[Copyrighted Material Omitted]
Brooke Berens, Assistant Public Advocate, Appeals & Statewide Defense Section, Rachel Levitt, Acting Public Advocate (opening brief), and Richard Allen, Public Advocate (reply brief), Anchorage, for the Appellant.
Terisia Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
Before: COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.
Richard Francis Hunter appeals his convictions for second-degree murder and tampering with evidence. At trial, the major issue was whether Hunter acted in self defense. On appeal, the question is whether the superior court committed error when, over Hunter's objection, the court allowed two police officers to testify concerning Hunter's propensity for aggression and violence.
One of these officers testified that Hunter had a reputation as a violent person. The second officer testified that, in his opinion, Hunter was an aggressive person. But as we explain in this opinion, the record (even viewed in the light most favorable to the government) does not show that the first officer met the foundational requirements for offering testimony concerning Hunter's reputation. As to the second officer, the trial judge failed to make a finding as to whether this officer's knowledge of Hunter was sufficient to allow him to offer an opinion concerning Hunter's character.
Because Hunter's claim of self-defense was the major issue litigated at Hunter's trial, we conclude that these evidentiary errors require us to reverse Hunter's conviction on the murder count.
At Hunter's trial, the State presented the testimony of Anchorage Police Detective Pamela Perrenoud and the testimony of Anchorage Police Officer Jack Carson concerning Hunter's character for violence and aggression.
Detective Perrenoud testified that, because she was the lead investigator in the case, she looked into Hunter's background— and that, in the process of investigating Hunter's background, she learned that Hunter possessed " the tendency towards violence and aggression" . Later in the trial, Officer Carson testified that, in his opinion, Hunter was " a very aggressive person" .
Before the testimony of these officers was presented to the jury, the trial judge and the
attorneys discussed the admissibility of the testimony, and the prosecutor made offers of proof concerning the bases of both Perrenoud's and Carson's proposed testimony.
The prosecutor acknowledged that Detective Perrenoud had never personally encountered Hunter, and that Perrenoud's knowledge of Hunter and his character was wholly obtained through her investigation into Hunter's criminal background. According to the prosecutor's offer of proof, Perrenoud conducted this investigation by " [speaking] with a number of other law enforcement officers", and by " review[ing] a number of ... documents prepared by law enforcement officers" . The prosecutor told the court that Detective Perrenoud, through her examination of Hunter's " plethora of contacts ... with law enforcement", either learned or inferred " that [Hunter] has a reputation as being an aggressive or violent individual in the community" .
With regard to Officer Carson's opinion of Hunter's character for aggression, the prosecutor explained that Carson's opinion was based on a single encounter: One night in August 2006, Hunter was walking along the street, intoxicated, when he jumped out in front of Carson's patrol vehicle. Carson stopped his car and chased Hunter on foot. According to the prosecutor's offer of proof,
[Carson is] trying to chase Hunter down, [and] they get into a ... wrestling match on the ground, which culminates with Mr. Hunter grabbing Officer Carson by the testicles, and not releasing him despite being hit repeated times, until Officer Carson has to take the extreme measure of actually stomping on Mr. Hunter's head....
The prosecutor told the court that, " based on that [one] contact with Mr. Hunter", Carson had " formed [the] opinion ... that Mr. Hunter was an assaultive individual" .
With respect to Perrenoud's proposed testimony, Hunter's attorney raised two objections: first, that the proposed testimony did not meet the foundational requirements of Alaska Evidence Rule 405(a), and second, that Perrenoud had no personal knowledge of Hunter's reputation.
Evidence Rule 405(a) declares that when evidence of a person's character is admissible, a litigant may prove the person's character " by testimony as to [the person's] reputation in any community or group in which the individual habitually associated", or " by testimony in the form of opinion" . Hunter's attorney argued that Perrenoud's proposed testimony concerning Hunter's reputation within the law enforcement community was not admissible under Rule 405(a) because Hunter was not a member of the law enforcement community; that is, Hunter did not " habitually associate" with law enforcement officers as a group.
When the trial judge asked the prosecutor to respond to this argument, the prosecutor conceded that Hunter did not habitually associate with law enforcement officers. However, the prosecutor declared that Perrenoud's testimony would not really address Hunter's reputation within the law enforcement community. Rather, the detective's testimony would describe Hunter's reputation " in the community of Anchorage" at large— because the law enforcement officers whom Perrenoud polled (to gather her information concerning Hunter's reputation) were, themselves, members of the Anchorage general community.
In other words, the prosecutor argued that law enforcement officers were members of the community at large, and thus a person's reputation among law enforcement officers was the person's reputation within the community in general (even though that reputation was derived from a small sample of the community).
The trial judge decided to allow Perrenoud to testify about Hunter's reputation for aggression and violence, but not under the prosecutor's suggested rationale. Rather, the trial judge concluded that police officers could properly testify about " someone's reputation on the street" — i.e., someone's reputation within the general community— because " it's a function of law enforcement", and " a necessary [component] of their jobs", to formulate opinions about the propensity of various individuals to be law-abiding or non-law-abiding.
Hunter's attorney raised a second objection to Perrenoud's proposed testimony: he argued that it was improper for Perrenoud to testify about Hunter's reputation in the community when Perrenoud's knowledge of this matter was based on " reading police reports from other officers" . Responding to the defense attorney's objection, the trial judge ruled that this was a proper basis for Perrenoud to formulate her knowledge of Hunter's reputation.
With regard to Officer Carson's proposed testimony concerning his opinion that Hunter was an aggressive person, Hunter's attorney again objected on the ground that the proposed testimony did not meet the foundational requirements of Alaska Evidence Rule 405(a). Specifically, the defense attorney argued that a single meeting or encounter did not provide a legally sufficient basis for the officer to offer an opinion concerning Hunter's character under Evidence Rule 405(a). The trial judge rejected this argument, ruling that the officer's opinion was admissible even if it was based on a single instance or interaction.
Having rejected both of the defense attorney's objections, the trial judge allowed the prosecutor to present evidence of Hunter's propensity for aggression and ...