Komakhuk v. State, 013120 AKCA, A-12655

Docket Nº:A-12655
Opinion Judge:ALLARD JUDGE
Party Name:KENNETH HAROLD KOMAKHUK JR., Appellant, v. STATE OF ALASKA, Appellee.
Attorney:Bradly A. Carlson, The Law Office of Bradly A. Carlson, LLC, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. A. James Klugman, Assistant District Attorney, Anchorage, and JahnaLindemuth, Attorney General, Juneau, for the Appellee.
Judge Panel:Before: Allard, Chief Judge, Harbison, Judge, and Smith, Senior Superior Court Judge. Judge SMITH, concurring.
Case Date:January 31, 2020
Court:Court of Appeals of Alaska
 
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KENNETH HAROLD KOMAKHUK JR., Appellant,

v.

STATE OF ALASKA, Appellee.

No. A-12655

Court of Appeals of Alaska

January 31, 2020

Appeal from the Superior Court, Third Judicial District, Anchorage, Michael D. Corey, Judge. Trial Court No. 3AN-15-08600 CR

Bradly A. Carlson, The Law Office of Bradly A. Carlson, LLC, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.

A. James Klugman, Assistant District Attorney, Anchorage, and JahnaLindemuth, Attorney General, Juneau, for the Appellee.

Before: Allard, Chief Judge, Harbison, Judge, and Smith, Senior Superior Court Judge. [*]

OPINION

ALLARD JUDGE

Kenneth Harold Komakhuk Jr. was convicted, following a jury trial, of third-degree assault (under a recidivist theory) based on an altercation Komakhuk had with a bellman at the Marriott Hotel in downtown Anchorage.1 At trial, Komakhuk testified that he acted in self-defense and that the bellman was the initial aggressor.2 Over Komakhuk's objection, the State was allowed to introduce in its case-in-chief two character witnesses who testified that, in their opinions, Komakhuk was an aggressive and violent person when intoxicated. Both witnesses had limited knowledge of Komakhuk and they had each formed their opinions of his character based on a single prior incident in which Komakhuk had acted violently toward them in their capacity as law enforcement agents.

On appeal, Komakhuk argues that the trial court failed to fulfill its gatekeeping role with regard to this character evidence and he asserts that the error prejudiced his right to a fair trial. For the reasons explained here, we conclude that admission of this challenged character evidence requires reversal of Komakhuk's conviction.

Factual background

On July 28,2015, there was an altercation between Manuel Leal, who was working as a bellman at the Marriott Hotel, and Komakhuk, who was homeless at the time. At trial, the two men testified, presenting two different versions of events. No other witness to the altercation testified.

Leal testified that he was approached by an intoxicated Komakhuk while helping a guest at the hotel valet. Komakhuk asked for cigarettes, and when Leal said he had none and asked him to leave, Komakhuk became aggressive. According to Leal, Komakhuk left but he returned to the property a short time later and began interacting with a guest in the smoking area. Leal testified that he was concerned Komakhuk was bothering her, and he again told Komakhuk to leave. According to Leal, when he stepped in between the guest and Komakhuk, Komakhuk responded by pushing him, calling him a bitch, and then punching him in the face several times. After Komakhuk fled the property, Marriott staff contacted the police.

In contrast to Leal's testimony, Komakhuk testified that Leal was the initial aggressor in the altercation. Komakhuk testified that, on the day of the incident, he was intoxicated and with his friend, another homeless man. While on the way to the bus station, this friend asked a woman outside the Marriott hotel for a cigarette. Komakhuk testified that he walked over to the woman and apologized for his friend's behavior, but Leal misinterpreted this exchange as Komakhuk threatening her. According to Komakhuk, Leal walked over, grabbed Komakhuk by the vest, and started pushing him. Komakhuk testified that after Leal laid his hands on him, he responded by trying to push Leal away, at which point Leal swung at him. Komakhuk was able to dodge the punch, and he admitted to then hitting Leal a couple times - although he claimed he did so only in self-defense after Leal tried to punch him.

The State's character witnesses

Prior to trial, Komakhuk filed a notice of self-defense.3 In response, the State filed a motion under Alaska Evidence Rule 404(a)(2), seeking to rebut this self-defense claim by introducing character witnesses who would testify at trial that Komakhuk was a violent person.4

At the evidentiary hearing on the State's motion, the State presented two potential character witnesses.[5] The first witness, Amanda Ivins, worked for Anchorage Safety Patrol. In that role, she took protective custody of intoxicated individuals who could not take care of themselves or who were a threat to others. Ivins testified that she had interacted with Komakhuk "less than a half dozen times" through her work on the safety patrol. However, her opinion that Komakhuk was a violent person was based on a single incident at the sleep-off center in which Komakhuk had become angry and assaultive after being woken up from an alcoholic blackout. This incident occurred thirteen months before the altercation with Leal.

The State's second proposed character witness was Anchorage Police Officer Christopher Simmons. Officer Simmons was involved in the arrest of Komakhuk in the present case. However, approximately a year and half before the altercation in the current case, Simmons had an interaction with Komakhuk and it was this interaction that formed the basis for his opinion that Komakhuk was a violent person. During this interaction, an intoxicated Komakhuk "became belligerent" with the officer and had to be placed in handcuffs (and, ultimately, total restraints).

After both witnesses testified, the superior court heard argument about the underlying motion. Komakhuk's attorney argued that the State had failed to satisfy the foundational requirements under Hunter v. State, asserting that the limited interactions Ivins and Simmons had with Komakhuk were insufficient to allow them to meaningfully evaluate his character for aggression "in all the varying situations of life."6 The attorney noted that both witnesses had relied on how Komakhuk acted "when he was detained against his will for being intoxicated"- a specific circumstance that could have been a departure from, rather than reflective of, a person's normal character.

The prosecutor argued that there was a sufficient basis for the jury to hear this opinion testimony because both witnesses had "personal knowledge about Mr. Komakhuk and about his character because they personally interacted with him."

The trial court agreed with the prosecutor that no further showing was required, and that the opinions of both character witnesses was admissible. In its ruling, the trial court noted the existence of popular social science literature that suggested that "humans do reach opinions fairly rapidly with respect to an individual's character."

At trial, the State was allowed to present both character witnesses in its case-in-chief. In fact, the State's first witness at trial was Amanda Ivins, the Anchorage Safety Patrol character witness. Ivins testified that, based on her personal encounters with Komakhuk, she was of the opinion that "[w]hen he is intoxicated... [Komakhuk] does not control his behaviors very well, and is aggressive, especially towards authority." On cross-examination, Ivins acknowledged that she was not present during the altercation with Leal.

Officer Simmons testified later in the State's case-in-chief. Most of his testimony related to the arrest in the current case. But the final question posed on direct examination elicited testimony that, based on his personal exposure to Komakhuk, Officer Simmons developed an opinion that "[Komakhuk] is violent," at least when he is under the influence.

Following deliberations, the jury convicted Komakhuk of third-degree assault. This appeal followed.

Alaska Evidence Rule 404(a)(2) and the Hunter test

Under federal law and the law of most jurisdictions, the prosecution in a criminal case is allowed to introduce character witnesses against a defendant only z/the defendant has "opened the door" to such evidence either by introducing character witnesses of their own or by attacking the character of the victim.[7] Thus, if a defendant introduces evidence of their character for peacefulness, the prosecution is entitled to introduce evidence of the defendant's character for violence.8 Likewise, if the defendant introduces evidence of the victim's character for violence, the prosecution is entitled to introduce evidence of the defendant's character for violence (as well as evidence of the victim's character for peacefulness).9

There is also a special rule that applies primarily in homicide cases. Under this rule, the prosecution is entitled to introduce evidence of a victim's character for peacefulness to rebut evidence that the victim was the first aggressor.10 In other words, whenever a defendant claims self-defense and offers any type of evidence that the victim was the first aggressor, the prosecution can respond with evidence of the peaceable character of the victim. But this special rule is limited to evidence...

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