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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| FREDERICK W. MORGAN III, | ) |
| ) Court of Appeals No. A-8639 | |
| Appellant, | ) Trial Court No. 1KE-99-368 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2056 July 28, 2006 |
| ) | |
Appeal from the Superior Court, First Judi
cial District, Ketchikan, Larry R. Weeks,
Judge.
Appearances: Brant G. McGee and Kathleen
Murphy, Assistant Public Defenders, and
Barbara K. Brink, Public Defender, Anchorage,
for the Appellant. Timothy W. Terrell,
Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Gregg D. Renkes and David W. M rquez,
Attorneys General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
COATS, Chief Judge, concurring.
Frederick W. Morgan III appeals his conviction for
second-degree sexual assault. This is the third time that his
case has come before this Court.
Originally, Morgans primary point on appeal was that
the superior court should have allowed him to introduce evidence
that the victim of the alleged sexual assault had knowingly made
false accusations of sexual assault in the past. In our first
decision in Morgans case, Morgan v. State (Morgan I), 54 P.3d 332
(Alaska App. 2002), we remanded Morgans case to the superior
court with directions to re-evaluate Morgans offer of proof
regarding this matter. And, because Morgan was tried by a judge
sitting without a jury, we told the superior court that, if the
court decided that Morgans proposed impeachment evidence should
have been admitted at his trial, the court was to then re-
evaluate Morgans guilt or innocence in light of this new
evidence.1
By the time Morgans case returned to the superior
court, his original trial judge had retired and was no longer
available to hear the continued proceedings. A new judge
Superior Court Judge Larry R. Weeks was assigned to Morgans
case.
After hearing Morgans offer of proof, and applying the
law that we announced in Morgan I, Judge Weeks concluded that
Morgan should have been permitted to introduce evidence at his
trial regarding a prior incident in which the victim
(1) privately accused another man of raping her (that is, she
voiced the accusation to a friend rather than to the police), but
then (2) withdrew the accusation a few days later and apologized
to the man involved. See Morgan v. State (Morgan II), Alaska
App. Memorandum Opinion No. 4981 (April 20, 2005), slip opinion
at 2; 2005 WL 901769 at *1.
Following this ruling, Judge Weeks reviewed the record
of Morgans trial, weighing the evidence presented at the trial in
light of the new impeachment evidence that he had just heard, to
re-assess whether the State had proved Morgans guilt beyond a
reasonable doubt. Judge Weeks concluded that, even with the new
evidence concerning the false accusation of rape, the evidence as
a whole still proved Morgans guilt beyond a reasonable doubt.
Morgan II, Memorandum Opinion No. 4981 at 2-3, 2005 WL 901769 at
*1. Judge Weeks therefore upheld Morgans conviction, and the
case came to this Court a second time.
In Morgan II, we upheld the renewed proceedings in most
respects, but we noted that Judge Weekss entry into the case had
created a new legal issue: Given Judge Weekss ruling that the
impeachment evidence should have been admitted at Morgans trial,
and given the fact that Morgans original trial judge was now
unavailable, was it lawful for Judge Weeks (or any other new
judge) to re-assess the totality of the evidence and re-determine
Morgans guilt? Or, was Morgan entitled to a new trial a trial
in which a single fact-finder would hear the entirety of the
testimony (that is, actually view the witnesses as they gave
their testimony)?
We deferred a final decision in Morgans case until the
parties briefed this issue. Morgan II, Memorandum Opinion No.
4981 at 18, 2005 WL 901769 at *9. We have now received and
considered the parties supplemental briefs, and we have again
reviewed the proceedings in the superior court (both the original
trial and the proceedings on remand).
As we explain in more detail here, we conclude that
Alaska Criminal Rule 25(b) authorizes a mid-trial substitution of
judges, even in a judge-tried case that is, even in a case where
the judge is sitting as the trier of fact. But the authority
granted by Rule 25(b) is circumscribed by the constitutional
guarantee of due process. Given the facts of Morgans case, we
conclude that the new impeachment evidence was potentially very
important to assessing the credibility of the victim and the
overall credibility of the States allegations so potentially
important that it was improper for Judge Weeks to re-determine
Morgans guilt by simply reviewing the record of the trial and
factoring in the new evidence. Under the facts of Morgans case,
due process requires that Morgan receive a new trial in which the
finder of fact can personally observe the witnesses as they give
their testimony.
A brief summary of the evidence presented at Morgans
trial, and a description of the impeachment evidence
that Judge Weeks ruled should have been admitted at
that trial
Morgan was accused of second-degree sexual
assault under AS 11.41.420(a)(3)(B) and (3)(C). The
State alleged (1) that Morgan engaged in sexual
penetration with a woman, T.F.; (2) that T.F., because
of extreme intoxication, was either incapacitated or
unaware that a sexual act was occurring; and (3) that
Morgan knew that T.F. was incapacitated or unaware that
a sexual act was occurring.
According to T.F.s testimony, she passed out
on Morgans couch after several hours of drinking with
Morgans wife and another friend. T.F. awoke to find
Morgan engaging in sexual intercourse with her, and she
immediately pushed him off. T.F. called her mother,
who persuaded her to contact the police and accompanied
her to the hospital for a sexual assault examination.
Morgan initially denied having sexual
relations with T.F.. On the night of the incident,
Morgan claimed that he had never touched her. But at
trial, Morgan conceded that he had engaged in sexual
penetration with T.F.. Morgan now asserted that his
sexual relations with T.F. had been consensual.
Morgans original trial judge resolved this
conflict in favor of T.F.s version of events; he
convicted Morgan of second-degree sexual assault.
One aspect of T.F.s testimony at Morgans
trial became more significant following our remand of
Morgans case to the superior court. During cross-
examination by Morgans attorney, T.F. was questioned
about an alleged earlier incident in which she falsely
accused a man, Chris Bevis, of rape. T.F. declared
that she had never accused Bevis of rape and that
anyone who said the contrary would be lying.
Although Morgans trial judge allowed the
defense attorney to cross-examine T.F. regarding her
alleged prior false accusation, the trial judge refused
to allow the defense attorney to present extrinsic
evidence on this point (i.e., extrinsic evidence
tending to show that T.F. had in fact made a false
accusation of rape).
As we explained at the beginning of this
opinion, the trial judges refusal to allow Morgan to
present extrinsic evidence on this point was the
primary issue originally raised in Morgans appeal. In
Morgan I, we clarified the rules governing the
admission of this evidence, and we directed the
superior court to re-evaluate the admissibility of the
extrinsic evidence that Morgan offered.
Pursuant to our decision in Morgan I, the
superior court (with Judge Weeks now presiding) held an
evidentiary hearing to re-examine the extrinsic
evidence tending to show that T.F. had knowingly made a
prior false accusation of rape. At this evidentiary
hearing, Judge Weeks heard the testimony of two
witnesses, Sally Garton and Chris Bevis.
Garton testified that, on one occasion, T.F.
came home early in the morning and claimed that she had
been raped by Bevis at a party. Following Gartons
testimony, Bevis took the stand and testified that,
after a night of drinking, he and T.F. engaged in
consensual sexual intercourse at a party. Bevis
further testified that T.F. later apologized to him for
rumors that this sexual encounter had been a rape.
Bevis could not remember whether T.F. or Garton had
started this rumor.
After hearing this testimony, Judge Weeks
concluded that, under the standard announced by this
Court in Morgan I, Morgan should have been allowed to
present this testimony at his trial. In other words,
Judge Weeks concluded that, more likely than not, T.F.
had knowingly made a false accusation of rape against
Bevis.
Although Judge Weeks did not explicitly say
this, his conclusion that T.F. probably falsely accused
Bevis of rape also suggests that T.F. may have
committed perjury when, during her cross-examination at
Morgans trial, she denied having accused Bevis of rape.
Nevertheless, Judge Weeks again found Morgan
guilty of sexual assault. After reviewing the evidence
presented at Morgans trial, and weighing the probative
force of the impeachment evidence that he had heard at
the evidentiary hearing, Judge Weeks concluded that the
evidence (taken as a whole) still established Morgans
guilt beyond a reasonable doubt.
Alaska law governing the substitution of judges in a
criminal trial, and why we conclude that Judge Weekss
re-evaluation of Morgans guilt was governed by Criminal
Rule 25(b)
Alaska Criminal Rule 25 contains two
provisions that authorize a new judge to assume
judicial duties in a criminal case if circumstances
prevent the first judge from continuing. Rule 25(b)
covers situations that arise during trial, while Rule
25(c) covers situations that arise after the verdict.
The pertinent portions of Criminal Rule 25 read:
Judge Disqualification or Disability
. . .
(b) During Trial. If a judge holding
superior court be prevented during a trial
from continuing to preside therein, the
presiding judge or the chief justice of the
supreme court shall designate another judge
of the superior court to ... complete [the]
trial, as if [that] other judge had been
present and presiding from the commencement
of [the] trial, [but only if there is a
complete] stenographic or electronic record
of [the] trial ... so that the [new] judge
... may become familiar with the previous
proceedings at [the] trial.
(c) After Verdict. If by reason of
absence from the district, [or] death,
sickness[,] or other disability, the judge
before whom the action has been tried is
unable to perform the duties to be performed
by the court after a verdict or finding of
guilt, any other judge regularly sitting in
or assigned to the court may perform those
duties; but if the other judge is satisfied
that a judge who did not preside at the trial
cannot perform those duties or that [a new
trial] is appropriate for any other reason,
that judge may grant a new trial.
As we noted in Morgan II, Morgans
case arguably presents a hybrid situation
involving both Rule 25(b) and Rule 25(c).
Criminal Rule 25(c) the post-
verdict rule governs Judge Weekss assignment
to hold the post-trial evidentiary hearing
and then decide the issue of whether Morgan
should have been allowed to present evidence
of T.F.s prior false accusation of rape. The
parties do not question Judge Weekss
authority to perform these duties.
But once Judge Weeks decided that
Morgan should have been allowed to present
this evidence, the next step was to decide
whether the totality of the evidence (i.e.,
the evidence presented at Morgans trial,
augmented by this new evidence) still
established Morgans guilt beyond a reasonable
doubt.
One might argue that this second
step of the process was also governed by
Criminal Rule 25(c) because Judge Weekss re-
assessment of the prior verdict in light of
the newly presented impeachment evidence
appears to be similar to the task that a
judge must perform when a defendant asks for
a new trial based on newly discovered
evidence. See Shapiro v. State, 793 P.2d
535, 536-37 (Alaska App. 1990), where this
Court relied on Criminal Rule 25(c) as the
basis for a substitute judges authority to
decide a defendants motion for a new trial
based on newly discovered evidence.
But a judge who decides a motion
for a new trial based on newly discovered
evidence begins with the presumption that the
defendants trial was fair and that the
verdict rendered at that trial should stand.
Because of this presumption, it is the
defendants burden to show that the new
evidence is in fact newly discovered, and
that this new evidence (if presented)
probably would lead to the defendants
acquittal.2
In contrast, Judge Weekss task in
Morgans case was to re-evaluate the evidence
as a whole without presuming the validity of
the earlier verdict. Judge Weeks was obliged
to apply the presumption of innocence that
governs criminal prosecutions, and to decide
anew whether the evidence established Morgans
guilt beyond a reasonable doubt. Thus, the
task confronting Judge Weeks was essentially
a pre-verdict inquiry. We accordingly
conclude that Criminal Rule 25(b) governed
his authority to perform this task.
Why we conclude that Criminal Rule 25(b) allows pre-
verdict substitution of judges in a judge-tried
case, but only when the substitution does not
violate the parties right to due process of law
Ninety years ago, in Freeman v. United
States, 227 F. 732 (2nd Cir. 1915), the Second Circuit
declared that the law forbade the pre-verdict
substitution of judges, even in jury trials that is,
even in trials where the judge was not sitting as the
trier of fact. The Second Circuit stated that the very
notion of a jury trial required an unchanging
combination of judge and jury, [both] of whom must
remain identical from the beginning [of the trial] to
the end.3 But that is no longer the law. The federal
government and many state governments have either
enacted rules or have construed their common law to
allow a mid-trial substitution of judges at least in
jury trials, where the judge is not the trier of fact.4
Alaska Criminal Rule 25(b) (the pre-verdict
portion of the rule) obviously authorizes the
substitution of judges in the middle of a criminal
trial. Moreover, Rule 25(b) does not explicitly limit
the mid-trial substitution of judges to jury trials.
Rather, the rule refers to the substitution of judges
during a trial.
The State points out that Rule 25(c) (the
post-verdict portion of the rule) appears to apply to
both jury trials and bench trials because Rule 25(c)
speaks of the substitution of judges after a verdict or
[a] finding of guilt.
In recent times, the word verdict has come to
mean the final decision at a trial, whether that
decision is rendered by a judge or a jury.5 Indeed,
both this Court and the Alaska Supreme Court have often
used the word verdict when referring to a judges
decision in a bench trial.6 But in its original,
narrower meaning, the word verdict refers only to
decisions rendered by a jury.7 The phrasing of Rule
25(c) appears to be premised on this distinction
between a verdict (i.e., a decision rendered by a jury)
and a finding of guilt (i.e., a decision rendered by a
judge in a bench trial). Thus, Rule 25(c) apparently
applies to both jury trials and bench trials. And, by
implication (under the principle of noscitur a sociis8
), Rule 25(b) would also apply to both types of
trial.
Morgan argues, however, that even though
Criminal Rule 25(b) may apply to both jury trials and
bench trials, the due process clause limits the scope
of this rule. In particular, Morgan contends that one
important aspect of due process of law is that the
trier of fact must personally hear all of the testimony
upon which the verdict hinges. Thus, the pre-verdict
substitution of judges is generally limited to jury
trials i.e., trials in which the judge is not the
trier of fact.
Morgan acknowledges that there may be rare
instances in which Criminal Rule 25(b) authorizes a
substitution of judges in a bench trial, but only in
situations where the new judge is not required to
resolve disputed issues of fact that hinge, in whole or
in part, on the testimony of witnesses heard by the
predecessor judge. Because Judge Weekss action in
Morgans case falls outside this narrow exception,
Morgan argues that the substitution of judges in his
case was improper.
The State agrees that the due process clause
limits the scope of Criminal Rule 25(b). The State has
forthrightly brought to our attention the Alaska
Supreme Courts decisions in Alexander v. State, 611
P.2d 469 (Alaska 1980), and Snyder v. Department of
Public Safety, 43 P.3d 157 (Alaska 2002).
In Alexander, our supreme court held that, as
a matter of due process, a single trier of fact must
hear all of the evidence bearing on disputed issues of
fact raised by a pre-trial motion.9 Compare United
States v. Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 65
L.Ed.2d 424 (1980), where the United States Supreme
Court rejected a due process challenge to a federal
statute which authorized a district court judge to
decide a suppression motion based on testimony heard by
a magistrate; the Supreme Court declared that the
guarantee of due process required only a hearing
appropriate to the nature of the case. Id., 447 U.S.
at 677, 100 S.Ct. at 2413.
In Snyder, the Alaska Supreme Court applied
this principle of due process to an administrative
hearing officers decision regarding the administrative
revocation of a drivers license. Snyder is analogous
to Morgans case in significant ways because in Snyder
an appellate court directed a lower tribunal to
reconsider its decision, and the original hearing judge
was no longer available to conduct the renewed
proceedings.
The Department of Public Safety revoked
Snyders drivers license based on the result of a breath
test he took following a motor vehicle accident.10
Snyder then invoked his right to administrative review
of the Departments action under AS 28.15.166.
At the administrative hearing, Snyder
testified that, even though he was intoxicated at the
time of the breath test, he had not been intoxicated at
the time of the motor vehicle accident. Snyder
asserted that the accident had occurred some two hours
before the breath test was administered. Snyder
further declared that he had had nothing to drink
before the accident, and that all of his alcohol
consumption occurred after the accident after he went
to the home of a friend to summon help, and then waited
for the authorities.11
The original hearing officer found that
Snyders testimony about the post-accident drinking was
credible, but the hearing officer also found that, even
though Snyders account of his post-accident drinking
was truthful, Snyders test result (.147 percent blood
alcohol) could not be fully explained by the amount of
alcohol that Snyder said he consumed at his friends
house. Thus, the original hearing officer concluded,
Snyder had not been telling the truth when he asserted
that he had had nothing to drink before the accident.
The hearing officer then upheld the administrative
revocation of Snyders drivers license, ruling that
Snyder had failed to prove that his blood alcohol level
had been below the legal limit at the time of the
accident.12
By placing the burden of persuasion on Snyder
that is, by requiring Snyder to affirmatively prove
that he was driving with a lawful amount of alcohol in
his blood, rather than requiring the Department to
affirmatively prove that Snyder was driving with an
unlawful amount of alcohol in his blood the hearing
officer committed legal error.13 Accordingly, when
Snyder appealed to the superior court, the State
conceded error, and the superior court directed the
hearing officer to reconsider the decision.14
But by the time Snyders case returned to the
Department of Public Safety, Snyders original hearing
officer had retired, and a new hearing officer was
assigned to conduct the renewed proceedings. Without
notice to the parties, this new hearing officer simply
reviewed the record of the earlier proceedings and then
came to her own conclusion about the truthfulness of
Snyders testimony.15 Based on Snyders prior record of
driving under the influence, and based on the fact that
Snyder had failed to mention his post-accident drinking
to the state trooper who administered the breath test,
the new hearing officer reached a different conclusion
regarding the credibility of Snyders hearing testimony:
The new hearing officer concluded that Snyder had been
lying when he testified about drinking at the home of a
friend after the accident.16 And, on this basis, the
new hearing officer upheld the administrative
revocation of Snyders drivers license.17
The supreme court held that the new hearing
officers re-assessment of the credibility of Snyders
testimony violated Snyders right to due process of law.
The supreme court explained:
Recently, in Whitesides v. State,
Department of Public Safety ... , we
considered the importance of live testimony
in administrative revocation hearings where
witness credibility may be at issue; we
concluded:
... that in-court testimony has
persuasive characteristics absent from
testimony given out of the presence of
the trier of fact. Where [a] witnesss
truthfulness is disputed, demeanor can
be important. In such cases, denying an
in-person hearing denies a party an
opportunity to present evidence in the
most effective way possible.
Whitesides, 20 P.3d 1130, 1137 (Alaska 2001).
Here, a fair reading of the superior
courts remand order establishes that [the
court] contemplated that this review would be
conducted by the original hearing officer
the same Hearing Officer [who] employed the
wrong burden of proof at the original
hearing. While [that hearing officers]
departure necessitated reassignment [of the
case] and may have justified a thorough
reexamination of [the earlier] findings, the
need for reassignment and reexamination could
not justify the new hearing officers decision
to reverse [the former hearing officers]
credibility findings without personally
hearing and observing the disputed testimony.
Snyder, 43 P.3d at 160-61.
The supreme courts decision in
Snyder supports the conclusion that Alaska
law allows the substitution of judges in
judge-tried cases like Morgans. But the
Snyder decision clearly demonstrates that the
due process clause imposes substantial limits
on the substitution of judges.
The State concedes as much.
However, the State argues that those limits
were not violated in Morgans case.
The States argument that Judge Weeks could properly re-
assess Morgans guilt or innocence without
personally hearing the witnesses who testified at
Morgans trial
The State contends that Morgans case presents
a situation where Judge Weeks could properly re-assess
Morgans guilt or innocence by simply reviewing the
record of Morgans trial. In particular, the State
argues that even when the resolution of factual
disputes hinges on a determination of witness
credibility, courts can sometimes decide the issue of
credibility without personally observing the witnesses.
In support of this argument, the State cites the words
of the Ninth Circuit in Carbo v. United States:
Credibility involves more than demeanor.
It [com]prehends the over-all evaluation of
testimony in the light of its rationality or
internal consistency and the manner in which
it hangs together with other evidence. ...
The inquiry then [should be] how importantly
demeanor appears to loom in making the
necessary credibility determinations.
Carbo, 314 F.2d 718, 749 (9th Cir. 1963).
The State asserts that demeanor [was] not a significant
factor in evaluating [the] credibility of the important
witnesses at Morgans trial. Thus, according to the State,
Judge Weeks could lawfully re-assess Morgans guilt or
innocence without personally hearing the testimony and
observing the demeanor of those witnesses.
The State notes that Morgan conceded at trial that he
had sexual relations with T.F. on the night in question.
The primary disputed issue at Morgans trial was whether the
sexual penetration was consensual (as Morgan claimed) or
whether, instead, Morgan knew that T.F. was incapacitated
and/or unaware that the sexual penetration was occurring (as
the State claimed).
The State asserts that it presented an overwhelming
case on this disputed issue. In making this assertion, the State
relies on four main factors. First, T.F. testified that she
never consented to have sexual relations with Morgan. Second, a
medical examination showed that T.F. had markings and injuries
that were consistent with her claim of non-consensual
intercourse. Third, T.F. promptly reported the sexual assault to
her mother and then, after talking to her mother, T.F. reported
it to the authorities. And fourth, Morgan gave inconsistent
accounts of his interaction with T.F.. (When T.F.s mother
arrived at Morgans house, Morgan declared that he had never
touched T.F., and that she was lying. Later, when Morgan spoke
to the police, he said that T.F. had made sexual advances to him,
and that he had nearly had sex with T.F., but he stopped when a
third person entered the room. By the time of trial, Morgans
attorney conceded that Morgan had had sexual intercourse with
T.F..)
It is true that there was substantial evidentiary
support for the States case. But the third prong of the States
proof T.F.s prompt report of sexual assault potentially loses a
significant degree of its probative force if the trier of fact
believes, as Judge Weeks believed, that there is credible
evidence that T.F. had previously falsely accused a man of rape.
We acknowledge that Judge Weeks, in his decision,
pointed out reasons why the circumstances of that prior false
accusation are arguably distinguishable from the circumstances of
Morgans case. But the circumstances of the two cases are
analogous in certain key respects. In particular, both cases
involved situations where T.F. engaged in heavy drinking in a
group situation and then accused a man of taking sexual advantage
of her.
Moreover, as we pointed out earlier, when Judge Weeks
found that T.F. had probably falsely accused Chris Bevis of rape,
he implicitly found that T.F. may have committed perjury when, at
Morgans trial, she expressly denied accusing Bevis of rape.
As to the fourth prong of the States proof Morgans
inconsistent and changing statements about the episode this
evidence can indeed be interpreted as demonstrating Morgans
consciousness of guilt. But the question is: guilt of what?
Morgan might have felt guilty because he sexually assaulted an
incapacitated woman. On the other hand, Morgan might have felt
guilty because he drunkenly committed adultery with one of his
wifes friends.
By pointing out these potential weaknesses in the
States case, we do not mean to suggest that we think T.F. was
lying or that Morgan should be found not guilty. Our task is not
to determine the credibility of the witnesses at Morgans trial,
or to determine Morgans probable guilt or innocence. Instead,
our duty is to determine whether, consistent with the demands of
due process, Judge Weeks could properly re-determine Morgans
guilt or innocence without personally hearing the witnesses
presented by the State. This, in turn, hinges on the question of
whether the demeanor of those witnesses was a trivial factor in
assessing their credibility so that Judge Weeks could resolve
the disputed issues of fact without seeing those witnesses.
Given the facts of Morgans case, we conclude that T.F.s
credibility could not be determined from the cold record. A
proper re-assessment of Morgans guilt or innocence required the
trier of fact to personally hear the testimony that was important
to the assessment of T.F.s credibility that is, the testimony of
T.F. and the various witnesses who spoke to her or interviewed
her following her report of the sexual assault.
Why we conclude that Morgan is entitled to a new trial
Conceivably, Criminal Rule 25(b) may
authorize Judge Weeks to selectively re-summon and hear
the testimony of the pertinent witnesses. Although
Rule 25(b) does not expressly authorize this procedure
cf. New Jersey Court Rule 1:12-3(c), which authorizes a
substituted judge to direct the recall of any witness
some states have interpreted their judge-substitution
rules to implicitly authorize a successor judge to
recall selected witnesses when this is necessary to a
fair decision. See Stevens v. Hartford Accident and
Indemnity Co., 615 A.2d 507, 511-12 (Conn. App. 1992);
In re Marriage of Seyler, 559 N.W.2d 7, 9 (Iowa 1997).
But in Morgans case, the testimony of the
witnesses in question constitutes the greater portion
of Morgans trial. In this circumstance, we conclude
that Morgan should receive a new trial.
The judgement of the superior court is
REVERSED. Morgan is entitled to a new trial.
COATS, Chief Judge, concurring.
Morgans conviction for sexual assault in the
second degree rested on the testimony of T.F. In his
first appeal, Morgan argued that the trial judge,
Superior Court Judge Thomas Jahnke, improperly
excluded the testimony of witnesses who would have
testified that T.F. had made prior false accusations of
sexual assault against other men. At his trial, Morgan
questioned T.F. about whether she had falsely accused a
man, Chris Bevis, of rape. T.F. denied that she had
ever accused Bevis of rape and stated that anyone who
had said she had made such an accusation would be
lying.
In Morgans first appeal, we concluded that
Judge Jahnke had applied the wrong standard in
excluding the testimony of witnesses who, according to
the offer of proof, would have testified that T.F. had
made prior false accusations of sexual assault against
other men.1 We remanded the case to the superior court
to determine whether the evidence of T.F.s alleged
false accusations should have been admitted at Morgans
trial. We directed the court to hear testimony from
Morgans proposed witnesses and to determine if Morgan
proved by a preponderance of the evidence that T.F. had
knowingly made false accusations of sexual assault. In
the event that Morgan presented evidence which met this
standard, we directed the court to re-determine Morgans
guilt in light of this evidence.2 Otherwise, the court
was to affirm Morgans conviction.3
But our decision remanding the case was
predicated on the fact that Morgan had waived a jury
trial and elected to have his case tried solely before
Judge Jahnke. That is, our remand was based upon the
assumption that Judge Jahnke could hear the evidence
that T.F. had made prior false accusations and
determine whether that evidence was admissible under
the proper legal standard. If he determined that the
evidence was admissible, Judge Jahnke could redetermine
Morgans guilt, considering this additional evidence.
But Judge Jahnke retired and was unavailable
to rehear the case. The case was therefore assigned to
Superior Court Judge Larry R. Weeks. Following an
evidentiary hearing, at which Morgans witnesses
testified, Judge Weeks concluded that Morgan had proven
by a preponderance of the evidence that T.F. had
falsely accused Chris Bevis of rape and that Morgan
should have been allowed to present this testimony at
his trial. Judge Weeks then reviewed the record of the
evidence presented at Morgans trial and the evidence
which he had observed in the evidentiary hearing and
concluded that the evidence established Morgans guilt
beyond a reasonable doubt.
The procedure that Judge Weeks adopted
conformed to our original decision remanding this case
to the superior court. But our original decision was
based on the assumption that Judge Jahnke, the sole
finder of fact in Morgans trial, would be able to
reevaluate the evidence. Had Morgan been convicted in
a jury trial, we would have followed a different
procedure. We would have remanded the case to the
superior court to determine whether Morgans evidence
that T.F. had falsely accused Bevis of rape was
admissible under the proper legal standard. If the
superior court determined that the evidence was
admissible, we would have directed the superior court
to determine, in light of the evidence presented at
trial, whether the exclusion of this evidence might
have changed the verdict in Morgans case. We would
have then directed the superior court to grant Morgan a
new trial if the evidence might have changed the
verdict.
It is clear that excluding the evidence that
T.F. had falsely accused Chris Bevis of rape could not
be harmless error. If a jury believed this testimony,
it would mean that T.F. had not only made a prior false
accusation but had also lied at Morgans trial about
making that false accusation. And T.F.s testimony was
critical to convicting Morgan. Therefore, if Morgan
had been convicted in a jury trial, his conviction
would have been reversed.
Because Judge Jahnke was not available to
reevaluate Morgans case, it seems to me that we must
evaluate this case in a similar manner to the procedure
which we would use in reviewing a jury trial. Judge
Jahnke erred in excluding the evidence that T.F. had
falsely accused Bevis of rape. There is no basis for
us to conclude that the exclusion of this evidence did
not affect the outcome of Morgans trial. We must
accordingly reverse Morgans conviction.
_______________________________
1 Morgan I, 54 P.3d at 339-340.
2 James v. State, 84 P.3d 404, 406-07 (Alaska 2004);
Salinas v. State, 373 P.2d 512, 514 (Alaska 1962);
Gonzales v. State, 691 P.2d 285, 286-87 (Alaska App.
1984).
3 Freeman, 227 F. at 759.
4 See Federal Criminal Rule 25(a); People v. Espinoza, 838
P.2d 204, 216-18 (Cal. 1992); Eaton v. State, (unpublished),
2000 WL 628330 at *2 (Del. 2000); McIntyre v. State, 463
S.E.2d 476, 479 (Ga. 1995), federal habeas corpus denied,
McIntyre v. Williams, 216 F.3d 1254 (11th Cir. 2000); State
v. Misner, 410 N.W.2d 216, 218-19 (Iowa 1987); Commonwealth
v. Carter, 669 N.E.2d 203, 206-08 (Mass. 1996); People v.
Thompson, 687 N.E.2d 1304, 1306-08 (N.Y. 1997); State v.
McKinley, 455 N.E.2d 503, 506-07 (Ohio App. 1982); People v.
Ram¡rez, 822 S.W.2d 240, 246 (Tex. App. 1991); Medina v.
State, 743 S.W.2d 950, 960 (Tex. App. 1988).
5 Bryan A. Garner (editor in chief), Blacks Law Dictionary
(8th ed. 2004), p. 1592.
6 See, e.g., Lee v. Anchorage, 70 P.3d 1110, 1113 (Alaska App.
2003); Morgan v. State, 54 P.3d 332, 341 (Alaska App. 2002)
(Coats, C.J., concurring); Wasserman v. Bartholomew, 38 P.3d
1162, 1166 (Alaska 2002); Grinols v. State, 10 P.3d 600, 623
(Alaska App. 2000); Taylor v. State, 977 P.2d 123, 126
(Alaska App. 1999); State v. Case, 928 P.2d 1239, 1242
(Alaska App. 1996) (Mannheimer, J., concurring); Adrian v.
Adrian, 838 P.2d 808, 810 n. 3 (Alaska 1992); Michael v.
State, 767 P.2d 193, 202 (Alaska App. 1988); Jones v.
Anchorage, 754 P.2d 275, 277 (Alaska App. 1988); Alexander
v. State, 712 P.2d 416, 420 (Alaska App. 1986); Dolchok v.
State, 639 P.2d 277, 284 (Alaska 1982).
7 Garner, Blacks Law Dictionary (8th ed. 2004), p. 1592.
8 Noscitur a sociis literally, it is known by its associates
is the principle of statutory construction which directs a
court to construe an unclear or ambiguous word or phrase in
light of the words immediately surrounding it. See Garner,
Blacks Law Dictionary (8th ed. 2004), p. 1087.
9 Alexander, 611 P.2d at 474.
10Snyder, 43 P.3d at 158. See AS 28.15.165.
11Snyder, 43 P.3d at 158-59.
12Id. at 159.
13Id.
14Id.
15Id. at 159-160.
16Id. at 160, 161.
17Id. at 160.
1 Morgan v. State, 54 P.3d 332, 337, 340 (Alaska App. 2002).
2 Id. at 340.
3 Id.
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