that Craig "had a strong motive to fabricate her accusations against [Mosley]." Mosley concedes that he did not raise this argument in the trial court. But according to Mosley, the trial court was under a legal obligation to help him develop a viable theory of admissibility because he was a pro se litigant.
Under Alaska law, judges must inform self-represented civil litigants of the proper procedure they should use to accomplish their intended actions. But judges also have a duty to maintain impartiality and accordingly are forbidden from providing substantive assistance to the litigants. We thus conclude that the trial court had no duty to assist Mosley by developing an alternative theory for admitting the caseworker's testimony, and we reject this claim of error.
E.g., Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987) (explaining that a "trial judge should inform a pro se litigant of the proper procedure for the action he or she is obviously attempting to accomplish").
Rae v. State, Dep't of Corr., 407 P.3d 474, 479 (Alaska 2017) (cautioning that judges must "be careful to maintain their impartiality" and "may not act as advocates for pro se litigants on substantive issues").
The State presented sufficient evidence for the jury to convict Mosley of third-degree assault for conduct directed at T.Y.
Mosley next argues that insufficient evidence supported his conviction for third-degree assault of T.Y. To establish that Mosley was guilty, the State was required to prove beyond a reasonable doubt that Mosley "recklessly place[d] [T.Y.] in fear of imminent serious physical injury by means of a dangerous instrument." On appeal, Mosley contends that the evidence was insufficient to establish (1) that T.Y.'s subjective fear of injury was reasonable, and (2) that Mosley recklessly disregarded the risk that his conduct would place T.Y. in fear of imminent physical injury.
AS 11.41.220(a)(1)(A).
When we evaluate the sufficiency of the evidence, we are required to view the evidence - and all reasonable inferences arising from that evidence - in the light most favorable to the jury's verdict and ask whether a reasonable fact finder could have found the defendant guilty beyond a reasonable doubt. We do not evaluate the weight of the evidence or witness credibility, as those are questions for the fact finder. A reversal is warranted if no reasonable juror could have concluded that the defendant was guilty beyond a reasonable doubt.
Iyapana v. State, 284 P.3d 841, 848-49 (Alaska App. 2012) (citing Morrell v. State, 216 P.3d 574, 576 (Alaska App. 2009)).
Morrell, 216 P.3d at 576.
Id.
At trial, T.Y. testified that he awoke to the sounds of Craig screaming and an alarm going off. T.Y. went downstairs to check on his mother, and he saw Mosley wielding a gun by the door as his mother fled from the home. As T.Y. watched, Mosley grabbed Craig and dragged her into a bedroom. From his position in the bedroom doorway, T.Y. saw Mosley point the gun at Craig while strangling her. T.Y. testified that he was scared that Mosley would first shoot Craig and then shoot him. Viewing the evidence in the light most favorable to upholding the verdict, we conclude that a reasonable juror could have concluded that T.Y.'s fear that Mosley was about to shoot him was a reasonable response to Mosley's actions.
Mosley also argues the evidence did not establish that he apprehended that his conduct would place T.Y. in fear of injury. But there was no dispute that Mosley was aware that Craig's children were asleep upstairs when he began the attack on their mother. Furthermore, T.Y. was standing at the foot of the stairs when Mosley forced Craig back into the house while wielding the handgun and threatening to leave Craig with "nothing left." Mosley then dragged Craig past T.Y. into the bedroom. A reasonable juror could conclude that when Mosley subsequently pointed the gun at Craig, he was aware of and disregarded a substantial and unjustifiable risk that this would cause T.Y. to believe that both he and Craig were about to be shot by Mosley. We accordingly conclude that the evidence was sufficient to establish that Mosley committed the offense of third-degree assault.
Alaska's third-degree assault statute is not overbroad as applied to Mosley's conduct directed at T.Y.
Mosley raises one additional challenge to his conviction for assaulting T.Y. Specifically, Mosley argues that AS 11.41.220(a)(1)(A) is unconstitutionally overbroad as applied to this conviction because he did not "direct any of his threatening or assaultive conduct at T.Y." or "foreseeably place T.Y. at risk of injury." As support for his assertion, Mosley relies on the reasoning in State v. Watts.
State v. Watts, 421 P.3d 124 (Alaska App. 2018).
In Watts, a drunk driver nearly ran over a pedestrian and his infant son, but an accident was avoided when the driver swerved at the last moment. Watts was indicted for third-degree assault under AS 11.41.220(a)(1)(A) for placing the pedestrian in fear of imminent physical injury by means of the vehicle. Watts later moved to dismiss the indictment, arguing that the statute was unconstitutionally overbroad. The trial court agreed, ruling that AS 11.41.220(a)(1)(A) is unconstitutional unless a defendant is both subjectively aware of the victim's presence "and purposefully direct[s] their conduct at the victim," factors the court deemed were not met in Watts's case.
Id. at 126.
Id.
The State petitioned for review, and this Court reversed the dismissal of Watt's indictment and rejected the trial court's two-factor test. We expressed "no hesitation" that the statute was constitutional as applied to Watts. However, we explained in dicta that the statute may be unconstitutional if the defendant were charged with placing a person in fear "who is not within the 'zone of danger' that defines the defendant's duty of care - i.e., not among the group of people who are foreseeably endangered by the defendant's conduct."
Id. at 127.
Id. at 128 (cleaned up).
Relying on this dicta from Watts, Mosley contends that T.Y. was not among the group of people Mosley could reasonably foresee could be in danger when he assaulted Craig. We disagree. T.Y. had just seen his mother run from the house and had watched Mosley drag her back inside, strangling her and pointing the gun at her. And unlike a bystander unwittingly observing erratic driving from a safe distance, T.Y. was standing in the doorway of the bedroom while Mosley pressed a handgun to Craig's neck with one hand while strangling her with his other hand. We accordingly reject Mosley's contention that the third-degree assault statute is overbroad as applied to his assault of T.Y.
Conclusion
The judgment of the trial court is AFFIRMED.