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Andrews v. State (10/12/2012) ap-2378

Andrews v. State (10/12/2012) ap-2378

                                               NOTICE 



        The text of this opinion can be corrected before the opinion is published in the 

        Pacific Reporter.   Readers are encouraged to bring typographical or other formal 

        errors to the attention of the Clerk of the Appellate Courts. 



                               303 K Street, Anchorage, Alaska  99501
 

                                         Fax:   (907) 264-0878
 

                         E-mail:   corrections @ appellate.courts.state.ak.us
 



               IN THE COURT OF APPEALS OF THE STATE OF ALASKA 



DALE J. H. ANDREWS,                             ) 

                                                )          Court of Appeals No. A-10787 

                            Appellant,          )         Trial Court No. 3DI-08-00268 CR 

                                                ) 

             v.                                 ) 

                                                )                    O P I N I O N 

STATE OF ALASKA,                                ) 

                                                ) 

                            Appellee.           ) 

                                                )           No. 2378 - October 12, 2012 



                Appeal from the Superior Court, Third Judicial District, 

                Dillingham, Fred Torrisi, Judge. 



                Appearances: Brooke Berens, Assistant Public Advocate, and 

                Richard     K.   Allen,   Public    Advocate,    Anchorage,      for  the 

                Appellant.   Tamara   E.   de   Lucia,   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. 



                BOLGER, Judge. 



                Dale J. H. Andrews was charged with second-degree sexual assault in an 



indictment alleging that he had engaged in sexual penetration of T.P. while she was 



incapacitated. Prior to trial, the State did not list the nurse who examined T.P. as an 


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expert witness. Because of this, Andrews's attorney made a motion to preclude the nurse 



from offering any expert testimony. We conclude that the trial judge was not required to 



exclude this testimony because Andrews did not argue that he was surprised by the 



substance of the nurse's testimony. 



        Background 



                T.P.  and  her  friend,  Moses  Chythlook,  had   a  get-together  with   a   few 



friends, including Dale Andrews. The group was drinking beer and whiskey. Chythlook 



left the party at some point during the evening and went to drink at the Sea Inn Bar. T.P. 



testified that she then asked Andrews and the other guests to leave. 



                T.P. testified that she went into a guest bedroom to sleep. She did not invite 



anyone into the room with her. Later, she vaguely remembered feeling someone on top 



of her, and when she opened her eyes, she saw it was Andrews. The next thing T.P. 



remembered was waking up the next morning. 



                Chythlook testified that he left the bar and returned to the apartment after 



2:00 a.m. Chythlook saw Andrews leaving the back bedroom. When Chythlook opened 



the door to the bedroom, he saw T.P. on the floor half naked. Chythlook tried to wake 



T.P.   by  shaking  her   shoulders,   but   she   did   not   wake   up.   Chythlook   suspected   that 



Andrews had sexually assaulted T.P; he kicked Andrews out of the apartment. 



                Chythlook called two women and asked them to come to the apartment and 



help dress T.P. After the women dressed her, T.P. tried to get up and stumbled around 



the room. T.P. spoke with slurred speech and was "freaking out" because she thought the 



women were trying to do something to her. When T.P. attempted to leave the room, one 



of the women pushed T.P., and T.P. "flopped on the floor." 



                                                   2                                             2378
 


----------------------- Page 3-----------------------

               T.P.   woke   up   in   the   guest   bedroom  the   following   morning.   She   was 



wearing her clothes from the night before, but her pants were unzipped. Her genitals hurt 



and she had a bad headache. Chythlook told her that he believed Andrews had sexually 



assaulted her. Chythlook called the police, and T.P. went to the hospital. 



               At the hospital, Nurse Joan Junge performed a sexual assault examination. 



T.P. reported that she was sore in her vaginal and rectal area and that she experienced 



bleeding from her rectal area. Junge observed that T.P. had significant abrasions on her 



labial areas, and a jagged tear in her rectal wall. The nurse collected vaginal and rectal 



samples; DNA testing later matched the samples to Andrews's DNA. 



               Andrews was charged with second-degree sexual assault for engaging in 

sexual penetration with T.P. while she was incapacitated.1 



               At trial, the State called Nurse Junge to testify about the sexual assault 



examination. Andrews objected to Junge providing expert testimony because the State 

had not listed her as an expert. Superior Court Judge Fred Torrisi cited Miller v. Phillips2 



for the proposition that in some circumstances a treating physician may provide an expert 



opinion without being specifically disclosed as an expert. The judge  also stated that he 



was assuming that this witness had been known to the defense for a long time. But he 



invited defense counsel to object if he was mistaken about the facts or the law: "[U]nless 



I got the idea that ... there was some sort of surprise here or unless you pointed me to 



some case that I haven't looked at, I would be inclined to let her [provide her opinion]." 



               The following day, the judge ruled that notice was not required and he 



therefore overruled Andrews's objection. The court noted that Andrews could object to 



    1   AS 11.41.420(a)(3). 



    2   959 P.2d 1247 (Alaska 1998). 



                                                 3                                              2378 


----------------------- Page 4-----------------------

individual questions if he thought that the proffered testimony was outside the scope of 



Junge's expertise. 



                 Junge     testified   that  T.P.'s    injuries   were    not   likely   associated    with 



consensual      sexual    activity.   She   testified   that  vaginal    abrasions    are   unlikely   with 



consensual sex and that consensual anal sex did not usually result in tearing. The jury 



found Andrews guilty of second-degree sexual assault, and Andrews now appeals. 



        Discussion 



                 Andrews      argues    that   the  trial   judge  erred  when    he   admitted    Junge's 



testimony because the State failed to provide notice that Junge would offer an expert 



opinion on the conclusions to be drawn from the nature of T.P.'s injuries. Andrews 



concedes that he "did not argue to the [trial] court that he was surprised by the substance 



of the witness's expert testimony, apart from being surprised by the fact that she was 



being allowed to offer it." 



                 Alaska Rule of Criminal Procedure 16(b)(1)(B) provides that, no later than 



forty-five days prior to trial, "the prosecutor shall inform the defendant of the names and 



addresses of any expert witnesses performing work in connection with the case or whom 



the prosecutor is likely to call at trial." The prosecutor is required to "make available for 

inspection     and   copying     any   reports   or  written    statements    of   these  experts."3   The 



prosecutor      must    also  "furnish    to  the  defendant     a  curriculum     vitae   and   a  written 



description   of   the   substance   of   the   proposed   testimony   of   the   expert,   the   expert's 

opinion, and the underlying basis of that opinion."4 



    3   Alaska R. Crim. P. 16(b)(1)(B). 



    4   Id. 



                                                     4                                                  2378 


----------------------- Page 5-----------------------

                 The rule states that the "[f]ailure to provide timely disclosure ... shall entitle 

the defendant to a continuance."5 If the court concludes that "a continuance is not an 



adequate   remedy   under   the   circumstances   of   the   case,   the   court   may   impose   other 



sanctions,      including    prohibiting     the   prosecutor     from    calling   the   expert   at  trial  or 

declaring a mistrial."6      However, we have upheld trial court decisions refusing to provide 



these remedies for a violation of Rule 16 where the defendant was aware of the substance 



of the expert witness's testimony, because in those cases the failure to provide notice 

resulted in no unfair surprise.7 



                 In Hunter v. State , we recognized that some testimony cannot be clearly 

categorized as lay testimony or expert testimony, because it is a mix of both.8                   In Hunter , 



the defendant objected to the testimony of five Sexual Assault Response Team nurses on 

the ground that the nurses were not qualified to provide expert testimony.9                    In analyzing 



that claim, we concluded that the nurses had provided hybrid testimony - they provided 



lay   testimony   when   they   testified   about   their   personal   observations   of   the   victims' 



injuries, and they provided expert opinions when they testified about whether the injuries 

they observed were consistent with the victims' claims of sexual assault.10 



     5   Id. 



    6    Id.
 



    7    See,   e.g., Worden      v.  State,  213   P.3d   144,   146   (Alaska    App.   2009);  Russell     v.
 



Anchorage , 706 P.2d 687, 690 (Alaska App. 1985). 



     8   Mem. Op. & J. No. 5259, 2007 WL 2405208, at *13 (Alaska App. Aug. 22, 2007). 



    9    Id. at *12. 



     10  Id. at *13. 



                                                       5                                                  2378
 


----------------------- Page 6-----------------------

                 Andrews challenges Jung's testimony that vaginal abrasions are not likely 



consistent with consensual sex, that consensual anal sex does not generally   result in 



tearing, that T.P. appeared to be moving slowly to reduce discomfort and pain, and that 



T.P.'s headache and a lump on her head were consistent with her statements about what 



had happened to her. Like the testimony of the SART nurses in Hunter , these statements 



appear   to   be   based   on   a   mix   of   Junge's   personal   observations   and   her   training   and 



expertise as a nurse. 



                 The     supreme     court    has  upheld     the  admission      of  this  type    of  hybrid 



testimony even though the party offering the testimony did not provide the pre-trial 



notice   required   under   Alaska   Civil   Rule   26.   In  Miller   v.   Phillips ,   the   parents   of   a 

newborn child sued their midwife for malpractice. 11 At trial, the parents challenged the 



testimony of the supervising physician on the ground that the midwife had failed to list 

the physician as an expert witness.12 The trial court allowed the doctor to testify about 



"his expert observations [and] his own opinions as to what he observed."13 



                 The supreme court affirmed, explaining that "[w]hen physicians are called 



to   testify   about   matters   pertaining   to   the   treatment   of   their   patients,   the   distinction 

between an expert witness and a fact witness inevitably becomes blurred." 14 The court 



recognized   that   "[c]ourts   in   other   jurisdictions   have   often   recognized   that   treating 



physicians need not be listed as expert witnesses on pretrial disclosure lists, even when 



    11   959 P.2d at 1248. 



    12  Id. at 1250-51. 



    13  Id. at 1250. 



    14  Id. 



                                                       6                                                  2378
 


----------------------- Page 7-----------------------

their proposed testimony involves opinions regarding their patients' injuries, treatment, 

and prognoses."15 



                 The parents in Phillips  also argued that the midwife's failure to list the 

supervising physician as an expert caused them unfair surprise.16 The supreme court 



concluded that the parents knew the physician would testify at trial and that "they had 

ample advance notice of the substance of his opinions."17 The supreme court therefore 



concluded that the trial court did not abuse its discretion when it allowed the treating 

physician to state his opinions. 18 



                 Similarly, in Getchell v. Lodge, the Alaska Supreme Court determined that 



it was not an abuse of discretion for the trial court to allow a state trooper to testify about 



his opinions on causation and fault in a car accident, even though the defendant had 

listed the trooper as a fact witness on her witness list.19 Relying on Miller v. Phillips , the 



court concluded that, "[l]ike the treating physician in Miller , ... the investigating officer[] 



was 'intimately involved in the underlying facts giving rise to the litigation and ... would 

reasonably be expected to form an opinion through that involvement.'"20  Although the 



defendant listed the trooper as a fact witness, "it was not error to permit him to base his 



    15  Id.
 



    16  Id. at 1251. 
 



    17  Id.
 



    18  Id.
 



    19   65 P.3d 50, 55-56 (Alaska 2003). 



    20  Id. at 56 (quoting  Wakeford v. Rodehouse Rests. of Missouri, Inc., 610 N.E.2d 77, 80 



(Ill. 1993)). 



                                                       7                                                  2378
 


----------------------- Page 8-----------------------

opinions on his expertise."21        The supreme court also found that there was no unfair 



surprise:    Getchell was fully aware of the content of the trooper's proposed testimony 

and suffered no prejudice from the defendant's decision to list him as a fact witness.22 



                 Andrews argues that his case is distinguishable because he did not have 



actual notice of the substance of Junge's opinion testimony and that "[n]othing in the 



record indicates that the defense knew Junge's opinions regarding the consistency of the 



injuries with a sexual assault." But Judge Torrisi specifically stated that, unless Andrews 



argued that he had been surprised by this testimony, the judge would be inclined to allow 



Junge to provide her opinion. In response, as Andrews concedes, defense counsel "did 



not argue to the court that he was surprised by the substance of the witness's expert 



testimony, apart from being surprised by the fact that she was being allowed to offer it." 



                 Andrews   argues   that   it   was   the   State's   burden   to   demonstrate   that   the 



testimony was admissible. But if Andrews believed that Junge's testimony went beyond 



the scope of the discovery he received, it was his obligation to bring this fact to the trial 



judge's attention. Because Andrews did not argue that he was surprised by the substance 



of Junge's testimony, even when he was prompted by the trial judge, we conclude that 



the trial judge did not abuse his discretion when he allowed Junge to testify. 



         Conclusion 



                 We therefore AFFIRM the superior court's judgment. 



    21   Getchell, 65 P.3d at 56. 



    22  Id . 



                                                     8                                                2378 

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