CHARLES v. STATE, A-10031 (Alaska App. 1-14-2009)

MELVIN F. CHARLES, Appellant v. STATE OF ALASKA, Appellee.

Court of Appeals No. A-10031.Court of Appeals of Alaska.
January 14, 2009.

Appeal from the District Court, First Judicial District, Ketchikan, Kevin G. Miller, Judge, Trial Court No. 1KE-07-103 CR.

George J. Dozier Jr., Eagle River, for the Appellant.

Stephen R. West, District Attorney, Ketchikan, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.

Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.

BOLGER, Judge.

Virginia White called 911 to report that Melvin Charles had assaulted her. She later repeated this accusation during a recorded police interview. However, at Charles’s trial, when White stated that she could not remember the incident or her prior statements, the trial judge admitted the recordings of the 911 call and interview as priorPage 2
inconsistent statements. Charles now argues that White was not truly available for cross-examination, and that her prior statements were not truly inconsistent with her trial testimony. But the Confrontation Clause does not restrict the use of prior statements when the witness testifies at the defendant’s trial. And a prior witness statement is inconsistent for purposes of Alaska Evidence Rule 801(d)(1)(A) if the witness cannot remember the incident or the prior statement. We therefore uphold the trial court’s ruling.


White called 911 late in the evening of January 26, 2007, and reported that Charles had broken her finger and hit her in the head several times. White was crying, and she complained of pain in her hand and head.

Sergeant Gary Webb of the Alaska State Troopers responded to the call. White was crying and visibly upset when Webb arrived at the residence White shared with Charles. White’s left ring finger was bent and appeared to be broken.

When interviewed by Sergeant Webb at the residence, White said that Charles was upset with her because she had asked him for some money to cook and clean for him and because she had spent some time with her ex-husband. White told Sergeant Webb that Charles had attacked her: He broke her finger and hit her on the head.

At trial, White testified about some of the events that occurred earlier in the evening. She remembered that Charles had called asking her “to come home and cook for him,” but she refused. Charles was also upset with her because she was going out. When she arrived home, Charles was standing on the porch with his arms crossed in front of him. But White did not remember what had happened after she arrived at home.Page 3
White next remembered talking to the trooper about her broken finger and arranging for transportation to the emergency room.

White testified that she could not remember who injured her. She listened to recordings of the 911 and her interview with Sergeant Webb, but she claimed that she still could not remember what happened. Although White testified that she did not recall making a 911 call or talking to the trooper about what happened, she agreed that the taped interview was her description of what happened.

Following this testimony, the State offered the recording of White’s 911 call as a prior inconsistent statement. Charles objected on the ground that the statement was not inconsistent with White’s trial testimony. The State argued that her prior statement was inconsistent because, in that statement, White remembered what occurred and during her testimony she did not. District Court Judge Kevin G. Miller overruled the objection and admitted the recording of the 911 call.

The State also offered the recording of White’s interview with Trooper Webb on the night of the incident. Charles then repeated the same objection that he asserted to the 911 call. Judge Miller admitted the interview recording, finding the State had laid a proper foundation and that the recording was not unfairly prejudicial.

The defense cross-examined White about her level of intoxication, her anger, and her lack of memory about what happened on the evening in question. White admitted that she had been taking medications, and agreed with the defense that the medications interacted with alcohol. White also admitted that she had been convicted of committing assaults against her ex-husband, and that she had left a message on Charles’s voicemail the night before trial threatening to burn his belongings.Page 4

Charles testified that he caused White’s injuries in self-defense. He testified that he woke up with White on top of him, clawing at him, pulling his hair, and punching his head. Charles said that he pushed White hard enough that she flew into the air and landed on the floor.

The jury convicted Charles of assault in the fourth degree. He now appeals to this court.

The Confrontation Clause Claim

Charles argues that the Confrontation Clause of the Sixth Amendment requires that a declarant must be available to testify about the circumstances surrounding a prior inconsistent statement and its underlying events before that prior statement can be admitted. But Charles did not make any objection based on the Confrontation Clause at his trial and therefore must establish plain error to succeed on appeal.[fn1] “To be `plain error’, an error must be so obvious that any competent judge or attorney would have recognized it. If a claim of error is reasonably debatable — if reasonable judges could differ on what the law requires — then a claim of plain error fails.”[fn2] Charles cannot establish plain error in this case because his Confrontation Clause argument runs contrary to a large body of relevant case law.

In United States v. Owens, [fn3] the Supreme Court held that admission of a witness’s prior statement does not violate the Confrontation Clause if the witness testifiesPage 5
and is subject to cross-examination, regardless of whether the witness can fully remember the underlying events or the circumstances under which the statement was given.[fn4] This court relied on Owens inVaska v. State, [fn5] holding that a prior statement may be admitted consistent with the Confrontation Clause if the witness is available for cross-examination, even when the witness has no memory regarding the incident and the circumstances surrounding the statement.[fn6]

Charles relies on the Supreme Court’s subsequent decision in Crawfordv. Washington, [fn7] which held that when the declarant does not testify, admission of testimonial hearsay violates a defendant’s right to confrontation unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant.[fn8] But the Supreme Court in Crawford emphasized that “when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.”[fn9]

Charles argues that Crawford requires that a witness must remember the events which form the basis for the prior statement at issue. But virtually every jurisdiction addressing this subject has held thatCrawford does not forbid the admission of a prior inconsistent statement when the witness testifies at trial — even when thatPage 6
witness cannot remember the underlying matter or the circumstances surrounding the prior statement.[fn10]

In the present case, White appeared at trial and testified, and Charles cross-examined her. Although White stated that she could not recall the underlying events or her prior statements, she was able to testify generally about the evening in question. Charles cannot show plain error under these circumstances because the existing case law reasonably supports the trial court decision.[fn11]
The Prior Inconsistent Statements

Charles also argues that the trial judge should not have admitted White’s statements as prior inconsistent statements under Alaska Evidence Rule 801(d)(1)(A).

Evidence Rule 801(d)(1)(A) provides: “A statement is not hearsay if . . . [t]he declarant testifies at the trial or hearing and the statement is . . . inconsistent with the declarant’s testimony. . . .” Under this rule, if White’s prior statements during the 911 call and the police interview were inconsistent with her testimony at trial, then her prior statements were admissible to prove the substance of the matters she asserted. The question is whether prior statements are truly inconsistent with witness’s testimony whenPage 7
the witness either claims a lack of memory, or genuinely cannot remember her statements or the incident in question.

The Alaska Supreme Court addressed this issue many years ago inRichards v. State.[fn12] In Richards, the trial court admitted a videotape in which the defendant’s eight-year-old son reenacted an incident where he witnessed his father beating his baby brother. The supreme court held that the tape was admissible as a prior inconsistent statement because the boy testified that he had forgotten most of what he had seen.[fn13]

This court has followed and clarified the principle of Richards in several cases, holding that a witness’s trial testimony is inconsistent with a prior statement whenever the witness claims not to remember the substance of the statement, whether that claim is true or false.[fn14]
“It is irrelevant for purposes of the rule whether the claimed memory loss is genuine or feigned because the claimed lack of memory at trial (whether genuine or feigned) is inconsistent with the witness’s earlier claim to remember.”[fn15] This rule applies even when the witness has no memory of the incident described in the prior statement.[fn16]

Relying on the decision in Crawford, Charles now asks us to reexamine cases interpreting Alaska Evidence Rule 801(d)(1)(A). He suggests that under Crawford, Rule 801(d)(1)(A) should not apply to cases involving genuine memory loss.Page 8

But Charles does not tell us why Crawford requires us to reexamine our prior cases. The Crawford case did not interpret Alaska Evidence Rule 801(d)(1)(A) or its federal counterpart. And as noted above, Crawford
states that the Confrontation Clause is not implicated when the person who made the prior statements is present and testifying at trial.[fn17]

We accordingly conclude that Crawford does not require us to reexamine the prior Alaska cases interpreting Alaska Evidence Rule 801(d)(1)(A). If a witness cannot remember the incident or their prior statement, then the prior statement is inconsistent with their trial testimony for the purposes of this rule.

We therefore AFFIRM the judgment of the superior court.

[fn1] Simon v. State, 121 P.3d 815, 819 (Alaska App. 2005).

[fn2] Id. at 820 (citation omitted).

[fn3] 484 U.S. 554, 108 S. Ct. 838, 98 L. Ed. 2d 951 (1988).

[fn4] Id. at 559-60, 108 S. Ct. at 842-43.

[fn5] 74 P.3d 225, 229-30 nn. 29-30 (Alaska App. 2003), rev’d on othergrounds, 135 P.3d 1011 (Alaska 2006).

[fn6] Id. at 228-30.

[fn7] 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).

[fn8] Id. at 68, 124 S. Ct. at 1374.

[fn9] Id. at 59, 124 S. Ct. at 1369 n. 9.

[fn10] See, e.g., State v. Real, 150 P.3d 805, 808-09 (Ariz.App. 2007);People v. Candelaria, 107 P.3d 1080, 1087 (Colo.App. 2004); State v.Pierre, 890 A.2d 474, 502 (Conn. 2006); State v. Gorman, 854 A.2d 1164,1177-78 (Me. 2004); State v. Holliday, 745 N.W.2d 556, 564-68 (Minn. 2008); State v. Price, 146 P.3d 1183, 1192 (Wash. 2006); State v.Rockette, 718 N.W.2d 269, 276-77 (Wis.App. 2006). But see State v.Nyhammer, 932 A.2d 33, 41-43 (N.J.Super.Ct. App. Div. 2007).

[fn11] Simon, 121 P.3d at 820.

[fn12] 616 P.2d 870 (Alaska 1980) (per curiam).

[fn13] Richards, 616 P.2d at 871.

[fn14] See Vaska, 74 P.3d at 228; Wassilie v. State, 57 P.3d 719, 723
(Alaska App. 2002); Van Hatten v. State, 666 P.2d 1047, 1051
(Alaska App. 1983).

[fn15] Wassilie, 57 P.3d at 723.

[fn16] See Vaska, 74 P.3d at 226-28; Wassilie, 57 P.3d at 722.

[fn17] Crawford, 541 U.S. at 59, 124 S. Ct. at 1369 n. 9.Page 1