Wood v. State of Alaska

• Decision Date: 28 February 1992
• Docket Number: No. 90-35826,90-35826
• Citation: 957 F.2d 1544
• Parties: 34 Fed. R. Evid. Serv. 1373 Kenneth W. WOOD, Petitioner-Appellant, v. STATE OF ALASKA, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1544

957 F.2d 1544

34 Fed. R. Evid. Serv. 1373

Kenneth W. WOOD, Petitioner-Appellant, v. STATE OF ALASKA, Respondent-Appellee.

No. 90-35826.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 20, 1991.

Decided Feb. 28, 1992.

Nancy Shaw, Asst. Federal Public Defender, Anchorage, Alaska, for petitioner-appellant.

John A. Scukanec, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, Alaska, for respondent-appellee.

Appeal from the United States District Court for the District of Alaska.

Before TANG, REINHARDT and RYMER, Circuit Judges.

RYMER, Circuit Judge:

Kenneth Wood was convicted in Alaska state court of raping an adult woman, M.G. In a pre-trial hearing, the trial court issued a protective order excluding any evidence that M.G. had posed for Penthouse magazine and acted in X-rated movies and other sexual performances, and that she had shown Wood the Penthouse photographs and discussed her experiences with him. Wood appealed his conviction unsuccessfully in the Alaska state courts, arguing among other things that the exclusion of this evidence violated his Sixth Amendment rights. He then filed this petition for writ of habeas corpus in the district court on the same ground. The district court denied the petition, and Wood appeals.

We hold that excluding the evidence did not violate Wood's Sixth Amendment rights. The facts proffered, that M.G. posed for Penthouse and acted in pornographic movies and other sexual performances, are not relevant in themselves. We recognize that the facts that she showed Wood the Penthouse photographs and told him about her acting experiences are relevant to a limited degree because they are acts with the defendant that tend to establish the nature of their relationship. We conclude, however, that the trial court did not err in excluding evidence of M.G.'s modeling and acting, as well as evidence of her communicating those experiences to Wood, because the court could reasonably conclude that the prejudicial effect of the evidence outweighs its limited probative value. We therefore affirm.

I

Wood and M.G. met in October 1983. At the time, M.G. was living with her boyfriend, Bob Berube, and Wood was their neighbor. Wood and M.G. became friends, seeing each other frequently over the next six months.

Wood and M.G. dispute the nature of their relationship during those six months. Wood testified that they had a sexual relationship and had intercourse regularly, even though M.G. was still somewhat involved with Berube. He also said that a common occurrence for them was to have an argument and then, after resolving the argument, have sex. He presented several witnesses who testified to their perceptions that Wood and M.G. had a sexual relationship. M.G. testified that, to the contrary, their relationship was platonic. She said that they did not have intercourse, although she did admit that one night when they were both drunk, they did engage in kissing and petting. She also testified that she had an off-and-on relationship with Berube, but that she slept with Berube almost every night even during the times that they were separated. She confided in Wood about some of the problems she and Berube were having.

On April 11, 1984, M.G. was visiting at a friend's house when Wood showed up and wanted to talk to her about their relationship. M.G. did not want to talk to him about it. Wood testified that their sexual relationship had slowed down by that time because M.G. was confused about her feelings toward him and toward Berube. M.G. explained in her testimony that she had been trying to drop Wood out of her life because he wanted more than a platonic relationship and she did not. Wood finally persuaded M.G. to leave the friend's house and go with him to get cigarettes.

While they were in the car, Wood persisted in trying to talk about the relationship, and they began to argue. M.G. asked that he drive her home, and when he refused she tried to jump out of the moving car. Wood struck her several times after she tried to get out of the car. Wood testified that he only slapped her to get her to calm down. M.G. testified that he hit her head against the dashboard, and that he pulled out a gun and threatened to use it on her.

Wood then drove M.G. to another male friend's home where M.G. had been staying. Wood testified that M.G. had calmed down and that they had reconciled their differences at that point. He said that they then went into the friend's apartment and made love and that it was entirely consensual. M.G. testified that he threatened to hurt her if she did not go in the apartment and that he again pulled out the gun. She agreed to go in with him, and he put the gun back under the seat of the car. She testified that he told her to go into the bedroom and take off her clothes and that he would have sex with her "either willingly or forcefully." Once in the bedroom, she said he told her to lie down and be still and he would not hurt her. She complied, and they had intercourse and oral sex. Afterward, Wood left the apartment and M.G. called Berube and reported the incident to the police.

Before trial, the state moved for a protective order under Alaska's rape shield statute to prevent Wood from introducing evidence of M.G.'s prior sexual conduct. Alaska Stat. § 12.45.045(a) requires the court to determine, in an in camera hearing, the admissibility of evidence of previous sexual conduct:

If the court finds that evidence offered by the defendant regarding the sexual conduct of the complaining witness is relevant, and that the probative value of the evidence offered is not outweighed by the probability that its admission will create undue prejudice, confusion of the issues, or unwarranted invasion of the privacy of the complaining witness, the court shall make an order stating what evidence may be introduced and the nature of the questions that may be permitted. The defendant may then offer evidence under the order of the court.

At the pre-trial hearing on the motion, Wood testified that several months before the alleged rape, M.G. told him that she had posed for Penthouse, acted in pornographic movies, and had been paid to have sex in a room full of mirrors with people taking pictures. He had a copy of the Penthouse magazine, and the state conceded that it was M.G. in the photographs, but he did not have copies of any films. Wood testified that M.G. showed him the Penthouse photographs, and he testified that he perceived that "in some respects it seemed to be sexual come-on" but that it was not "totally" a come-on. At some time after that, he said, M.G. approached him directly and said she wanted to have sex with him. He testified that about a week after that, they did have intercourse for the first time.

Wood's counsel argued that the evidence of these sexual acts and the fact that M.G. had presented them to Wood was relevant to show that the two had a sexual relationship. After hearing testimony of Wood's witnesses and considering the government's proffer of M.G.'s testimony, the trial court ruled that the evidence would be excluded. It explained:

The defendant himself here placed only the most tenuous contact I think between the photographs and the consent issue. If he indeed sincerely believed that she was promiscuous and rather loose, he certainly had his own independent fund of information to conclude that. Perhaps it might be the relative ease with which he and she formed a sexual liaison. Perhaps it's something as yet unspecified in this record that they talked about and what he suspected. That's never been stated as to, you know, what her contact--or conduct with others might have been, and I think that it adds almost nothing to establishing the consent issue, whereas even in today's modern times as the state correctly argues, it's very--it is possible that some people even in today's modern times would have such a negative view of such a person that they would revert to what was the time-honored position which would virtually deny a person with this in her background the protection of the rape law. A bad social result and one that society has clearly gone beyond.

The trial court concluded: "So no use will be made of these exhibits [the Penthouse photographs]. They will not be introduced. They will not be referred to and both sides will be required to scrupulously instruct their witnesses that these issues are not to be inquired into." It also prevented the introduction of any evidence relating to M.G.'s pornographic acting.

Wood was found guilty at trial of two counts of sexual assault in the first degree. He appealed his conviction to the Alaska Court of Appeals. Among other grounds, he argued that the exclusion of the evidence of M.G.'s past sexual conduct violated his Sixth Amendment rights to confront the witnesses against him and to present a defense. The Court of Appeals affirmed the conviction in a 2-1 decision. Wood v. State, 736 P.2d 363 (Alaska Ct.App.1987). It concluded that the trial court did not abuse its discretion in excluding the evidence because it had limited probative value, and whatever value it had was outweighed by its probable prejudicial effect. In dissent, Judge Singleton opined that Wood should have been permitted to examine M.G. regarding the possibility that she informed the defendant of her "modeling" experience. Id. at 367-68 (Singleton, J., dissenting). Wood then appealed to the Alaska Supreme Court. The Supreme Court initially granted review but after receiving formal briefing, vacated its order granting review. Two of the five justices dissented from the denial of review and would have reversed the conviction.

Wood then filed this petition for writ of habeas corpus in the district court under 28 U.S.C. § 2254, again arguing that the trial court's exclusion of the evidence violated his Sixth Amendment rights. The district court denied the petition. It reasoned that Wood did not...