WASSILLIE v. STATE, A-9735 (Alaska App. 12-19-2007)

ALVIN E. WASSILLIE, Appellant, v. STATE OF ALASKA, Appellee.

Court of Appeals No. A-9735.Court of Appeals of Alaska.
December 19, 2007.

Appeal from the District Court, Third Judicial District, Naknek, Fred Torrisi, Judge, Trial Court No. 3NA-06-031 Cr.

Patricia Douglass, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Ben Hofmeister, Assistant District Attorney, and Adrienne Bachman, District Attorney, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.

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

MEMORANDUM OPINION
MANNHEIMER, Judge.

Alvin E. Wassillie was convicted of fourth-degree assault, AS 11.41.-230(a)(1), for recklessly causing physical injury to his girlfriend, Sharon Delkittie. Wassillie now appeals this conviction. He argues that the trial judge improperly allowed the State to introduce certain statements that Wassillie made to the village public safetyPage 2
officer following his arrest, and that the trial judge then compounded this error by refusing to allow Wassillie to introduce other statements he made to the authorities — statements that Wassillie alleges were necessary to a complete understanding of the statements that the State was allowed to introduce. In addition, Wassillie claims that the trial judge improperly allowed the State to introduce evidence of Wassillie’s three prior convictions for assaulting Delkittie. Finally, Wassillie claims that, during the State’s closing argument, the prosecutor improperly commented on Wassillie’s decision not to take the stand at trial.

For the reasons explained here, we conclude that there is no merit to any of Wassillie’s claims of error. We therefore affirm his conviction.

Background facts

In the early morning of April 29, 2006, Alvin E. Wassillie and Luke Zackar were visiting Sharon Delkittie’s house in Kokhanok, Alaska, and they were drinking vodka. Sometime early that morning, Wassillie assaulted Delkittie. Delkittie suffered a swollen lip, a bruised and swollen eye, swelling over one of her ears, and a loosened tooth. Zackar witnessed this assault and, while the assault was still going on, Zackar left Delkittie’s house to telephone the village public safety officer and report this crime.

Village Public Safety Officer William Mike arrived at Delkittie’s house within ten minutes. Upon his arrival, Mike first spoke with Zackar, who was waiting outside Delkittie’s house. Mike then went into the house, where he found Wassillie and Delkittie. Wassillie was not assaulting Delkittie when Mike entered the house, but Mike could see that Delkittie was injured. He arrested Wassillie and transported him to the village of Kokhanok’s holding facility.Page 3The issue of Wassillie’s out-of-court statements: whether the Stateshould have been allowed to introduce some of these statements, andwhether Wassillie should then have been allowed to introduce othersunder the doctrine of completeness

Wassillie was intoxicated when he was arrested. Although he was initially quiet and cooperative, he became verbally abusive and physically violent once he was placed in the holding cell. Wassillie yelled various threats at Mike, including a threat to kill the officer, and then Wassillie tried to kick his way out of the holding cell. Mike recorded Wassillie’s statements on audiotape.

At Wassillie’s trial, the State sought permission to play a portion of this audio recording to the jury — arguing that Wassillie’s intoxication, his threatening statements, and his attempts to kick down the door were relevant to prove Wassillie’s violent state of mind at the time of the alleged assault on Delkittie. The trial judge, Superior Court Judge Fred Torrisi, ruled that the State could play those portions of the tape that were recorded soon after Wassillie’s arrest.

The State did not introduce any portion of the audio tape that day, but the next day (i.e., the second day of trial), the State played the first thirteen minutes of the holding cell audiotape.

Wassillie’s attorney argued that, if the State wished to play this portion of the tape, then Wassillie should be allowed to introduce the entire recording — which, it seems, was several hours long. In addition, the defense attorney argued that if the State was going to introduce its proposed thirteen-minute portion of the holding cell audiotape, Wassillie should be allowed to introduce the complete audiotape of his later interview with Alaska State Trooper John Holm — an interview that took place on May 2, 2006 (i.e., three days after Wassillie’s arrest). The defense attorney contended that Wassillie’sPage 4
statements and actions on these tapes would provide a “context” to explain why Wassillie was angry and violent following his arrest.

Judge Torrisi rejected the defense attorney’s argument that Wassillie should be allowed to play the holding cell audio recording in its entirety. However, the judge ruled that Wassillie could offer specific portions of this recording if, in fairness, these portions were needed to put the State’s thirteen-minute segment in proper context.

During this same discussion, the defense attorney also mentioned that she wanted to play the tape of Wassillie’s interview with Trooper Holm. (As explained above, this interview took place on May 2nd, approximately three days after Wassillie’s arrest on April 29th.) Although the tape of this interview is not part of the record, Wassillie apparently made statements to Holm in which he tried to explain why he was so angry on the day that he was arrested — basically, assertions that he had been falsely accused. As was the case with the holding cell recording, Judge Torrisi indicated that he would not allow the defense attorney to play the interview in its entirety, but he invited the defense attorney to specify particular portions of this interview that might be needed to provide a proper understanding of the segment of the holding cell recording that the State played.

(Judge Torrisi’s ruling was based on the “rule of completeness” that we discussed and explained in Sipary v. State, 91 P.3d 296, 299-301
(Alaska App. 2004).)

In response to Judge Torrisi’s invitation, Wassillie’s attorney told the judge that she would need a lengthy recess to locate the pertinent portions of these audio recordings.

The attorney then argued that, even without an offer of proof regarding the specific things that Wassillie may have said on the holding cell recording, the entire recording should be played. The attorney contended that it was important for the jury to hear the long stretches of silence on the audio recording — i.e., the lengthy periods ofPage 5
time when Wassillie said nothing. The apparent relevance of these periods of silence was to show that Wassillie was not continuously violent or threatening during the hours that he spent in the holding cell.

Judge Torrisi acknowledged that this evidence might be relevant, but he concluded that it would be a waste of time for the jury to listen to long stretches of a silent audio recording. Instead, the judge allowed the defense attorney to cross-examine VPSO Mike so as to bring out the fact that Wassillie was silent for long periods during his incarceration in the holding cell.

In addition, Judge Torrisi reiterated that the defense attorney was free to make further requests concerning other portions of the two audio recordings, if she could demonstrate why these particular portions were needed to provide a proper understanding of the segment that the State played. The defense attorney responded that there were, indeed, other portions that needed to be played — but that she did not have these passages marked, and she would need a recess to find them.

Judge Torrisi told the defense attorney that he was not willing “to wait around . . . at this point [in the trial].” However, the judge told the defense attorney that there would be “gaps in the trial where you can . . . make further application about playing other portions [of the recording].”

Judge Torrisi made no further rulings on this issue — because the defense attorney never renewed her requests to play specific portions of the holding cell audio recording or specific portions of the later interview with Trooper Holm.

These procedural events give rise to three legal issues.

The first issue is whether Judge Torrisi abused his discretion when he concluded that Wassillie’s threats and violent actions in the holding cell were relevant to prove Wassillie’s state of mind at the time of the alleged assault on Delkittie. We conclude that Judge Torrisi did not abuse his discretion in concluding that this evidencePage 6
was relevant on this point. Given the short period of time between the assault and Wassillie’s behavior in the holding cell, the judge could reasonably conclude that Wassillie’s behavior was probative of Wassillie’s state of mind some forty-five minutes earlier.[fn1]

The next issue is whether Judge Torrisi abused his discretion when he declined to allow the defense attorney to play lengthy excerpts of silent audiotape to the jury, and instead directed the defense attorney to make her point through cross-examination of VPSO Mike. We conclude that Judge Torrisi’s handling of this issue was not an abuse of discretion.

Under Alaska Evidence Rule 403, a trial judge has the authority to exclude or limit relevant evidence if the probative force of that evidence is outweighed by “considerations of undue delay [or] waste of time”. Judge Torrisi could reasonably conclude that it would be a waste of time for the jury to sit listening to lengthy silences on the audiotape, and that the defense attorney’s point could be made just as well by having a government witness concede that Wassillie was silent and non-violent for long stretches of time while he was in the holding cell.

In his brief to this Court, Wassillie argues that the holding cell recording also contained some affirmative statements by Wassillie “that clarified [the reasons for] Wassillie’s anger and [threatening] statements”. If so, this claim of error was not preserved in the trial court.

As we pointed out earlier, Judge Torrisi expressly invited the defense attorney to identify any other portions of the holding cell recording that contained statements that were needed to provide a context for, or an understanding of, the segmentPage 7
of the recording that the State introduced. Wassillie’s attorney never responded to this invitation; that is, she never made an offer of proof describing any other portions of the recording that might be needed for an understanding of the segment that the State played.

Finally, we must decide whether Judge Torrisi abused his discretion when he declined to allow the defense attorney to play the entire audiotape of Wassillie’s interview with Trooper Holm (the interview that occurred some three days after Wassillie’s arrest). Again, we conclude that Judge Torrisi’s handling of this issue was not an abuse of discretion. As was true with the holding cell audiotape, Judge Torrisi expressly invited the defense attorney to identify any portions of the interview tape that contained statements necessary to provide a context for, or an understanding of, the segment of the holding cell audiotape that the State introduced. And, again, Wassillie’s attorney never responded to this invitation.

Wassillie’s three prior convictions for assaulting Delkittie

At trial, the State sought permission to introduce evidence of Wassillie’s three prior convictions for assaulting Delkittie. The State argued that this evidence was admissible under Alaska Evidence Rule 404(b)(4) — which states that, in a prosecution for a crime of domestic violence, the State may introduce evidence of the defendant’s other crimes of domestic violence.

Wassillie’s attorney objected that this evidence was irrelevant. The defense attorney asserted that Delkittie had been injured, not in a direct assault by Wassillie, but rather during a brawl that involved three people: Delkittie, Wassillie, and the third person present at the house, Zackar. Based on these assertions about the three-person brawl, the defense attorney argued that Wassillie’s prior direct assaults on Delkittie were not particularly relevant.Page 8

But Judge Torrisi could conclude that, given this theory of defense, Wassillie’s prior assaults on Delkittie were particularly relevant — since this evidence tended to rebut Wassillie’s assertions that he was the victim of a physical attack, or at least that Delkittie had been injured either in mutual combat or perhaps by Zackar during a multi-person mêlée.

Under this Court’s decision in Bingaman v. State, 76 P.3d 398, 415-16
(Alaska App. 2003), when the State proposed to introduce evidence of Wassillie’s other assaults on Delkittie, Judge Torrisi was obliged consider these factors:

• the strength of the government’s evidence that Wassillie had actually committed these other crimes;

• the particular trait of character or behavior that these other crimes tended to prove;

• whether this trait was material to the issues being litigated in Wassillie’s case — and, if it was material to one or more issues, whether the case was being litigated in such a way that these issues were seriously disputed;

• the likelihood that litigation of these other crimes would require an inordinate amount of time; and

• the likelihood that the evidence of Wassillie’s other crimes would lead the jury to decide the case on improper grounds, or would distract the jury from the main issues in the case.

In the present case, the parties were seriously litigating the issues of who had injured Delkittie, and how this had occurred. Evidence of Wassillie’s earlier assaults on Delkittie was directly relevant to the resolution of these issues. Moreover, the State wished to prove Wassillie’s three other assaults on Delkittie by introducing copies of thePage 9
judgements in those three criminal cases. (Delkittie was not cooperating with the government.) Thus, this evidence would require little litigation.

It is conceivable that this evidence might lead the jury to decide the case on improper grounds. That is, the evidence conceivably might have prompted the jury to decide that Wassillie should be punished for his prior crimes against Delkittie, regardless of whether the State had proved its present allegations beyond a reasonable doubt. However, we note that Judge Torrisi gave the jury two limiting instructions regarding this evidence: the first one immediately after the evidence of the three convictions was introduced, and the second one as part of the final jury instructions.

Given these facts, Wassillie has not shown that Judge Torrisi abused his discretion when he allowed the State to introduce evidence of Wassillie’s prior convictions for assaulting Delkittie.

Did the prosecuting attorney improperly comment on Wassillie’sdecision not to testify at trial?

Wassillie did not take the stand at his trial.

During the defense attorney’s final argument to the jury, she urged the jurors to view Wassillie’s “not guilty” plea as a piece of evidence in the case. She pointed out that, in the past, Wassillie had pleaded guilty when he was charged with assaulting Delkittie. She suggested to the jurors that Wassillie’s prior guilty pleas showed that he was always ready to take responsibility when he was in the wrong — and that his decision to plead not guilty in the present case was, in effect, an affirmative declaration that he was factually innocent and that the State’s current allegation of assault was unfounded:

Defense Attorney: Now, there were three people in that house that day [— Wassillie, Delkittie, and Zackar]. AndPage 10
we have three stories. And, yes, this [case] is about stories. It’s about a narrative, a sequence of events. That’s exactly what it’s about. [And] we have three different stories.

Alvin [Wassillie] is telling you, “I did not do this. This is not the way it happened.” That’s what he said when he pled not guilty and asked for a jury trial.

As a legal matter, the defense attorney’s statement is not correct. A defendant’s plea of not guilty is not evidence, nor is it an affirmative assertion of factual innocence. Rather, a plea of not guilty is a demand that the State prove its case.

During the prosecutor’s rebuttal argument, he responded to the defense attorney’s claim. The prosecutor told the jury:

Prosecuting Attorney: We don’t have Wassillie’s story, and hi[s] pleading not guilty is not evidence. We don’t know what happened in [the three earlier cases where Wassillie pleaded guilty to assault]. We don’t know . . . what his motivations are for pleading not guilty in this particular case, but we. . .

At this point, Wassillie’s attorney objected, and Judge Torrisi immediately instructed the jury — correctly — that “the defendant has the right to plead not guilty”, but that jurors are obliged “[to] decide the case on the evidence”. Judge Torrisi then directed the prosecutor to continue his summation. The defense attorney did not argue that this curative instruction was inadequate, nor did she request any other relief.

On appeal, Wassillie argues that it was improper for the prosecutor to refer to the fact that Wassillie had declined to take the stand. But the law does not forbid all comment on a defendant’s failure to take the stand. Rather, the law forbids commentsPage 11
which suggest that the jurors should draw an adverse inference from the defendant’s failure to testify.[fn2]

Here, the prosecutor made no such suggestion. Rather, he pointed out — in response to the defense attorney’s argument, and correctly — that Wassillie’s decision to plead not guilty was not evidence, and that Wassillie’s plea should not be viewed as the equivalent of a testimonial assertion of factual innocence. The prosecutor’s comment was proper.

Conclusion

The judgement of the district court is AFFIRMED.

[fn1] See Hoffman v. State, 950 P.2d 141, 147 (Alaska App. 1997);Marino v. State, 934 P.2d 1321, 1329-1330 (Alaska App. 1997);Lerchenstein v. State, 697 P.2d 312, 317-19 (Alaska App. 1985). [fn2] Lakeside v. Oregon, 435 U.S. 333, 338-39; 98 S.Ct. 1091, 1094; 55 L.Ed.2d 319 (1978); Hill v. State, 902 P.2d 343, 345-46 (Alaska App. 1995).

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