Coleman v. State, 4416

• Decision Date: 10 October 1980
• Docket Number: No. 4416,4416
• Citation: 621 P.2d 869
• Parties: Elijah COLEMAN, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 869

621 P.2d 869

Elijah COLEMAN, Appellant, v. STATE of Alaska, Appellee.

No. 4416.

Supreme Court of Alaska.

Oct. 10, 1980.

Michael T. Thomas and Pamela Finley, Juneau, for appellant.

James L. Hanley, Asst. Dist. Atty., Patrick J. Gullufsen, Dist. Atty., and Avrum M. Gross, Atty. Gen., Juneau, for appellee.

Before RABINOWITZ, C. J., and CONNOR, BOOCHEVER, BURKE and MATTHEWS, JJ. ^*

OPINION

RABINOWITZ, Chief Justice.

Elijah Coleman was convicted of one count of rape under former AS 11.15.120 ¹ and one count of assault with a dangerous weapon under former AS 11.15.220. ² Coleman argues on appeal that evidence of a prior rape conviction was improperly allowed into evidence, that the jury was given an erroneous instruction on the elements of assault with a dangerous weapon, that he was deprived of effective assistance of counsel and that his sentence was excessive. We affirm both convictions as well as the sentences which were imposed.

The victim of the crimes in question, B.E., testified that on April 5, 1978, she left her house in Juneau at 4:40 in the afternoon to go jogging. As she came around a sharp corner on a narrow, uninhabited dirt road near her house, she noticed a red pickup truck, with a chrome-rimmed spare tire mounted on its side, parked along the edge of the road. After going about fifty feet beyond this truck, she heard the sound of running footsteps overtaking her. Then the arm of a black man suddenly circled her throat and she was forcibly choked, lifted, and propelled into the woods alongside the road. There her assailant put her on the ground, held a hand to her throat, and pulled down the levi pants she was wearing, breaking the zipper in the process. The man attempted vaginal intercourse, then forced B.E. to engage in oral intercourse.

B.E. was then allowed to stand and pull up her clothing. But as she started to leave, the man grabbed her arm, saying he was not through with her and that he did not want her to tell anyone. At this point he picked up a fist-sized rock, forced B.E. to lie down once more, straddled her, and while holding the rock pushed her head to one side, causing B.E. to believe that the man was positioning her head in order to hit her with the rock. B.E. testified, however, that the assailant never raised the rock over his head or made any gesture which caused her to flinch or duck. According to B.E., a long period of discussion and prayer with the man then ensued, during which she promised she would not tell anyone of the event. The assailant promised he would not do such a thing again, and allowed her to leave.

As she walked back toward her house, her hands in the pockets of her sweatshirt in order to pull it over the broken zipper of her pants, B.E. met a neighbor. B.E. did not tell the neighbor about the incident, but the neighbor later testified to observing a red truck in the location described by B.E., which backed up as soon as the neighbor saw it. The neighbor also thought it strange that B.E. had her hands in the pockets of her sweatshirt jacket when she met her, due to the warmth of the day and the heat generated by jogging.

B.E. did tell a friend that evening what had happened, and the next morning contacted the Juneau Women Against Assault Group, upon whose advice she typed a two-page document detailing all she could remember of the event, including a description of the assailant, his clothing, and a watch he wore. She contacted the Alaska State Troopers two days after the incident and gave a lengthy statement. Upon being presented with a photographic lineup of nine black men, she immediately identified a photograph of Elijah Coleman as the assailant. The next day, while driving past a local eating establishment with her husband B.E. identified an unoccupied truck as the one parked on the dirt road at the time of the attack, and reported the license number to the police.

The police investigator ascertained that the vehicle was registered to Coleman, and upon obtaining an arrest and search warrant went to Coleman's apartment. There a jacket and pair of running shoes matching the detailed description provided in the statement typed by B.E. were found.

The time of the rape was determined from B.E.'s account to be approximately 5:00 p. m. After his arrest, Coleman was questioned and claimed to be at the Auke Bay Campus of the University of Alaska shortly before 5:00 p. m. preparing for a 6:00 p. m. class. Coleman was unable to suggest anyone who could verify his presence there at that time, though. The police later determined that it takes about six and one-half minutes to drive from the location of the rape to the Auke Bay Campus.

An investigator arranged a lineup in which B.E. positively identified Coleman as the man who raped her. The clothing the victim had worn during the incident, the clothing taken from Coleman's apartment, and lichen plant material taken from the site of the rape were sent to the FBI laboratory. There fibers similar to those from B.E.'s sweatshirt were found on Coleman's jacket, lichen material similar to that from the site of the rape was found on B.E.'s sweatshirt, and a semen-like chemical was found on the inside of the crotch area of B.E.'s pants, which she testified she only used for jogging. None of this evidence was rebutted at trial.

I. Evidence of prior crimes.

Coleman first asserts on appeal that the superior court erred in permitting the state to introduce testimony by a victim of a prior rape for which Coleman was convicted. Admission of evidence of prior bad acts is by its nature highly prejudicial and should always be subject to careful scrutiny. ³ Our review of the record indicates that in this instance the evidence was properly admitted.

The subject of prior bad acts is generally covered by Alaska Rule of Evidence 404(b), which provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

In this case evidence of the circumstances of the prior rape was properly admitted for the purpose of proving the identity of the assailant, by showing a distinctive modus operandi employed in both the prior rape of which Coleman was convicted and the rape of B.E. ⁴ Coleman argues that identity was not in issue, because his defense attorney in opening argument conceded that Coleman met with B.E. at the time in question. However, the state, in addition to the testimony of B.E. and her neighbor tending to establish that Coleman was the person who committed the rape, presented testimony that Coleman had denied being at the location of the crime or knowing B.E. This evidence remained undisputed by contrary evidence up to the time the case was submitted to the jury for deliberation. Further, defense counsel had the opportunity to stipulate that identity was not in issue at several times prior to the time the testimony of the prior rape victim was introduced, but failed to do so. ⁵ In these circumstances, defense counsel's remarks in opening argument did not provide sufficient assurance to the state that Coleman would not at some subsequent point during the trial dispute his presence at the scene of the crime, unlike other cases involving evidence of prior crimes where identity clearly was not in issue. ⁶

It is also our opinion that the evidence in question showed that the prior rape and the rape of B.E. were sufficiently similar and unusual in their common pattern to constitute a modus operandi probative of Coleman being the assailant in both instances. The testimony showed the two crimes shared common elements in the race and age of the victims, the situs chosen for the attack, the manner of subduing the victim, the type of intercourse which occurred, and the behavior of the assailant following the attack. Both victims were relatively young caucasian women, and were on foot near a wooded area when attacked. Each indicated that the first awareness of the assailant's presence was the sound of running footsteps behind her, and that the first realization that she was being assaulted was when the attacker placed his arm around her throat, choking her. In both instances, the attacker rapidly propelled the victim from behind, with his arm still around her throat, into the woods. In both instances oral intercourse was performed as well as an effort at vaginal intercourse (the prior rape also involved anal intercourse). Following both attacks the assailant discussed whether the victim would report him to the police, and allowed the victim to walk away. These characteristics are not so unique as to constitute a "signature crime," as one commentator suggests should be required to prove like identity, ⁷ nor is each of the above common features material standing alone. But a review of cases in this and other jurisdictions indicate that the similarities in the attacks, taken together, compare favorably with other instances where evidence of prior rapes has been held properly admitted for the purpose of proving identity. ⁸

To be properly admissible, the probative value of evidence of prior crimes cannot be outweighed by its prejudicial effect in illustrating bad character or propensity towards criminal conduct on the part of the accused. ⁹ In this regard, we note that the trial judge indicated his awareness of this requirement by carefully taking steps to ensure that the testimony regarding the prior rape was properly limited in its presentation before the jury, in order to minimize its prejudicial effect. Prior to trial, written notice of the content of the evidence and the purpose for which it would be introduced was requested and ruled upon. At trial, the judge admonished the jury as to the limited purpose of the evidence immediately prior to its...