Opinion
Court of Appeals No. A-10407.
March 2, 2011.
Appeal from the Superior Court, Fourth Judicial District, Bethel, Marvin Hamilton, Judge, Trial Court No. 4BE-07-18 CR.
Matthew Widmer, Angstman Law Office, Bethel, 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
Francis Xavier was convicted of sexual abuse of a minor in the second degree, a class B felony, for engaging in sexual contact with N.W. Xavier appeals, arguing that Superior Court Judge Marvin Hamilton erred in denying two mistrial motions that Xavier made during the course of his trial. We conclude that Judge Hamilton did not err in denying the mistrial motions. We accordingly affirm Xavier's conviction.
AS 11.41.436(a)(5)(A).
Factual and procedural background
On November 30, 2006, Elena Aluskak, who worked for the Child Advocacy Center in Bethel, interviewed N.W., who was fourteen at that time. N.W. reported that Francis Xavier had sexually abused her. (Xavier was N.W.'s stepfather and lived in the same house with her.) N.W. reported that Xavier first sexually assaulted her when she was seven years old. N.W. told Aluskak that, when she was thirteen years old, Xavier had sexually assaulted her by touching her private parts with his hands.
The day after Aluskak interviewed N.W., an Alaska State Trooper interviewed Xavier. In the interview, Xavier ultimately admitted that he had sexually abused N.W.
A grand jury indicted Xavier on two counts of sexual abuse of a minor in the second degree. One count charged Xavier with abusing N.W. when she was seven years old. The other count charged him with abusing N.W. when she was thirteen years old.
In a jury trial conducted by Superior Court Judge Marvin Hamilton, the jury convicted Xavier of sexually abusing N.W. when she was thirteen. But the jury acquitted him of sexually abusing her when she was seven.
Why we conclude that Judge Hamilton did not err in denying Xavier's mistrial motions
A trial court's decision as to whether a particular occurrence warranted a mistrial is reviewed for abuse of discretion because the trial court is in a better position than we are to determine whether the occurrence in question would tend to unfairly prejudice the jury, and whether steps short of a mistrial would be sufficient to alleviate that prejudice.
Roussel v. State, 115 P.3d 581, 585 (Alaska App. 2005); Roth v. State, 626 P.2d 583, 585 (Alaska App. 1981).
Xavier's first motion for a mistrial occurred following N.W.'s testimony. At trial, N.W. testified to a pattern of sexual abuse that began when she was seven years old. At one point in her testimony, she stated:
He's been touching me since I was growing up and I've been seeing him hitting the kids and yelling at them and even my little sister, and every time they drank, I'd see him hit my mom. I tried to stop them once, but he pushed me and I fell to the ground and — so bad I wanted to call the cops, but . . . I was . . . too scared."
At this point, Xavier objected that N.W. was testifying in a narrative form and was testifying about evidence that was inadmissible. In response, Judge Hamilton directed the prosecutor to avoid having N.W. give unstructured narrative responses. In the remainder of her testimony, N.W. testified that on the night that Xavier touched her when she was thirteen, he followed her around the house and "just couldn't stop" touching her on her vagina.
The morning following N.W.'s testimony, Xavier moved for a mistrial. Xavier argued that N.W. had testified about uncharged sexual conduct and he noted that N.W. had referred to various other acts of domestic violence. He also noted that N.W. had been extremely emotional and crying before and after her testimony and that she had been embraced by several people before and after she testified. Xavier claimed that the actions of these spectators and the admission of inadmissible testimony had irreparably prejudiced the fairness of his trial.
Judge Hamilton pointed out that Xavier had not made a timely objection to N.W.'s testimony. In response, Xavier explained that it was difficult to understand what N.W. was saying. Judge Hamilton stated that, if counsel had trouble hearing what N.W. was saying, it was hard to conclude that the jury was affected. He also found that it did not appear that the testimony had caused any outward sign of an emotional reaction from any juror. He found that the prosecutor had not engaged in any misconduct in the way that he had questioned N.W.
Judge Hamilton concluded that neither N.W.'s conduct in testifying, nor the reactions of people in the courtroom who were around N.W. before and after her testimony, was unfairly prejudicial. In denying Xavier's motion for a mistrial, Judge Hamilton offered to strike any inadmissible portions of N.W.'s testimony and to withdraw those portions from the jury's consideration with a cautionary instruction. Xavier did not ask the court to strike any portion of N.W.'s testimony or to give the jury a cautionary instruction at that time. But Xavier asked the court to leave open the option for a curative instruction at the end of the trial. At the end of trial, Xavier asked for and received a curative instruction.
We conclude that Judge Hamilton did not abuse his discretion in denying the mistrial motion. Under the facts of this case, N.W.'s relationship with Xavier was of critical relevance. N.W.'s testimony that Xavier had engaged in a pattern of sexual abuse since she was seven years old was an important part of her narrative and would normally be admissible and would provide context to her testimony. The same is true of a pattern of physical abuse, and N.W.'s testimony in this regard was very limited. Moreover, Judge Hamilton offered to strike the evidence and to give the jury a curative instruction. Xavier chose to have the court give a curative instruction at the close of trial.
Judge Hamilton also did not abuse his discretion by denying Xavier's motion for a mistrial based on N.W.'s emotional state and the actions of people in the courtroom before and after N.W.'s testimony. Judge Hamilton found that N.W.'s reactions to an obviously emotional and embarrassing situation were genuine and not unusual. He concluded that the actions of people in the courtroom were not unusual and would not unfairly prejudice Xavier. The record on appeal on these issues is obviously limited. Unlike Judge Hamilton, we cannot see N.W. testify and cannot observe how the spectators in the courtroom reacted. Judge Hamilton was in a much better position than we are to observe the behavior in question, and the limited record supports his findings.
Xavier argues that Judge Hamilton also erred in denying his second mistrial motion, made during N.W.'s mother's testimony. Mid-trial, when she was meeting with the prosecutor, N.W.'s mother said she had personally witnessed Xavier sexually abuse N.W. This assertion contradicted N.W.'s mother's prior statements that she had never suspected abuse. Judge Hamilton found that the State had not committed a discovery violation because, as soon as the State found out about this information, it promptly disclosed it. However, Judge Hamilton ruled that he would not allow the State to introduce N.W.'s mother's testimony that she had witnessed Xavier abuse N.W. because the State had not charged Xavier with this incident of abuse. He concluded that introduction of this evidence would prejudice Xavier's case by making him change his defense mid-trial. But Judge Hamilton told the prosecutor that if Xavier asked questions of N.W.'s mother that made this evidence sufficiently relevant, the prosecutor could renew his request to admit this evidence.
During the direct examination of N.W.'s mother, the prosecutor asked, "Are you afraid of Francis Xavier?" Xavier objected, and the court disallowed the question, finding the question irrelevant and prejudicial. During cross-examination, Xavier's attorney asked N.W.'s mother whether she told both state and defense investigators that she did not suspect that Xavier had committed any acts of abuse. N.W. responded that she did not remember telling them this. Judge Hamilton ruled that this questioning had opened the door to the prosecutor asking N.W.'s mother if she remembered telling the prosecutor the week before that she suspected abuse and that N.W. had reported the abuse to her. After N.W.'s mother testified that she did remember telling the prosecutor these things, the prosecutor asked the following questions:
Q: When [N.W.] complained about him touching her, was she crying when she told you that?
A: Yes.
Q: And, . . . had you seen Francis Xavier touch her? Had you caught him?
DEFENSE ATTORNEY: Objection, Your Honor.
THE COURT: Sustained.
Q: Is this — is the abuse — I'll rephrase. I'll ask in — a different question. Is this something that you saw yourself?
DEFENSE ATTORNEY: Objection, Your Honor.
A: Yes.
THE COURT: Sustained.
Xavier moved for a mistrial. In response, Judge Hamilton instructed the jury to "disregard the last questions."
Xavier argues that Judge Hamilton erred in denying the mistrial motion. Xavier first argues that the fact that the prosecutor asked N. W.'s mother whether she was afraid of Francis Xavier created undue prejudice. We conclude that N.W.'s mother's relationship with Francis Xavier and whether she was afraid of him could certainly be relevant to evaluating her testimony. Furthermore, Judge Hamilton sustained the objection.
Xavier also argues that he was unduly prejudiced when the prosecutor asked N.W.'s mother if she had seen Xavier touch N.W., and when N.W.'s mother answered "Yes."
The trial judge may have been mistaken when he suppressed the evidence that N.W.'s mother had witnessed Xavier abusing N.W. As just noted, Judge Hamilton found that the State had not violated any discovery rule, and even if it had, the preferred remedy for late discovered evidence is a continuance or a mistrial, not suppression of the evidence. But in any event, Judge Hamilton could conclude that admission of this evidence did not prejudice Xavier. The judge promptly sustained Xavier's objection and directed the jury to disregard the prosecutor's questions. N.W.'s mother's affirmative answer did not add any detail that was especially unfair. We conclude that Judge Hamilton cured any potential prejudice in this line of inquiry by instructing the jury to disregard the questions, and that he did not abuse his discretion when he denied the motion for a mistrial.
Friedmann v. State, 172 P.3d 831, 833 (Alaska App. 2007).
See Hamilton v. State, 59 P.3d 760, 769 (Alaska App. 2002) ("A timely curative instruction is presumed to remedy the unfair prejudice that might otherwise arise from inadmissible testimony.").
Xavier also argues that other events which happened after his mistrial motions prejudiced his defense. During Xavier's trial, Xavier's counsel stated that she had seen two jurors standing in front of the bulletin board. She said that the jurors were counting the number of Xavier's cases on the court calendar and that they were motioning to the other jurors. The court offered to give a curative instruction to the jury. Xavier did not move for a mistrial or ask for any further relief. Under these circumstances, Judge Hamilton did not commit plain error by failing to declare a mistrial sua sponte.
During his final argument, in describing Xavier's sexual abuse of N.W., the prosecutor stated that Xavier "can't stop" the sexual abuse. Xavier never objected to this argument. On appeal, Xavier argues that this argument was highly improper and required Judge Hamilton to declare a mistrial. The argument appears to be proper. N.W. testified that, in spite of her efforts to stay away from Xavier, he "just couldn't stop" and continued to pursue her. And even without N.W.'s testimony, Judge Hamilton could conclude that it was a reasonable inference from the evidence that Xavier could not control his behavior. Xavier never objected to this argument, and it is not obvious that the argument was improper.
Xavier claims that the prosecutor improperly argued that N.W.'s mother may have been "terrified" of Xavier. Xavier did object to this argument. The prosecutor argued that N.W.'s mother was afraid of Xavier in response to Xavier's argument that N.W. lacked credibility because she had not reported her suspicion that Xavier was sexually abusing N.W. Judge Hamilton could conclude that N.W.'s mother's possible fear of Xavier was a permissible inference from the evidence to explain why, in spite of being aware that Xavier was sexually abusing N.W., she had delayed reporting the abuse. We find that Judge Hamilton did not err in allowing this argument.
Conclusion
We conclude that Judge Hamilton did not err in denying Xavier's various motions for a mistrial. The judgment of the superior court is AFFIRMED.
I write separately because, although I agree with the result reached by my colleagues (the decision to affirm the superior court's judgement), I differ significantly in my analysis of why we should reach that result.
I anticipate that many (if not most) of our readers will be surprised and perhaps dismayed by one of the underlying rulings in this case: the trial judge's decision to prohibit the victim's mother from testifying that, on one occasion, she observed Xavier sexually abusing her daughter, and that Xavier confessed to her that he had abused her daughter. The judge's decision to prohibit the mother from giving this testimony was incorrect: Xavier was not entitled to exclusion of this evidence, nor was he entitled to a mistrial on account of the mid-trial revelation of this evidence.
To summarize the pertinent facts: During the investigation of this case, in separate interviews with the state troopers and with the defense attorney, the victim's mother maintained that she had had no indication that Xavier was sexually abusing her daughter. She stuck to this story through the beginning of Xavier's trial. But in a mid-trial interview with the prosecutor (an evening interview that took place following the first day of trial), the victim's mother recanted her earlier position and declared that she had personally witnessed Xavier abusing her child.
As Judge Hamilton found, the State did not hide this new information from Xavier's attorney, nor did the State commit even a technical violation of the rules governing disclosure of this evidence to the defense. Rather, the prosecutor immediately disclosed this new evidence to Xavier's attorney (by sending an email to the defense attorney that evening).
The next morning, the defense attorney apprised Judge Hamilton of this new development in the case, and asked for judicial relief. The defense attorney argued that, because she had already told the jury (in her opening statement) that the victim's mother had never suspected Xavier of abusing her daughter, it was not sufficient to simply grant the defense a continuance to prepare for this new information, nor even was it sufficient to exclude the new evidence. Rather, the defense attorney asked for a mistrial.
Judge Hamilton interrupted the trial for five days (in effect, giving the defense a five-day continuance) while the judge considered what to do, in light of this new development.
When court reconvened five days later, Judge Hamilton denied the defense motion for a mistrial. Nonetheless, Judge Hamilton decided to prohibit the State from presenting this evidence at Xavier's trial. Judge Hamilton ruled that the State should be precluded from presenting this evidence to the jury because (1) Xavier had not been indicted for the episode of sexual abuse witnessed by the victim's mother; (2) the mother's testimony would be "cumulative" and would tend to "confuse the issue"; and (3) Xavier would be prejudiced because his attorney had prepared for trial without knowledge of this new evidence.
None of these three rationales holds water.
First, the fact that Xavier had not been indicted for the particular act of sexual abuse witnessed by the victim's mother had no bearing on whether the victim's mother should have been allowed to testify about that act of abuse. By definition, when evidence of other crimes is introduced against defendants under Alaska Evidence Rule 404(b), the defendant has not been indicted for the crime in question. Otherwise, it would not be an "other" crime; rather, it would be part of the case that the State was required to prove.
Second, the mother's testimony would not be "cumulative", nor would it be "confusing" to the jury. Rather, the mother's testimony was obviously relevant and important to the jury's consideration of Xavier's case. The victim testified that Xavier had subjected her to a pattern of sexual abuse, and Xavier contended that the abuse never happened. The jury had to decide between these two competing versions of events. The victim's mother was prepared to testify that she had walked in when Xavier was sexually abusing her daughter, and that Xavier confessed to her. There could hardly be testimony more important to the jury's evaluation of the victim's credibility — and, ultimately, the jury's evaluation of the State's case against Xavier.
This leaves Judge Hamilton's third rationale: that the evidence should be excluded because Xavier was "prejudiced" by this new information — in the sense that Xavier's attorney had prepared for trial (and had given the defense opening statement) with the anticipation that the victim's mother would continue to assert that she had no indication that Xavier was abusing her daughter.
It is true that the defense attorney prepared for trial thinking that the mother would testify that she had never suspected Xavier of engaging in sexual misconduct with her daughter — and that this testimony would provide important support for the defense case.
The mother lived in the same household as Xavier and the alleged victim, so she assumedly was in a position to know whether any misconduct was occurring. She had declared (in pre-trial interviews both with the state troopers and with the defense) that she observed nothing to make her suspect that Xavier was abusing her daughter. In the defense opening statement, Xavier's attorney told the jurors, "You will hear that [the victim's mother] . . . did not suspect [Xavier] of ever touching [her daughter]."
But as every attorney and judge knows, people sometimes change their stories when they are subjected to the crucible of a trial. Confronted with the prospect of giving testimony under oath in open court, and being subjected to cross-examination, witnesses will sometimes alter their account of events in significant ways — or even completely disavow major portions of what they said before. This is one of the primary reasons for having a trial.
Indeed, Judge Hamilton himself acknowledged that the victim's mother may have changed her mind about revealing this information because of her emotional reaction to hearing her daughter testify in court earlier that day. The prosecutor shared this view of the matter: he told the court that his office had maintained contact with the victim's mother throughout the case, and that the mother had never changed her story, or offered any new information, until the evening following the first day of testimony. The prosecutor declared, "I think [that her] coming to court, coming to [Bethel], the pressure and everything — things will boil out."
If, instead of revealing the new information in a mid-trial interview with the prosecutor, the victim's mother had taken the stand and had revealed this new information in open court, under questioning by either the prosecutor or the defense attorney, there would be no ground for striking the mother's testimony or directing the jury to disregard it. Certainly, the defense case would be hurt by this testimony, but the defense would not be "prejudiced" in the legal sense of being entitled to preclusion of the testimony, or to a mistrial.
As it happened, the victim's mother did not wait until she took the stand to reveal the new information. Rather, she revealed this information in a mid-trial interview, before she was to testify. But this fact does not alter the analysis or the result.
As we have explained, and as Judge Hamilton found, the prosecutor apprised the defense attorney of this new information as soon as he learned of it (by sending an email to the defense attorney that same evening). The prosecutor did not violate the pre-trial discovery rules; in fact, he arguably did more than the rules require. See Sivertsen v. State, 963 P.2d 1069, 1071-72 (Alaska App. 1998) (holding that Criminal Rule 16(b)(1) does not require a prosecutor to disclose oral statements made by witnesses during witness preparation interviews shortly before trial).
This new information doubtless came as a surprise to the defense attorney, and the mother's new account was clearly inconsistent with the description of the case that the attorney had offered to the jury during the defense opening statement. But these facts did not entitle the defense attorney to a mistrial or to preclusion of the evidence.
The Alaska Supreme Court addressed an analogous situation in McCurry v. State, 538 P.2d 100 (Alaska 1975). McCurry involved a defense claim of prejudice based on the fact that the government failed to disclose the names and expected testimony of its rebuttal witnesses until the middle of trial, after the defense had presented its case. Id. at 105-06. The supreme court rejected this claim. The court noted that the relevance of these witnesses' testimony did not become apparent until the prosecutor heard the defense case. Id. at 105. The supreme court concluded that, although defendants in this situation are entitled to a reasonable continuance to investigate the rebuttal witnesses' background, they are not entitled to block the government from presenting the testimony of these witnesses. Id. at 106.
It is true that four years later, in H owe v. State, 589 P.2d 421 (Alaska 19 79), the supreme court limited its holding in McCurry and broadened the prosecution's duty to reveal anticipated rebuttal witnesses. But Howe reaffirmed the principle that defendants are not entitled to relief whenever new information is uncovered during the trial. The supreme court declared:
[It] should go without saying that the prosecution has no duty to disclose that which it does not know. Thus, where additional investigation is done during the course of a trial and a witness is uncovered, the fact that his name [and anticipated testimony] was not earlier disclosed under . . . Criminal Rule 16(b)(1) is not a basis for excluding his testimony. [W e note that] McCurry could have properly been decided on this basis.
Howe, 589 P.2d at 424-25.
Xavier's case presents a similar situation — a situation where the prosecutor was unable to reveal what he did not know. Before trial, the victim's mother repeatedly and consistently declared that she had no inkling that Xavier was abusing her daughter. Then, after her daughter testified on the first day of trial, she changed her story and acknowledged that she had personal knowledge of the sexual abuse.
The prosecutor promptly revealed this information to the defense attorney, and the defense attorney was given a five-day continuance to investigate this turn of events. But other than this continuance, Xavier was entitled to no further relief — neither the mistrial that the defense attorney asked for, nor the exclusion of evidence that Judge Hamilton mistakenly ordered.
In other words, the only error that occurred with respect to the mother's testimony was an error that ran in Xavier's favor. On this basis, I vote to uphold the judgement of the superior court.