Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Tamara E. de Lucia, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Wayne Anthony Ross, Attorney General Designate, Juneau, for the Appellee.
Before : COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.
Nekida Jones was prosecuted for second-degree assault based on the allegation that he assaulted his girlfriend by striking her repeatedly on the head and strangling her. At Jones's trial, the State wished to introduce
evidence that Jones had committed a similar domestic assault in the past- i.e., had assaulted another girlfriend by striking her repeatedly on the head and strangling her.
However, rather than calling the victim of this earlier assault to the stand, the State offered documentary evidence to establish this prior act of assault. Specifically, the State sought to introduce (1) the criminal complaint that was filed in connection with the earlier incident (charging Jones with the crime of assault under section 08.10.010(B)(1) of the Anchorage Municipal Code), and (2) the ensuing criminal judgement that was entered against Jones for this misdemeanor, after Jones pleaded no contest to the charge.
The trial judge questioned the admissibility of the assertions of fact contained in the complaint, noting that these statements were double hearsay. However, the judge ultimately ruled that the statements were admissible under the theory that Jones must have expressly adopted or conceded the truth of the allegations in the complaint when he entered his no contest plea.
The question presented in this appeal is whether the superior court was correct when it ruled that the assertions of fact contained in the earlier assault complaint were admissible against Jones over a hearsay objection. We conclude that the assertions of fact in the complaint were inadmissible hearsay and that they should not have been admitted at Jones's trial. Moreover, there is a reasonable likelihood that the error in admitting these statements appreciably affected the jury's verdict. We therefore reverse Jones's conviction.
The trial court's ruling on the admissibility of the assertions of fact contained in the prior complaint
When the State proposed to introduce its documentary evidence-the judgement from Jones's prior assault conviction, and the complaint that initiated that earlier assault prosecution-Jones did not object to the criminal judgement, but he did object to the complaint.
In the complaint-or more specifically, in the affidavit supporting the complaint-the investigating officer made several specific assertions of fact: that Jones had " grabbed [his former girlfriend] by the arms" , that he had " struck her in the face several times with an open hand" , that he had " struck her at least once with a closed fist" , and that he had " grabbed her with both hands around the neck" . These assertions were not based on the officer's personal knowledge, but rather on his interview with Jones's girlfriend.
The State wished to rely on these factual assertions to show that Jones's prior assault on his former girlfriend was sufficiently similar to the currently charged assault to warrant admission of this evidence at Jones's trial under Evidence Rule 404(b)(4).
The trial judge, Superior Court Judge Philip R. Volland, questioned whether the statements contained in the complaint were admissible. Judge Volland noted that, because these statements were being offered for the truth of the matters asserted, they were double hearsay. In other words, the assertions of fact contained in the complaint were statements made out of court by the investigating officer, and the officer's statements were themselves based on still other out-of-court statements: the report of the victim.
The problem facing the State was that if only the judgement was admissible, and not the assertions of fact in the complaint, then the State's offer of proof would be insufficient to establish that the prior assault was sufficiently similar to the currently charged assault to warrant admission of this evidence under Rule 404(b)(4).
The criminal judgement described Jones's criminal conduct only by reference to the charge specified in the complaint-the crime of assault as defined in AMC 08.10.010(B)(1). Under this provision of the municipal code, the crime of assault consists of the " intentional or reckless use of force or violence upon the person of another" . Thus, the criminal judgement described Jones's conduct in only generic terms.
It was the complaint that contained the crucial assertions that Jones had " grabbed [the victim] by the arms" , had " struck her in the face several times with an open hand" ,
had " struck her at least once with a closed fist" , and had " grabbed her with both hands around the neck" . Judge Volland expressly relied on these assertions-in particular, the assertions that Jones struck the former girlfriend repeatedly in the face, and that he began to strangle her-when the judge concluded that Jones's prior assault was sufficiently similar to the currently charged assault to warrant admission of this evidence at Jones's trial.
When Judge Volland raised the question of whether the assertions of fact in the complaint were inadmissible hearsay, the prosecutor responded that Jones, by pleading no contest to the earlier assault charge, had relinquished his right to contest any of the assertions of fact contained in the complaint:
Prosecutor: The complaint is the factual basis upon which the plea was taken. The defendant accepts those facts when the judgment and the conviction is entered.... [So] Mr. Jones's ability to dispute [the facts asserted in the complaint] is over and done with.
If there wasn't a conviction, Judge, [then] absolutely, I would need to bring in [witnesses] so that [Jones] could confront them, and [these assertions] could be presented to the jury, and the jury could decide those things. But once we have a conviction, we're supposed to be beyond that point.
In reply, Jones's attorney argued that, as a legal matter, this was not true:
Defense Attorney: When defendants enter no contest pleas, they're choosing not to challenge the [government]. They're choosing not to fight.... It's not necessarily their acquiescence [in the government's allegations, or that] they're agreeing with everything that's stated in the complaint.... So it's not correct to say that, once they enter a no contest plea, they no longer have the ability-or they are in complete agreement with what's been said in the complaint.
The defense attorney also pointed out that any single one of the four allegations of force or violence contained in the complaint, standing alone, would have been a legally sufficient basis for a charge of assault; thus, there was no way of knowing which of these assertions formed the factual basis for Jones's conviction.
After hearing these competing arguments, Judge Volland declared that he was persuaded by the State's argument that a defendant's entry of a no contest plea is an admission of all assertions of fact contained in the complaint. Based on this analysis, the judge concluded that the complaint was admissible against Jones as proof of the factual matters asserted in the complaint:
The Court: Every time I take a plea, I do precisely what [the prosecutor] says: I ask the defendant or ... his or her counsel ..., " Do you accept the factual basis of the complaint for the limited purpose of the factual support for the plea?" And the answer is always " yes" . Otherwise, I wouldn't take the plea.
[So] I'm persuaded by the State's arguments here, and I'll permit admission of the ... complaint in [this earlier] matter. I think that [the prosecutor] is correct that, having pled [no contest] to the assault, Mr. Jones has admitted the acts ...