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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. City of Kodiak v. Samaniego (01/23/2004) sp-5772

City of Kodiak v. Samaniego (01/23/2004) sp-5772

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail     corrections@appellate.courts.state.ak.us.THE
     SUPREME  COURT  OF THE STATE OF ALASKACITY  OF  KODIAK,
     KODIAK           )POLICE   DEPARTMENT,   and          )
     Supreme    Court   No.   S-10365WILLIAM    D.    MARSH,
     )                              )     Superior Court No.
     Appellants,              )         3KO-98-00134      CI
     )     v.                        )     O P I  N  I  O  N
     )MARTHA  SAMANIEGO,       )    [No. 5772 - January  23,
     2004]                                                 )
     Appellee.
     )________________________________)Appeal    from    the
     Superior  Court of the State of Alaska, Third  Judicial
     District, Kodiak, Sharon L. Gleason, Judge.Appearances:
     Frank  S.  Koziol,  Law  Office  of  Frank  S.  Koziol,
     Anchorage,  for  Appellants.  Jeffrey A.  Friedman  and
     Kenneth   R.   Friedman,  Friedman,  Rubin   &   White,
     Anchorage, for Appellee.Before:  Bryner, Chief Justice,
     Matthews,  Eastaugh,  Fabe,  and  Carpeneti,  Justices.
     FABE, Justice.I.    INTRODUCTION
                Martha Samaniego sued the City of Kodiak for
     false  confinement and battery when Sergeant  Marsh  of
     the  Kodiak Police Department grabbed her and prevented
     her  from  leaving  the  scene of  an  Immigration  and
     Naturalization investigation.  At trial, the jury found
     that  Sergeant Marsh had falsely confined and  battered
     Martha  Samaniego.  The City of Kodiak appeals (1)  the
     superior court's denial of its summary judgment  motion
     on   the   question   whether   exigent   circumstances
     justifying  Marsh's detention of Martha  existed  as  a
     matter  of law; (2) the court's refusal to give a  jury
     instruction   proposed  by  Kodiak;  (3)  the   court's
     evidentiary rulings concerning expert testimony  and  a
     knife  at  the  scene;  and (4) the  court's  award  of
     attorney's  fees  to  Martha  Samaniego.   Because  the
     superior court's legal decisions were correct  and  its
     evidentiary   determinations  fell  well   within   its
     discretion, we affirm the superior court's rulings.
     II.  FACTS AND PROCEEDINGS
          A.   Factual History

          In April 1994 Kodiak Police Sergeant William D. Marsh

responded as back-up to a traffic stop conducted by Kodiak Police

Officer Bohac and two Immigration and Naturalization Service

(INS) agents.  Bohac and the INS agents were investigating

whether the people in the stopped car had documentation proving

that they were in the United States legally.  While the INS

agents and Bohac questioned the individuals, Julia Samaniego

drove up and stopped at the scene because she knew the people

under investigation.  She was driving with four of her children,

including her daughter Martha, and a friend.

          One of the INS officers approached Julia Samaniego's

car and asked her where she was from.  According to the INS

officer, Julia Samaniego replied "Mexico."  The INS officer asked

Julia Samaniego for her immigration documents, and Samaniego

replied that the documents were at her house.  The INS officer

then asked whether Julia Samaniego had any identification with

her, to which Samaniego replied "no."  At that point, Sergeant

Marsh approached Julia Samaniego's car.

          At this point, Sergeant Marsh and Julia Samaniego's

accounts of what happened diverge.  According to Julia Samaniego,

Sergeant Marsh told her "get out of the car or I [will] do it for

you" and proceeded to pull her by the arm out of the car.

According to Sergeant Marsh, he asked Julia Samaniego to step out

of her car and offered his arm to help her.  Julia Samaniego left

the car and had a conversation with Marsh.  While they were

talking, the INS agent spoke to Samaniego's children, who were

still in the car.  According to Martha Samaniego, who was fifteen

years old at the time, the agent asked the children individually

where they were from and whether they had identification.  Martha

testified that when the agent asked her where she was from, she

first replied "Mexico," but she then told the agent that she was

just kidding and that she was born in the United States.  Martha

then decided to go home to get her mother's immigration and

identification papers.  She left the car and started to walk

away.  Martha explained that when her mother saw her walking

away, her mother told her to wait and asked her where she was

going.

          It is uncontested that after Martha explained where she

was going, Marsh grabbed her.  Julia Samaniego pulled Martha

behind her and stood between Martha and Sergeant Marsh.  Martha

testified that Julia told Marsh not to touch Martha.  According

to Martha, Marsh then attempted to arrest Julia and started to

walk her to the back of the Samaniegos' car.  Martha watched this

as she was being held with her hand behind her back by an INS

agent.  Martha testified that during this confrontation, her

mother's shirt had lifted up, and Martha wanted to reach out and

pull it back down.  Martha explained that she slipped out of the

jacket she was wearing, left the INS officer holding the jacket,

and took a step forward toward her mom to pull the shirt down.

According to Martha, another officer stopped her and then the INS

agent regained control over her, holding her until the incident

was over.

          Also relevant to this appeal are facts concerning a

knife at the scene of the incident.  On April 9, 1994, before the

confrontation with the police occurred, the Samaniego family went

to a rodeo.  At the rodeo, Martha Samaniego found a knife, which

she gave to her mother who put it into her pocket.  Besides

keeping the knife away from her kids, Julia Samaniego testified

at her deposition that she did not know what she planned to do

with the knife.  The knife was never used during the

confrontation nor was it discovered by the police until after

Julia was arrested.

          B.   Procedural History

          Martha Samaniego sued the City of Kodiak, the Kodiak

Police Department, and Kodiak Police Sergeant William D. Marsh

for assault and battery, false arrest, and false imprisonment.

The parties stipulated that Martha Samaniego's case against the

City of Kodiak be consolidated with her mother Julia Samaniego's

case as both cases involved common issues of law and fact.1

          Martha and Julia Samaniego filed a pre-trial motion in

limine to exclude any evidence "concerning or referring to the

pocketknife possessed by Julia Samaniego at the time of her

arrest."  Kodiak opposed the motion, arguing that introduction of

evidence of the knife was integral to its case.  Over Kodiak's

objection, Superior Court Judge Sharon L. Gleason granted the

motion to bar any reference to Julia Samaniego's possession of

the knife.  The superior court also noted that if Kodiak believed

that the evidence became admissible during trial, it could raise

the issue with the court outside of the jury's presence.

          Kodiak moved for summary judgment against Martha

Samaniego arguing that it was entitled to prevail on the question

whether exigent circumstances existed as a matter of law.  The

superior court denied this motion.

          The Samaniegos moved to exclude the testimony of

Michael A. Brave, one of Kodiak's expert witnesses.  Brave is an

expert on the use of force.  The court granted the motion to

exclude Brave's testimony, finding that his expert opinion

contained credibility determinations regarding the witnesses in

the case and would usurp the court's role in instructing the jury

on the applicable law of "reasonable force."  For these reasons,

the superior court concluded that Brave's opinion would not

assist the jury as required by Alaska Rule of Evidence 702.

          Martha Samaniego presented four issues to the jury: (1)

whether Marsh, without legal justification, falsely confined

Martha Samaniego at the scene; (2) whether Marsh, without legal

justification, falsely confined Martha Samaniego when he brought

her to the police station and kept her there; (3) whether Marsh,

without legal justification, committed a battery on Martha

Samaniego when he kept her from leaving the scene; and (4)

whether Marsh, without legal justification, committed a battery

on Martha Samaniego when he handcuffed her.

          The jury found for Martha Samaniego on two of her

claims.  The jury determined that Marsh falsely confined Martha

at the scene, but not when he brought her to the police station

and kept her there.  The jury found that the confinement at the

scene was not a legal cause of injury to Martha and thus awarded

her $1 in nominal damages.  Finding that Marsh committed a

battery on Martha when he kept her from leaving the scene, but

not when he handcuffed her, the jury awarded Martha $35,000 for

pain, suffering, and emotional distress resulting from the

battery.  The jury rejected Martha's claim for punitive damages

against Marsh.  The superior court entered final judgment for

Martha for $35,001 in damages, plus $12,887.67 prejudgment

interest, $7,288.87 attorney's fees, and $1,725.80 costs, for a

total judgment of $56,903.34.

          Kodiak appeals the superior court's denial of its

summary judgment motion, the court's refusal to give the jury a

certain proposed instruction, its exclusion of evidence regarding

the knife and Brave's expert testimony, and its award of Alaska

Civil Rule 82 attorney's fees to Martha Samaniego.

III. STANDARD OF REVIEW

          We review a superior court's denial of a motion for

summary judgment under the independent judgment standard.2  Under

that standard, we determine whether any genuine issue of material

fact exists and whether the movant is entitled to judgment on the

law.3  We view the facts in the light most favorable to the non-

movant.4

          In reviewing the superior court's rulings on jury

instructions, we apply our independent judgment to determine

whether the challenged or refused instruction states the law

correctly.5  We then evaluate whether any error was prejudicial

by putting ourselves " `in the position of the jurors and

determining whether the error probably affected their judgment.'

"6  The appellant bears the burden of proving prejudicial error.7

          We review the superior court's evidentiary decisions

under the abuse of discretion standard.8  We will find that the

superior court abused its discretion only when we are left "with

a definite and firm conviction, after reviewing the record as a

whole, that the trial court erred in its ruling."9

          We will overturn a superior court's award of attorney's

fees "only upon a showing of abuse of discretion or a showing

that the award is manifestly unreasonable."10

IV.  DISCUSSION

     A.   The Trial Court Properly Applied the Exigent
          Circumstances Test To Determine Whether the Detention
          of  a Witness Is Permissible.
          
          The issue of what test to apply to the detention of a

witness arose in two contexts during the trial proceedings.

First, Kodiak argued in its motion for summary judgment that

exigent circumstances existed as a matter of law.  Therefore,

Kodiak argued, Marsh was authorized to use reasonable force to

stop Martha Samaniego, a potential witness, from leaving the

scene.  In support of its position, Kodiak argues for the first

time on appeal that no exigency should be required for a police

officer to use reasonable force to detain the driver and

passengers of a vehicle for the duration of a traffic violation

investigation or INS investigation.  Second, Kodiak appeals the

superior court's refusal to give Kodiak's proposed jury

instruction, which permitted the jury to find that Marsh was

legally justified in using reasonable force to stop Martha from

leaving the scene because she was a material witness to the INS

investigation of her mother.

                    1.   Exigent circumstances are required to
               justify the stop of a witness to a crime.
               
          The court of appeals addressed the question whether

police may detain a witness at a crime scene in Metzker v. State11

and Castle v. State.12  In Metzker, it noted that "courts

generally seem to be in agreement that the fourth amendment does

not allow the police to stop potential witnesses to the same

extent as suspects of a crime."13  The court of appeals concluded

that "police are justified in stopping witnesses only where

exigent circumstances are present, such as where a crime has

recently been reported."14

          Metzker involved a possible assault victim who ran away

from the police, was intoxicated, and may have been in need of

medical attention.  After fleeing the police, the victim flagged

down a passing truck and left the scene.  Another officer

responded to the request to locate and stop the truck.  And

shortly thereafter, the second officer spotted the truck, stopped

it, and spoke with both the victim and the driver of the truck.

The Metzker court determined that these facts - specifically the

serious nature of the crime and a potentially injured victim -

constituted exigent circumstances thereby justifying the stop of

the truck driver as a witness to the crime.

          The court of appeals revisited the question of when

police may detain a witness at a crime scene in Castle v. State.

In Castle, a Fairbanks police officer stopped a vehicle because

one of its headlights was out.15  The officer discovered that the

driver's license was revoked.  As the officer took the driver

into custody, Castle, who was a passenger in the car, stepped out

of the car and walked away.  The officer chased and caught

Castle, and searched him for drugs, finding plastic bags

containing cocaine residue.  When Castle challenged the legality

of the stop, the state asserted that the officer was authorized

to stop Castle because the officer knew that Castle was a witness

to a crime: driving with a revoked license.  The court of appeals

in Castle reiterated its holding in Metzker: "the police are

justified in stopping witnesses only where exigent circumstances

are present."16  The court concluded that the officer's seizure of

Castle could not be justified under the theory that Castle was a

witness to a crime because of the lack of exigent circumstances.17

The Castle court reasoned that the crime was over, that there was

no ongoing or recently committed unsolved crime, that the officer

had already taken the driver into custody, that the officer had

no reason to believe that Castle possessed knowledge that would

materially aid the investigation, and that the officer was not

acting to ensure the health or safety of a crime victim as was

the case in Metzker.18

          Kodiak argues for the first time on appeal that we

should overrule Metzker and Castle and find that no exigency is

required for a police officer to detain the driver and all

passengers in the vehicle or at the scene for the duration of a

traffic stop.  If the driver or passengers fail to comply with an

order to remain, Kodiak advocates permitting an officer to use

reasonable force to detain them at the scene.

          In his treatise, Search and Seizure, LaFave endorses

the limits that the ALI Model Code of Pre-Arraignment Procedure

places on the detention of witnesses.  He contends that the

Fourth Amendment does not allow potential witnesses to be stopped

to the same extent as those suspected of crimes.19  The Model Code

also supports requiring exigent circumstances for the stop of a

witness.  It takes the position that an officer may detain a

witness only when: a serious crime occurred recently; the officer

reasonably believes that the witness's information will

materially assist in the investigation; and the detention is

necessary.  The Code requires that

          (i) [t]he officer [have] reasonable
          cause to believe that a misdemeanor or
          felony, involving danger or forcible
          injury to persons or of appropriation of
          or danger to property, has just been
          committed near the place where he finds
          such person, and (ii) the officer [have]
          reasonable cause to believe that such
          person has knowledge of material aid in
          the investigation of such crime, and
          (iii) such action is reasonably
          necessary to obtain or verify the
          identification of such person, or to
          obtain an account of such crime.[20]
          
          Many courts have adopted the exigent circumstances

requirement.21  The Ninth Circuit in United States v. Ward

reasoned that no exigent circumstances existed to justify pulling

a driver over for questioning as a witness when there was no

crime "afoot" and no emergency situation nor any need for

immediate action - such as a fear that the driver would leave

town.22  And in Hawkins v. United States, the District of Columbia

Court of Appeals found the stop of a crime victim unreasonable

when "there was no fast-moving scenario, no just-completed crime,

and no flight."23

          While the brief detention of a potential witness may be

necessary under certain circumstances, we conclude, as did the

court in Metzker v. State24 and Castle v. State,25 that exigent

circumstances are required to justify the stop of a witness to a

crime.  Accordingly, the superior court did not err in applying

the exigent circumstances standard to Kodiak's request for

summary judgment.

          2.   The superior court did not err in denying Kodiak's
               motion for summary judgment.
               
          Kodiak argues that the trial court erred in denying its

motion for summary judgment against Martha.  In its motion for

summary judgment, Kodiak argued that Marsh was authorized to use

reasonable force to stop Martha, a potential witness, from

leaving the scene of an ongoing INS investigation of Julia

Samaniego.  Kodiak cited the court of appeals's decision in

Metzker v. State26 for the proposition that a police officer may

use reasonable force to prevent a witness from leaving the scene

of a crime, where exigent circumstances exist.  According to

Kodiak, because Marsh "reasonably believed the INS investigation

was continuing when Martha tried to leave the scene . . . [a]n

exigent circumstance" existed.

          The superior court denied Kodiak's motion for summary

judgment, reasoning:  "Based on sworn testimony presented by

[Martha Samaniego] with her opposition to the motion, a jury

could conclude that a reasonable officer would not have felt it

necessary or appropriate to use the force alleged to prevent

Martha from leaving the scene."  The superior court determined

that Kodiak had not demonstrated, as a matter of law, that

exigent circumstances existed to excuse Marsh's detention of

Martha.  We review the superior court's denial of a summary

judgment motion de novo.27

          In order to determine that the superior court erred in

denying Kodiak's motion for summary judgment, we would need to

conclude that there is no factual dispute and that exigent

circumstances existed as a matter of law.28  As both Metzker and

Castle illustrate, the determination of whether exigent

circumstances exist is fact specific.  The Metzker and Castle

courts each considered whether the crime involved was serious;

whether it was reasonable to believe that questioning the witness

would materially aid the investigation; and whether the health or

safety of a crime victim was at risk.29  The superior court was

correct in concluding that there were factual disputes as to the

reasonableness of Marsh's belief that Martha had information

regarding Julia's immigration status and that preventing Martha

from leaving would aid the INS investigation.  Thus, summary

judgment was inappropriate because a factual dispute existed.

          Additionally, the trial court was correct in its

conclusion that Kodiak had not demonstrated, as a matter of law,

that exigent circumstances existed to justify Martha's detention

as a witness.  Kodiak argues that this case is analogous to

Metzker.  According to Kodiak, Marsh was entitled to stop Martha

Samaniego as a witness to a crime because a federal misdemeanor

immigration offense had been admitted by Julia and was still

being investigated; Martha was a material witness to such an

offense; and questioning Martha could reveal useful information

about the crime such as whether or not a green card existed and,

if so, whether it was still valid.

          But Kodiak's argument fails, as the facts of Metzker

are distinguishable from those in the case before us.  In

Metzker, the court of appeals found the police officer's stop was

justified by exigent circumstances.  Specifically, "the police

were justified in stopping [the vehicle] because a passenger in

that vehicle was thought to be an assault victim who had just

fled the police, who was intoxicated, and who was possibly in

need of medical treatment."30  Here, no such exigent circumstances

were present.

          Indeed, this case is more analogous to Castle v. State,

where the court recognized that the officer "was not

investigating an ongoing or recently committed unsolved crime."31

Similarly, Julia Samaniego's crime was over - as soon as the INS

agent approached her and asked whether she had her immigration

documents or any form of identification, Samaniego admitted that

she did not.  As in Castle, Officer Marsh "had no reason to

believe that [Martha Samaniego] possessed knowledge that would

materially aid" his investigation of Julia Samaniego's alleged

offense.32  Additionally, as in Castle, Officer Marsh was not

acting to "ensure the health or safety of a crime victim, as was

[the case] in Metzker."33  Thus, Kodiak failed to demonstrate, as

a matter of law, that exigent circumstances existed to justify

Marsh's stop of Martha Samaniego.  We conclude that the superior

court did not err by denying Kodiak's motion for summary

judgment.

                    3.   The superior court did not err in
               refusing to give Kodiak's proposed jury
               instruction because the superior court correctly
               concluded that no exigency existed that would
               justify detaining Martha as a witness .
               
          Kodiak challenges the court's refusal to instruct the

jury "that Marsh was entitled to use reasonable force to stop a

material witness from leaving the scene of a criminal

investigation by the INS agents."

          The proposed instruction provided:

               William Marsh was legally justified to
          use reasonable force to stop Martha Samaniego
          from leaving the scene as a witness to the
          INS investigation into Julia Samaniego's
          immigration status if, based upon the
          preponderance of the evidence, William Marsh:
          
                    1.   Reasonably believed the INS
          investigation into Julia Samaniego's
          immigration status was ongoing at the time he
          stopped Martha.
          
                    2.   Exigent circumstances existed
          at the time William Marsh stopped Martha
          Samaniego.
          
          First we must address whether Kodiak properly preserved

the right to appeal the superior court's refusal to give the

requested instruction.  Alaska Rule of Civil Procedure 51

provides that a party may not assign as error the failure to give

a particular instruction "unless the party objects thereto before

the jury retires to consider its verdict, stating distinctly the

matter to which the party objects and the grounds of the

objection."34

          Before closing arguments, jury instructions were

discussed.  When  Judge Gleason told the parties that it was

"time . . . for objections to instructions," Kodiak's attorney

raised the issue of its proposed instruction on reasonable force

to stop a material witness, stating:

          And then you have given us legal
          justification on the stopping of Martha at
          the scene, those are 15 and 16, and we had
          requested an instruction based on the theory
          of Martha being a material witness, leaving
          the scene, material witness to the
          immigration investigation, potential criminal
          investigation of Julia Samaniego, and I think
          the court decided not to give us that?
          
Judge Gleason responded:  "Right.  My reading of the Metzker and

Castle cases would make that my view that that instruction is

inappropriate."  To that, Kodiak's attorney replied:  "Right."

Then the proceedings moved on without further discussion of the

court's refusal to give Kodiak's proposed instruction.

          Alaska Rule of Civil Procedure 51 provides that a party

must object to the failure to give an instruction.35  Where an

attorney wishes to note an objection to the court's failure to

give an instruction, he or she must state "distinctly the matter

to which the party objects and the grounds of the objection."36

Here, Kodiak's counsel's remark did not clearly lodge an

objection.  On the other hand, Kodiak did broach the issue of the

trial court's failure to give its proposed instruction.  While

Kodiak may have intended to raise the issue to challenge the

court's refusal to give the instruction, its response of "Right"

to the trial court's denial of the proposed instruction did not

distinctly state an objection or the grounds as required by Rule

51.  However, even if the objection was preserved, Kodiak's claim

fails on the merits.

          In reviewing a proposed instruction, we must consider

whether the proposed instruction correctly stated the law.37  The

proposed jury instruction asserted that if exigent circumstances

existed, Marsh was legally justified in using reasonable force to

stop Martha Samaniego from leaving the scene of the INS

investigation.  The instruction states the holding of Metzker

correctly and in that sense correctly states the law.  However,

Judge Gleason concluded that the exigent circumstances

requirement of  Metzker and Castle was not satisfied, rendering

the proposed instruction inappropriate. A review of the record

supports her view because the key facts about the event at the

scene of the INS investigation are not disputed.  It is

uncontested, for example, that Marsh grabbed Martha Samaniego.

The question then is whether Marsh's act of restraining Martha

was justified.

          The trial court was correct in its determination that

no facts in the record  suggested that "exigent circumstances"

existed at the scene.  Marsh was not privileged to detain Martha

for Julia's investigation.  As in Castle, Marsh "was not

investigating an ongoing or recently committed unsolved crime."38

Additionally, Marsh "had no reason to believe that [Martha

Samaniego] possessed knowledge that would materially aid" his

investigation of Julia's alleged offense.39  Finally, Marsh was

not acting to "ensure the health or safety of a crime victim, as

was true in Metzker."40  Thus, the superior court was correct in

rejecting the instruction because as a matter of law no exigent

circumstances existed.

          B.   The Superior Court Acted Within Its Discretion in
          Precluding Evidence of the Knife .
          
          On April 9, 1994, before the confrontation with the

police, the Samaniego family went to a rodeo.  At the rodeo,

Martha Samaniego found a knife, which she gave to her mother who

put it into her pocket.  Besides keeping the knife away from her

kids, Julia Samaniego testified at her deposition that she did

not know what she planned to do with the knife.

          Before trial, Julia and Martha Samaniego moved to

preclude at trial the presentation of evidence concerning the

knife that Julia possessed at the time of her arrest.  Kodiak

opposed the Samaniegos' motion in limine, arguing generally that

evidence of the knife was relevant to its case and specifically,

with regard to Martha, that "Martha's attempted intervention into

the fray can [] be explained as an attempt to interfere with the

arrest and prevent the police from discovering the butterfly

knife."

          The superior court ordered Kodiak not to introduce

evidence referring to or concerning Julia Samaniego's possession

of a knife, but noted that if Kodiak believed during trial that

the evidence had become admissible, it should raise the issue

with the court outside the presence of the jury.  The superior

court found that while Julia Samaniego's possession of the knife

might have some relevance, the prejudicial impact of the evidence

outweighed its probative value.41

          At trial, the subject of the admissibility of evidence

regarding the knife resurfaced.  After Julia Samaniego's direct

testimony, the court discussed the issue of the knife with

counsel.  The court engaged in a Rule 403 balancing and

reiterated its pretrial ruling that there would be no mention of

the knife at trial.  The court concluded that evidence of the

knife might confuse the jury because the legality of the

possession was uncertain.  The court reasoned that the issue of

the knife was "unnecessary or outside the central focus of the

issues in this case," and recognized that evidence of the knife

could result in unfair prejudice:  "[A] jury is more likely to

make its decision on an emotional basis when a knife is flipped

out in front of them and they're advised that Mrs. Samaniego had

this knife on her [person] when, in point of fact, it was

irrelevant in stage one [Marsh's detention of Martha at the

car]."

          On appeal, Kodiak argues that the superior court abused

its discretion in barring evidence of the knife from trial

because the evidence was relevant and important to its case.  But

the superior court acknowledged that evidence of the knife was

relevant both in its pre-trial order and in its discussions of

the knife during trial.  As this court has recognized,

"[r]elevant evidence is always subject to exclusion if, in the

discretion of the trial court, its probative value is outweighed

by the danger of prejudice or confusion, or by considerations of

undue delay."42  Our case law "recognizes that certain

circumstances call for the exclusion of evidence which is of

unquestioned relevance."43  Thus, while the evidence of the knife

may have been relevant to Kodiak's case, the superior court still

had considerable latitude to exclude that relevant evidence under

Alaska Rule of Evidence 403.

          Alaska Rule of Evidence 403 provides that the superior

court may exclude relevant evidence if the probative value of

that evidence "is outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or needless

presentation of cumulative evidence."44  Consequently, we will

only overturn a superior court's Rule 403 balancing determination

if there has been an abuse of discretion.45

          The superior court did not err in precluding evidence

regarding the knife.  The court acted within its discretion in

finding that evidence of the knife could lead the jury to make

its decision on an emotional basis or could confuse the jury

because of uncertainty as to whether possessing the knife was

legal.  Because the superior court did not abuse its discretion

in excluding evidence of the knife, we affirm the superior

court's decision.

     C.   The Trial Court Did Not Err in Precluding Kodiak's "Use
          of Force" Expert Witness.
          
          Before trial, Julia and Martha Samaniego moved to

exclude at trial the testimony of Michael A. Brave, Kodiak's "use

of force" expert witness.  Brave prepared an eight-page

preliminary expert witness report for Kodiak in 1996 in which he

addressed the use of a stun gun on Julia.  He included two short

paragraphs that described Marsh's seizures of Martha as

"objectively reasonable."  Brave based this assertion on his

belief that because Marsh and the INS agent had probable cause to

believe that Julia Samaniego had violated the law, Marsh had

reasonable suspicion to grab Martha as a witness to prevent her

from leaving the scene.

          The superior court granted the motion to exclude

Brave's expert testimony, determining that Brave's opinion as to

the reasonableness of force standard would not assist the jury

and therefore did not satisfy the requirements of Alaska Rule of

Evidence 702.  The court reasoned that this testimony would not

help the jury because it would "usurp[] the court's role of

instructing the jury on the applicable law."  The superior court

also noted that Kodiak sought to have Brave apply the standard of

reasonable force to the facts of the case.  The court found this

problematic because "[i]n so testifying, Mr. Brave may be making

his own credibility determinations regarding the witnesses in the

case."

          On appeal, Kodiak argues that the superior court erred

in excluding Brave's testimony because the testimony would have

been helpful to the jury.   Kodiak asserts that Brave would have

testified to the verbal and physical "options available to Marsh

as he confronted the situation of Martha walking away from a

criminal investigation scene."  Kodiak maintains that Brave would

have explained to the jury "why, through the use of force," it

was important for Marsh to keep Martha Samaniego, a witness, at

the investigation scene.  Brave did not make these points in his

report or in any subsequent offer of proof.   Indeed the vast

majority of Brave's testimony went to the appropriate use of a

stun gun.  Although Marsh used a stun gun on Julia Samaniego,

there was no stun gun involved in the incident between Marsh and

Martha.

          Alaska Rule of Evidence 702 governs the admissibility

of expert testimony at trial.  The rule provides:

               If scientific, technical, or otherwise
          specialized knowledge will assist the trier
          of fact to understand the evidence or to
          determine a fact in issue, a witness
          qualified as an expert by knowledge, skill,
          experience, training or education, may
          testify thereto in the form of an opinion or
          otherwise.[46]
          
          In Spenard Action Committee v. Lot 3, we explained that

Rule 702's helpfulness standard "requires that experts `stop

short of stating their own conclusions on [points that] the jury

is at least equally capable of [determining].' "47  Specifically,

in Spenard, we held that the superior court abused its discretion

in admitting police expert testimony that an establishment was

operating as a house of prostitution.48  We noted that courts

generally "prefer to let a jury apply general standards supplied

by experts to the specific facts of a case in order to reach its

own conclusion," rather than have the expert testify to her own

conclusion.49

          The superior court acted within its discretion in

determining that Brave's testimony would not assist the trier of

fact.  Brave's report contained solely conclusory opinions that

Marsh's actions toward Martha "were at all time[s] objectively

reasonable," and that Marsh's seizure of Martha was objectively

reasonable under the totality of the circumstances.  But Brave's

legal conclusion that Marsh properly seized Martha as a material

witness conflicts with the trial court's correct conclusion that

exigent circumstances did not exist.  The superior court did give

an instruction providing legal justification for Marsh's action

if the jury determined that Marsh reasonably believed that Martha

was subject to an INS investigation.  Brave's expert testimony

would not have been helpful to the jury on this point because his

opinion was based on Martha's status as a witness, not as a

subject of investigation.  Because the superior court did not

abuse its discretion, we affirm its decision on this issue.

          D.   The Superior Court Err Did Not Err in Declining To
          Adjust Martha Samaniego's Attorney's Fees Award.
          
          After trial, Martha moved for prejudgment interest and

attorney's fees.  In response, Kodiak argued that Martha

Samaniego was not the prevailing party and thus not entitled to

attorney's fees.  The superior court rejected Kodiak's argument

and awarded Martha Samaniego $12,887.67 in prejudgment interest

and $7,288.87 in attorney's fees.

          On appeal, Kodiak argues that Martha Samaniego's

attorney's fees award should be adjusted downward because

Kodiak's award against Julia Samaniego was adjusted downward by

ten percent.

          As a threshold matter, Kodiak argues this for the first

time on appeal.  There is no evidence that Kodiak raised this

argument below and Kodiak has thus waived the argument.50

Moreover, we will overturn a superior court's award of attorney's

fees "only upon a showing of abuse of discretion or a showing

that the award is manifestly unreasonable."51  Kodiak has not made

such a showing.  Martha Samaniego was the prevailing party in

this case and there is no basis for adjusting Martha's award

downward solely because the superior court saw fit to do so in

Julia's case.  We affirm the superior court's award of attorney's

fees to Martha Samaniego.

V.   CONCLUSION

          Because the trial court did not err in denying Kodiak's

summary judgment motion, refusing to give a jury instruction

proposed by Kodiak, excluding Brave's expert testimony and the

evidence about the knife, and awarding attorney's fees to Martha

Samaniego, we AFFIRM the superior court's determinations.

_______________________________
1The  appeals in Martha and Julia's cases were brought separately
and Julia Samaniego's appeal was decided in Samaniego v. City  of
Kodiak, 80 P.3d 216 (Alaska 2003).
2Christensen v. NCH Corp., 956 P.2d 468, 474 (Alaska 1998).
3Id.; Geolar, Inc. v. Gilbert/Commonwealth Inc. of Michigan,  874
P.2d 937, 941 n.8 (Alaska 1994).
4956 P.2d at 474.
5General Motors Corp. v. Farnsworth, 965 P.2d 1209, 1214  (Alaska
1998).
6Id.  (quoting  Vincent by Staton v. Fairbanks Mem'l  Hosp.,  862
P.2d 847, 851 (Alaska 1993)).
7Id.
8Buster  v.  Gale, 866 P.2d 837, 841 n.9 (Alaska 1994)  (citation
omitted).
9Id. (citation omitted).
10Feichtinger v. Conant, 893 P.2d 1266, 1268 (Alaska 1995).
11797 P.2d 1219 (Alaska App. 1990).
12999 P.2d 169 (Alaska App. 2000).
13797 P.2d at 1221.
14Id.
15999 P.2d at 170.
16Id. at 173 (quotations and citation omitted).
17Id. at 173-74.
18Id.
194  Wayne  LaFave, Search & Seizure:  A Treatise on  the  Fourth
Amendment  9.2(b) (3d ed. 1996).
20ALI   Model  Code  of  Pre-Arraignment  Procedure   110.0(1)(b)
(1975).
21United States v. Ward, 488 F.2d 162 (9th Cir. 1973); Hawkins v.
U.S., 663 A.2d 1221 (D.C. 1995); State v. Ryland, 486 N.W.2d  210
(Neb.  1992) (concluding that stop violated the Fourth  Amendment
when it was for sole purpose of obtaining witness statement about
previous accident because it was "not an emergency matter").
22488 F.2d at 162.
23663 A.2d at 1226-27.
24797 P. 2d 1219 (Alaska App. 1990).
25999 P.2d 169 (Alaska App. 2000).
26797 P.2d at 1221.
27Christensen v. NCH Corp., 956 P.2d 468, 474 (Alaska 1998).
28Id. at 474.
29Castle, 999 P.2d at 173-74; Metzker, 797 P.2d at 1222.
30Castle, 999 P.2d at 173 (citing Metzker, 797 P.2d at 1221).
31Id.
32Id. at 173-74.
33Id. at 174.
34Alaska R. Civ. P. 51(a).
35Id.
36Id.;  see also Jaso v. McCarthy, 923 P.2d 795, 799-800  (Alaska
1996);  Brown  v.  Estate of Jonz, 591 P.2d  532  (Alaska  1979);
Mitchell v. Knight, 394 P.2d 892, 897 (Alaska 1964).
37General Motors Corp. v. Farnsworth, 965 P.2d 1209, 1214 (Alaska
1998).
38999 P.2d at 173.
39Id. at 173-74.
40 Id. at 174.
41See Alaska R. Evid. 403.
42Shane v. Rhines, 672 P.2d 895, 898 (Alaska 1983).
43Alaska  R. Evid. 403 advisory committee's note; see also  Yukon
Equip.  v.  Gordon, 660 P.2d 428, 436 (Alaska 1983); Lerchenstein
v. State, 697 P.2d 312 (Alaska App. 1985).
44Alaska R. Evid. 403.
45Alaska  Northern Dev., Inc. v. Alyeska Pipeline Serv. Co.,  666
P.2d 33, 42 (Alaska 1983).
46Alaska R. Evid. 702(a).
47902  P.2d  766, 780-81 (Alaska 1995) (quoting 3 Christopher  B.
Mueller  &  Laird C. Kirkpatrick, Federal Evidence  350,  at  628
(1994)).
48Id. at 781.
49Id. at 781.
50See Willoya v. State, 53 P.3d 1115, 1120 (Alaska 2002).
51Feichtinger v. Conant, 893 P.2d 1266, 1268 (Alaska 1995).