Opinion
Court of Appeals No. A-9547.
November 21, 2007.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Winston S. Burbank, Judge.
Marcia E. Holland, Assistant Public Defender, Fairbanks, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Timothy W. Terrell, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding precedent for any proposition of law.
MEMORANDUM OPINION AND JUDGMENT
A jury convicted Frank B. Yarra Jr. of first-degree failure to stop at the direction of a peace officer, driving without a valid operator's license, improper use of registration or title, and reckless endangerment. On appeal, Yarra argues that this court must reverse his convictions because the superior court barred him from presenting evidence that another person committed the crimes. Because the superior court could reasonably conclude that the other suspect evidence did not establish a direct connection between the other person and the alleged crimes, we affirm the superior court's judgment.
AS 28.35.182(a), AS 28.15.011, AS 28.10.481, and AS 11.41.250, respectively.
Background facts and proceedings
On July 15, 2004, the Fairbanks detachment of the Alaska State Troopers received a telephone report that a man and woman were fighting in a small maroon and gray truck near the Fox weigh station. Trooper Andrew Ballesteros was driving on the Steese Highway when he saw a truck that appeared to be the one described in the report pass him going in the other direction. Trooper Ballesteros turned around to follow the truck, but could not locate it. The troopers put out an alert notifying law enforcement agencies to look for the truck.
The next day, an employee at the Fox weigh station notified the troopers that the truck went by, occupied by a man and a woman. Trooper Ballesteros was driving northbound on the Steese Highway and saw the truck going in the opposite direction. He noticed the occupants of the truck were a man and a woman, and that the truck was missing a front license plate.
Trooper Ballesteros activated his emergency lights, turned around, and pursued the truck southbound. The truck sped up to 70-80 miles per hour, cut across two lanes of traffic (almost causing an accident with other cars), and took the off ramp closest to Chena Hot Springs Road. The truck continued to travel at speeds approaching 60 miles per hour in a 20 mile-per-hour residential zone, ignoring posted stop signs. The truck turned into a residential driveway, drove around the side of the house, and stopped in the backyard at the tree line.
Trooper Ballesteros followed and stopped near the truck. The male driver got out of the truck and and ran into the woods. The driver was wearing a baseball cap, and Trooper Ballesteros saw the driver's face as he looked back while running away. The female passenger started to leave the truck, but Trooper Ballesteros stopped her before she left. Other troopers responded to the call, set up a perimeter around the woods, but did not locate the driver.
The female passenger was Elizabeth Mogg. Trooper Ballesteros found a wallet on the truck's seat that contained Yarra's expired driver's license. The wallet also contained photos of Mogg. Trooper Ballesteros identified Yarra as the man he had seen driving the truck.
The grand jury charged Yarra with felony failure to stop several months later. The State filed an information that included the additional charges.
At trial, the State called Trooper Ballesteros, Mogg, and Sandy Scrase, whose yard Yarra had driven through. Mogg testified that Yarra drove the truck on July 16, 2004. The State also called an employee of the Department of Motor Vehicles to testify about the status of the truck's license plate and Yarra's license. The State then rested.
Yarra called Brenda Hannah as a witness. Hannah testified that on July 15, 2004, she was at home and heard a man yelling obscenities at a woman and heard the woman scream. Concerned for the woman's safety, Hannah called the troopers and was told they were already responding. When the yelling continued, Hannah drove down to the end of her driveway; she saw a young man and woman across the road getting into a small pickup truck. Hannah testified that the man she saw had "softer brown" hair. She conceded that she did not get a good look at the man's face and that she could not recall what he looked like. As a result, she was unable to identify Yarra as the man she saw that day.
Yarra next called Carolyn Flavell, a case worker from the North Star Center. Flavell testified that Yarra was one of her clients at the North Star Center and that for as long as she had known him, he always had black hair.
Following Flavell's testimony, the prosecutor informed the court that Yarra's counsel had told him that Yarra intended to present an other-suspect defense: Yarra intended to offer evidence showing that Mogg had been married to a man by the name of Shawn Robinson and that Robinson had blond hair. Yarra wanted to show that Robinson could have been the driver on July 16, 2004, because Robinson had light colored hair like that of the man Brenda Hannah had seen driving a truck on July 15, 2004. The court stated that Yarra had not asked Mogg about Robinson on cross-examination, and ruled that Mogg would have to be recalled as a witness and given the opportunity to explain or deny whether Robinson was with her on July 15th or 16th.
Yarra declined to recall Mogg and argued that based on Smithart v. State, his constitutional right to a fair trial and due process allowed him to present evidence that Robinson was the driver. The court noted that Yarra had not shown that Robinson was directly connected with the commission of the July 16th crimes, unlike the direct connection established by the evidence in Smithart.
988 P.2d 583 (Alaska 1999).
Yarra presented an offer of proof. First, Yarra called Robert Koslick, an employee of the Department of Motor Vehicles. Koslick produced the driving record of Shawn Robinson, which described Robinson's hair color as "blond." Second, Yarra called Correctional Officer Jerry Watson, who presented a prison visitor's log showing that Robinson visited Mogg in February 2004 at the Fairbanks Correctional Center. Third, Yarra offered a speeding ticket issued to Robinson in April of 2005 which described Robinson's hair as blond. Fourth, Yarra offered a July 2003 rental agreement indicating that Robinson and Mogg rented an apartment together and described themselves as husband and wife. Finally, Yarra proffered documents showing that in December of 2004, Mogg and Robinson's landlord sought to end their tenancy.
Superior Court Judge pro tem Winston S. Burbank ruled that the evidence Yarra presented and proffered did not directly connect Robinson to the crimes committed on July 16, 2004.
The jury convicted Yarra of all charges. Judge Burbank imposed a composite term of 5 years and 20 days to serve.
Discussion
On appeal, Yarra argues that the superior court violated his right to present a defense by barring him from presenting evidence describing Robinson's hair color and his relationship with Mogg. Because Judge Burbank made a legal conclusion, we review this ruling de novo.
Smithart v. State, 988 P.2d 583, 586 (Alaska 1999) (citing M.R.S. v. State, 897 P.2d 63, 66 (Alaska 1995)).
In Marrone v. State, the Alaska Supreme Court ruled that a defendant cannot present evidence suggesting a third person committed the crimes for which the defendant is on trial unless the evidence has "an inherent tendency to connect such other person with the actual commission of the crime." The court revisited the rule in Smithart v. State and held:
359 P.2d 969 (Alaska 1961).
Id. at 984.
Under Alaska law, a defendant may always generally suggest that someone other than the defendant is guilty of the charged crime. But when a defendant wishes to implicate a specific individual, evidence of the third party's guilt is admissible only if the defense can produce evidence that "tend[s] to directly connect such other person with the actual commission of the crime charged." This rule derives from considerations of relevance and materiality; as we explained in Marrone v. State, such an initial evidentiary showing is necessary because "if evidence of motive alone upon the part of other persons were admissible . . . in a case involving the killing of a man who had led an active and aggressive life it might easily be possible for the defendant to produce evidence tending to show that hundreds of other persons" were possible suspects in the murder. In such a system, the resulting trial would be a confusing waste of judicial resources. The concerns voiced in Marrone have led virtually every state to require some kind of preliminary evidentiary showing before allowing introduction of alternative-perpetrator evidence.
Id. at 586-87 (footnotes omitted).
Yarra claims that evidence of Robinson's hair color and relationship with Mogg satisfies the direct connection requirement discussed in Smithart. But in Smithart, a case in which a teenage girl was killed, the evidence the defendant proffered showed several direct connections between the person Smithart contended was another suspect and the crimes charged. He proffered evidence that the other suspect was at the scene of the crime on the day the crime was committed, that the shop in which the other suspect worked was a possible source of material found on or near the victim's body, that the other suspect delayed reporting Smithart's presence at the scene of the crime, and that the other suspect offered false evidence and lied to the police about his own whereabouts on the afternoon of the victim's disappearance. The other suspect was also a convicted felon who illegally possessed firearms in violation of his probation, including a firearm similar to the one that killed the victim, and who had been accused of sexual abuse of a minor for a consensual relationship with a fifteen-year-old girl. As the supreme court stated, "Smithart's offer of proof combined opportunity, consciousness of guilt, and forensic evidence against [the other suspect]."
Id. at 587.
Id. at 588.
In this case, Yarra did not show any direct connection between Robinson and the crimes committed. The evidence Yarra presented showed that the day before the charged crimes, Brenda Hannah saw a man with "softer brown," perhaps "dirty blond" hair who was with a woman. Yarra's offer of proof consisted of a speeding ticket and documents from the Department of Motor Vehicles that described Robinson's hair color as "blond" and documented evidence that suggested Robinson had lived with Mogg and had visited her at the Fairbanks Correctional Center. But the evidence Yarra presented or proffered failed to suggest that Robinson had an opportunity to commit the crimes charged, failed to demonstrate that Robinson had a consciousness of guilt, and failed to provide forensic evidence linking Robinson to the July 16th crimes. The evidence also failed to suggest that the man Hannah saw on July 15th was Robinson.
We conclude that the evidence Yarra offered did not have an inherent tendency to connect Robinson with the actual commission of the crime. Judge Burbank therefore properly ruled that Yarra could not present the proffered evidence to suggest that Robinson committed the crimes on July 16th.
Marrone, 359 P.2d at 984.
Conclusion
The judgment of the superior court is AFFIRMED.