Opinion
A-13486
03-02-2022
ALVIN ELIA WASSILLIE, Appellant, v. STATE OF ALASKA, Appellee.
Dan Bair, Law Office of Dan Bair, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Terisia K. Chleborad, 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UNPUBLISHED See Alaska Appellate Rule 214(d)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. 3AN-16-07582 CR, Anchorage, Dwayne W. McConnell, Judge.
Dan Bair, Law Office of Dan Bair, Anchorage, under contract with the Office of Public Advocacy, for the Appellant.
Terisia K. Chleborad, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Wollenberg, Harbison, and Terrell, Judges.
MEMORANDUM OPINION
HARBISON JUDGE
Alvin Elia Wassillie was charged with first-degree sexual assault, attempted first-degree sexual assault, second-degree sexual assault, second-degree assault, and fourth-degree assault against a woman identified as D.J. A jury found Wassillie guilty of second-degree assault and fourth-degree assault, and he was acquitted of all three sexual assault charges. The trial court merged the two physical assault counts into a single conviction for second-degree assault, and Wassillie now appeals that conviction. On appeal, Wassillie contends that the trial court erred by refusing to allow him to impeach D.J. with evidence that she told her boyfriend she was going to buy crack cocaine on the night of the assault. Because we conclude that any error in excluding this evidence was harmless beyond a reasonable doubt, we affirm Wassillie's conviction.
AS 11.41.210(a)(1) and AS 11.41.230(a)(1), respectively.
AS 11.41.410(a)(1), AS11.41.410(a)(1)&AS 11.31.100(a), and AS 11.41.420(a)(1), respectively.
Background facts and proceedings
At trial, D.J. testified that one night in September 2016, she was walking along Ingra Street in Anchorage, on her way to meet up with her boyfriend, Allen Chikoyak. According to D.J., she passed a man who was unknown to her (later identified as Wassillie), who then tackled her, pulling her off the sidewalk and causing her to tumble down a hill into a wooded area. She testified that she struggled with Wassillie for over forty-five minutes, and during that time, he repeatedly assaulted her, punching her in the face and choking her with his forearm. According to D. J., Wassillie also pulled off her pants and attempted to sexually assault her. (D.J. told the police that she had been raped, but at trial she testified only that Wassillie's penis "maybe" slightly penetrated her labia.)
At the time of the incident, D.J. called both 911 and Chikoyak. Her call to 911 was very brief; she told the dispatcher, "I'm - I'm being raped," but then the call disconnected. In her call to Chikoyak, she said that she "almost got raped," but then her phone cut out. Chikoyak called 911 and reported the incident.
The police responded to the call and recovered clothing and D.J.'s cell phone in a wooded area downhill from Ingra Street. The police also contacted and interviewed both D.J. and Wassillie.
Wassillie was stumbling and slurring his words. He was not wearing a shirt, and his right eye was swollen and had a cut beneath it. He also had blood on his lips, an abrasion and cuts on his upper arm and elbow, and scratches on his stomach and back. He told the police that he had taken drugs he got from a woman named "D." whom he had met that evening.
D.J. had some bruising to her face, nose, and finger, a cut to her nostril, injuries to her shin and knee, and red marks and scratches on her throat. She declined to participate in a sexual assault response team (SART) exam, and although male DNA was found on a swab of D.J.'s hands, there was not a sufficient amount to test it.
Wassillie was arrested and charged with sexually and physically assaulting D.J. Prior to trial, Wassillie filed a motion in limine asking to introduce evidence about D.J. that he argued was admissible to show D.J.'s bias and to impeach her anticipated trial testimony. The trial court considered this motion over the course of the trial, and ultimately granted the majority of Wassillie's requests. The court allowed Wassillie to introduce evidence that: (1) although D.J. claimed that Wassillie was a stranger to her, Wassillie told the police that a woman named D. had given him some kind of drugs; (2) D.J. was receiving SSI disability benefits and housing benefits, and she could lose her benefits if she was discovered selling or using drugs; (3) D.J. was on probation at the time of the incident, and she could have had her probation revoked and up to 170 days of jail time imposed if she was selling or using drugs; (4) D.J. was still on probation at the time of trial; (5) D.J. was the only eyewitness to the crimes in this case; and (6) D.J. repeatedly refused to participate in a SART exam. The jury also heard that D.J. suffered from bipolar disorder and was taking medication for that condition.
In addition, the court allowed Wassillie to cross-examine D.J. by asking her whether she was trying to obtain illegal drugs on the evening in question and also whether she had told anyone that she was trying to do so. However, after D.J. denied this, the court did not permit Wassillie to present evidence that D.J. told Chikoyak that she was trying to obtain crack cocaine that night. It is this ruling that is the basis for Wassillie's appeal.
The jury ultimately found Wassillie guilty of second-degree assault for strangling D.J. and fourth-degree assault for recklessly causing physical injury to her, but Wassillie was acquitted of the sexual assault charges. The trial court merged the two physical assault charges into a single second-degree assault conviction, and Wassillie now appeals that conviction.
Why we affirm Wassillie's conviction
Wassillie argues that the trial court erred by prohibiting him from introducing evidence that D.J. told Chikoyak that she was planning to obtain crack cocaine on the night of the assault. According to Wassillie, this information was central to his case and its exclusion was prejudicial, requiring reversal of his conviction.
Wassillie claims that the information was relevant to show D.J.'s bias and also her state of mind - specifically, that it was her intention to obtain drugs on the evening in question. According to Wassillie, this information would support the defense theory that he was not a random stranger who attacked D.J. and, instead, that D.J. met up with Wassillie in order to obtain and use drugs. He asserts that because D.J. could have her probation revoked and could lose her government benefits if she used or sold drugs, he should have been permitted to introduce her statement to Chikoyak in order to show her bias.
In opposition, the State argues that the probative value of the proffered evidence was minimal and that the trial court correctly excluded it. The State points out that if D.J. was concerned about having her probation revoked and losing her benefits, it is illogical that she would contact the police to report the incident between her and Wassillie. The State asserts that if the incident between D.J. and Wassillie was not an assault and instead was a drug transaction, D.J. would not have reported the incident at all.
The trial court disagreed with Wassillie that the statement was necessary to establish that D.J. was biased. Although the trial court found that the evidence was relevant and fell within a hearsay exception, it nevertheless excluded the evidence, finding that the evidence was cumulative and had little probative value, particularly given that the court had allowed Wassillie to thoroughly explore D.J.'s bias and credibility through other evidence.
.See Alaska R. Evid. 403.
We question the court's exclusion of this evidence. It seems apparent that D.J.'s statement to Chikoyak was admissible as a prior inconsistent statement and that it supported Wassillie's defense. But, even assuming that the trial court erred in excluding the statement, we conclude that any error did not materially impede Wassillie's ability to present a defense, and was therefore harmless beyond a reasonable doubt.
.See Love v. State, 457 P.2d 622, 631 (Alaska 1969) (citing Chapman v. California, 386 U.S. 18, 24 (1967)); Trout v. State, 311 P.3d 296, 303 (Alaska App. 2016).
At trial, Wassillie's defense was focused primarily on the sexual assault charges. Wassillie's theory was that the incident was not a sexual assault but was instead a meeting to obtain and use drugs that D.J. wanted to hide from law enforcement. His attorney explored in some detail D.J.'s general biases and the inconsistencies in her accounts of the incident, and repeatedly proffered the disputed evidence to show that D.J. lied about being sexually assaulted to avoid possible probation revocation and loss of housing and SSI benefits. But the attorney asked D.J. very few questions about the physical assault. Similarly, the attorney's focus during closing argument was on the sexual assault allegations-and the jury ultimately acquitted Wassillie of these charges.
The State's case regarding the physical assaults was strong. There was significant evidence corroborating D.J.'s account, including the discovery of clothing and D.J.'s cell phone at the place where she alleged the assault took place, and photographs of the injuries to D.J.'s face, nose, and hands, as well as two scratches on her throat. The State also presented testimony from one of the investigating officers who stated that she had training in strangulation and had investigated many strangulation cases in the course of twenty-two years as an officer. According to this officer, D.J.'s injuries were consistent with strangulation.
Additionally, the evidence of Wassillie's injuries, including his bruised eye and abrasions on his stomach, arm, and elbow, were consistent with a struggle between two individuals.
Furthermore, the trial court's rulings allowed Wassillie to robustly attack D.J.'s credibility. The jury heard about the inconsistencies in D. J.' s on-scene statements and her testimony - in particular, that although D.J. denied knowing Wassillie and denied seeking or using controlled substances on the day of the incident, Wassillie told police that he had been given drugs by a person named D., whom he had met that evening. The jury also heard that D.J. took medication for bipolar disorder and that she could lose certain disability and public benefits if she were caught with drugs. And the jury heard about D.J.'s past crimes of dishonesty, that she had been trespassed from a nearby store, and that she was on probation at the time of trial with a suspended sentence of 170 days' incarceration and a $ 1, 000 fine that could be imposed should she violate her probation conditions by committing a jailable offense, e.g., selling or possessing a controlled substance.
Thus, Wassillie was able to thoroughly challenge D.J.'s credibility, and he also was able to establish that D.J. had a general probation-related bias on behalf of the State. While D.J.'s statement to Chikoyak, if viewed in isolation, could have shown that she was motivated to lie about being assaulted in order to cover up a drug transaction, the value of this evidence was diminished by the undisputed fact that it was D.J. herself who initiated contact with the police.
Accordingly, because Wassillie was able to develop his defense even without introducing the statement D.J. made to Chikoyak, we conclude that any error in excluding the evidence did not materially impede Wassillie's ability to present his defense.
See Trout, 377 P.3d at 303; Williams v. State, 480 P.3d 95, 103 (Alaska App. 2021) ("This was not a case where 'the jury did not otherwise receive information adequate to allow it to evaluate the bias and motives of a witness.'" (quoting Stumpf v. State, 749 P.2d 880, 901 (Alaska App. 1988))).
Conclusion
The judgment of the superior court is AFFIRMED.