Wonhola v. State, Court of Appeals No. A-11011
| Decision Date | 09 April 2014 |
| Docket Number | Court of Appeals No. A-11012,Trial Court No. 3DI-09-231 CR,Court of Appeals No. A-11011,Trial Court No. 3DI-09-229 CR,No. 6043,6043 |
| Parties | ROBERT B. WONHOLA, Appellant, v. STATE OF ALASKA, Appellee. |
| Court | Alaska Court of Appeals |
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.
MEMORANDUM OPINIONAppeal from the Superior Court, Third Judicial District, Dillingham, Vanessa H. White, Judge.
Appearances: Doug Miller, Law Office of Douglas S. Miller, under contract with the Office of Public Advocacy, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Coats, Senior Judge. *
Robert B. Wonhola was convicted of sexually assaulting two women on the same night. Both victims testified at Wonhola's trial, but one of them — O.A. — testified that she had no memory of the sexual assault, nor did she have any memory of describing the assault to a police officer who interviewed her shortly after the attack.
After O.A. testified that she had no memory of these occurrences, the trial judge allowed the State to play a recording of O.A.'s out-of-court statement to the police officer. On appeal, Wonhola argues that the admission of O.A.'s out-of-court statement violated the hearsay rule, and also violated his right of confrontation under the Sixth Amendment.
The hearsay claim
Alaska Evidence Rule 801(d)(1)(A) declares that when a witness testifies at a trial or hearing, there is a hearsay exception for out-of-court statements that the witness has made if those statements are inconsistent with the witness's in-court testimony.
Evidence Rule 801(d)(1)(A) further specifies that the proponent of "prior inconsistent statement" evidence must generally lay a foundation for the proposed evidence by examining the witness in such a way as to give the witness an opportunity to explain or deny the out-of-court statement.
The witness in question, O.A., testified that she had been drinking and that she was "very intoxicated". O.A. remembered essentially nothing from the time that Wonhola first tried to enter the house until the next morning. [Tr. 152-54] (O.A. testified that she had one isolated memory from the incident: a memory of seeing Wonhola's reflection in a bathroom mirror.)
O.A. acknowledged that she had listened to a recording of her police statement "three [or] four times", but she testified that she still did not recall making this statement to the police, and she further testified that listening to this recording had not helped her to remember anything about the incident.
After receiving these answers from O.A., the prosecutor asked the trial judge for permission to play the recording of O.A.'s statement to the police. The recording was played for the jury, and the trial court record does not reflect any objection by the defense attorney.
Now, on appeal, Wonhola argues that the audio recording was barred by the hearsay rule because it did not qualify as a prior inconsistent statement.
Our first answer to this argument is that hearsay evidence is admissible in the absence of an objection. 1 Because the record contains no objection from Wonhola's attorney, the recording was admissible even if O.A.'s out-of-court statement did not qualify for admission as a prior inconsistent statement under Evidence Rule 801(d)(1)(A).
Assuming for sake of argument that Wonhola's attorney did object to the admission of the recording, we will address Wonhola's specific claim.
Wonhola contends that O.A.'s statement to the police did not qualify as a "prior inconsistent statement" because a witness's statement describing a crime is not "inconsistent" with the witness's later testimony if they have absolutely no memory of the crime. But the rule under Alaska law is just the opposite: When a witness testifies that they have no memory of a criminal episode, the witness's earlier out-of-court statements describing that criminal episode are "prior inconsistent statements" for purposes of Evidence Rule 801(d)(1)(A). 2
Next, Wonhola contends that the prosecutor's questions to O.A. (and O.A.'s answers to these questions) were insufficient to establish the foundation required by Evidence Rule 801(d)(1)(A) — because (according to Wonhola) the prosecutor did not examine O.A. in such a way as to give her the opportunity to explain her prior statements or to deny making them.
But the record shows that the prosecutor repeatedly asked O.A. if she had any recollection of the events in question, and that O.A. repeatedly denied having any memory of the assault (aside from the isolated memory of seeing Wonhola's face reflected in the mirror).
O.A. acknowledged that she had even listened several times to the recording of her interview with the police, but she asserted that she still had no recollection of the events in question — nor even a recollection of being interviewed by the police. O.A. explained that she was very intoxicated, and that she had no memoryof anything from the time Wonhola first tried to come into the house until she woke up the next morning.
Given this record, the State established the required foundation for introducing O.A.'s police interview as a "prior inconsistent statement" under Evidence Rule 801(d)(1)(A).
The confrontation claim
Wonhola argues in the alternative that even if O.A.'s police interview was admissible under the hearsay exception codified in Evidence Rule 801(d)(1)(A), the admission of this evidence nevertheless violated Wonhola's Sixth Amendment right to confront the witnesses against him.
As we explained in the preceding section of this opinion, there is nothing in the record to show that Wonhola's attorney raised a confrontation clause objection to this evidence. Thus, Wonhola must show that the trial judge committed plain error under the Sixth Amendment by allowing the State to introduce this evidence.
We conclude that the admission of this evidence did not constitute error at all (much less plain error) under the confrontation clause.
O.A.'s statement to the police was played for the jury while O.A. was on the stand, during her direct examination by the prosecutor. Thus, O.A. was immediately available for cross-examination about the contents of her out-of-court statement (as well as cross-examination about everything she said during her direct examination).
Wonhola argues that, even though O.A. was on the stand, she was not really "available" for cross-examination because she essentially had no memory of the events discussed in her prior statement to the police. Wonhola asserts that a witness's "mere presence at trial" is insufficient to satisfy the demands of the confrontation clause whenthe witness "lacks all memory of both [their] previous statement and the events underlying the criminal charge".
Wonhola concedes that the United States Supreme Court apparently rejected this argument in United States v. Owens, 484 U.S. 554, 108 S.Ct. 838, 98 L.Ed.2d 951 (1988). In Owens, the Supreme Court held that the confrontation clause was not violated by the admission of an out-of-court identification made by the victim of an assault who, when called as a witness at trial, was unable to remember the occurrence due to brain injury. 484 U.S. at 559, 108 S.Ct. at 842.
Wonhola further concedes that, even after the Supreme Court reinterpreted the Sixth Amendment's confrontation clause in Crawford v. Washington,3 the great weight of authority continues to recognize Owens as the correct answer to Wonhola's argument.
Wonhola devotes approximately one-third of his brief to a detailed presentation of various reasons why one might conclude that this weight of authority is wrong. In essence, Wonhola contends that, because of the decision in Crawford, the decision in Owens must be reconsidered, and its holding must be limited.
But as we have explained, Wonhola presents this confrontation clause argument as a claim of plain error. It is obviously not "plain error" for a trial judge to make a ruling that comports with the current weight of authority.
Moreover, Wonhola's argument hinges on asking this Court to answer the question of whether the United States Supreme Court should now limit the holding of Owens in light of the interpretation of the confrontation clause that the court adopted in Crawford. The case law strongly suggests that we are not at liberty to do that. The United States Supreme Court has cautioned lower courts that they should not deviate from Supreme Court precedent, even when the Supreme Court's later decisions seemingly invalidate that precedent or call it into question:
[I]f a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, [a lower court] should follow the case which directly controls, leaving to this Court the prerogative of...
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