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Itta v. State (9/5/2008) ap-2182

Itta v. State (9/5/2008) ap-2182

     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

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) Court of Appeals No. A-9873
Appellant, ) Trial Court No. 4FA-05-3200 CR
v. )
) O P I N I O N
Appellee. ) No. 2182 September 5, 2008
          Appeal  from the Superior Court, Fourth  Judi
          cial   District,  Fairbanks,  Mark  I.  Wood,

          Appearances:   George J.  Dozier  Jr.,  Eagle
          River,   for   the  Appellant.   Kenneth   M.
          Rosenstein,   Assistant   Attorney   General,
          Office  of Special Prosecutions and  Appeals,
          Anchorage,  and  Talis J.  Colberg,  Attorney
          General, Juneau, for the Appellee.
          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          COATS,  Chief Judge.

          Emanuel  L. Itta was convicted of assault in the  first
degree1  for  participating in an assault that seriously  injured
Ulak Hope Jr.  Itta raises two issues on appeal.
          Ittas  first issue arises from the fact that, at trial,
the  State asked permission to introduce evidence of Ittas  other
assaultive  conduct  under Alaska Evidence Rule  404(b)(1).   The
trial  judge, Superior Court Judge Mark I. Wood, ruled (based  on
          the content of the States case-in-chief) that the probative value
of  the  proposed  evidence was outweighed by its  potential  for
unfair  prejudice,  and thus it would not be admitted.   However,
Judge  Wood stated that if the defense presented a case, he might
have to re-evaluate the admissibility of this evidence, depending
on the content of the defense case.
          Ittas attorney pressed Judge Wood for a firm ruling  on
whether,  if Itta testified that he acted in defense  of  others,
the  judge would allow the State to introduce evidence  of  Ittas
prior assaultive conduct.  Judge Wood repeated that, from what he
knew so far, he would [probably] preclude that evidence.  But  he
told  the  defense attorney, [U]ntil I hear what your  client  is
going to say, I cant be sure.
          Itta  did not present a defense, so Judge Wood made  no
further ruling on the admissibility of the other-crimes evidence.
          In this appeal, Itta argues that Judge Wood was obliged
to give him a definitive answer on the admissibility of the other-
crimes evidence before Itta decided whether to exercise his right
to  testify.  Itta asserts that Judge Wood infringed his right to
testify  when  the judge declared that his final answer  on  this
issue  would  depend  on the content of the  defense  case   thus
forcing  Itta  to  make his decision whether to  testify  without
knowing the final resolution of this evidence question.
          The   State,  relying  on  the  Alaska  Supreme  Courts
decision in State v. Wickham2 and this courts decision in Sam  v.
State,3 argues that Itta forfeited his right to pursue this issue
on  appeal when he decided not to testify.  But Wickham  and  Sam
are not directly on point.
          Both Wickham and Sam involved instances where the trial
judge  issued  a firm ruling that the State would be  allowed  to
introduce certain impeachment evidence if the defendant took  the
stand.   Wickham  and  Sam hold that, if a  defendant  wishes  to
appeal this type of ruling (i.e., an advance ruling regarding the
scope  of  impeachment), the defendant must take  the  stand  and
suffer the impeachment.4
          But  in  Ittas  case, Judge Wood never ruled  that  the
States   other-crimes  evidence  was  admissible  or   would   be
admissible  if  Itta  took the stand.  Although  Itta  argues  on
appeal  that  Judge Wood should have ruled that the  other-crimes
evidence would be inadmissible regardless of the content of Ittas
testimony,  Ittas  basic claim in this  appeal  is  that  he  was
entitled  to a firm answer on the admissibility of this  evidence
regardless of whether that answer was yes or no  before  he  made
his decision whether to testify.
          This  claim   the assertion that Itta was  entitled  to
demand that Judge Wood issue a final ruling on this matter before
Itta  made  his  decision whether to testify   is  preserved  for
appeal.   There  is nothing speculative about this  claim:   Itta
contends that the error was Judge Woods refusal to make  a  final
ruling.  He argues that a defendant is entitled to know a  judges
final  decision  on  the  admissibility of  evidence  before  the
defendant makes the decision whether to testify.
          We  therefore conclude that Itta is entitled to  pursue
this  claim  on appeal.  However, we reject Ittas  claim  on  its
          As this court has repeatedly explained in cases dealing
with  Evidence Rule 404(b)(1), once the State has identified  one
or  more  valid  non-propensity purposes for the proposed  other-
crimes  evidence, the question then becomes one of balancing  the
probative  value of the evidence versus its potential for  unfair
prejudice  under  Evidence Rule 403.5  And  when  a  trial  judge
assesses  the  probative value of the other-crimes evidence,  the
judge can properly consider the importance of the evidence toward
impeachment of a witnesss testimony  including the defendants own
testimony, if the defendant chooses to testify.6
          As the Alaska Supreme Court explained forty years ago,
          The  general rule excludes evidence of  prior
          crimes  in  a  criminal  trial  because   the
          [admission]   of  such  evidence   tends   to
          [produce]   confusion   of   issues,   unfair
          surprise, and undue prejudice.  But there are
          exceptions to the rule.  Such evidence may be
          admissible when it is particularly  probative
          in  showing such things as intent, an element
          in  the  crime, malice, motive, a  system  of
          criminal  activity, ... or when the defendant
          has  testified and the state seeks to impeach
          his credibility.[7]
          Thus,  even though Judge Wood had ruled (based  on  the
content  of  the  States case-in-chief) that the States  proposed
other-crimes evidence should not be admitted, it was  proper  for
Judge  Wood  to  warn Itta that his ruling on  this  issue  might
change, depending on the content of Ittas testimony  because  the
content  of  Ittas testimony might alter the balance between  the
probative  value  of  the evidence and its potential  for  unfair
          Indeed, the rule that Itta proposes would create  grave
problems.   If  trial judges were required to  give  a  defendant
definitive  rulings  on  these  evidentiary  matters  before  the
defendant made the decision whether to take the stand, and if the
defendants  testimony  truly  altered  the  balance  between  the
probative  value  of  the evidence and its potential  for  unfair
prejudice,  then  either the trial judge would  be  powerless  to
amend  the earlier ruling or the defendant could plausibly  claim
that he was improperly enticed to take the stand.
          For  these  reasons, we reject Ittas  argument  that  a
trial judge must provide a definite and unalterable answer to the
admissibility of other-crimes evidence before a defendant chooses
whether to take the stand.  Instead, we conclude that Judge  Wood
acted  properly and forthrightly when he informed  Itta  and  the
defense  attorney that his decision concerning the  admissibility
of  this evidence might change, depending on the content of Ittas
          Ittas  remaining  claim  is that  the  State  presented
insufficient  corroboration  of  the  testimony  offered  by  his
          The  major  evidence against Itta was the testimony  of
the  other participants in the assault.  Alaska Statute 12.45.020
declares  that  a  defendant may not be convicted  based  on  the
          testimony of an accomplice unless that testimony is corroborated
by  other  evidence that tends to connect the defendant with  the
commission of the crime.
          In  Oxenberg  v.  State,8   the  Alaska  Supreme  Court
interpreted  this  statute  to require  sufficient  corroborative
evidence  to induce in the minds of the jurors a rational  belief
that the accomplice was speaking the truth when he implicated the
defendant in the criminal event.9
          At  Ittas  trial, Fairbanks Police Officer David  Elzey
testified  that he interviewed Itta following the assault.   Itta
told  Officer Elzey that he was present when Hope was  assaulted,
and  he  ultimately  admitted participating  in  the  assault  by
hitting  Hope  in the chest.  Trevor Britain also testified  that
Itta admitted his participation in the assault.  In addition, the
State  presented evidence that the bottoms of Ittas shoes matched
footprints  that  the police found at the scene of  the  assault.
This  evidence  was  sufficient to  corroborate  the  accomplices
testimony that Itta was a participant in the assault.
          Itta  further contends that this corroborating evidence
was  insufficient to show that he committed assault in the  first
degree  (as opposed to a lesser degree of assault).  Itta  argues
that,  apart  from  the accomplice testimony,  the  evidence  was
insufficient to show that he was criminally responsible  for  the
serious injuries that Hope suffered to his head and face.  But as
we  explained  in  Brown v. State,10  [t]here is  no  requirement
that every element of an offense testified to by an accomplice be
independently  corroborated  by  other  evidence.11   Rather,  AS
12.45.020   requires  only  independent  corroboration   of   the
defendants connect[ion] ... with the commission of the crime.
          For  these reasons, the judgment of the superior  court

     1 AS 11.41.200(a).

     2 796 P.2d 1354 (Alaska 1990).

     3 842 P.2d 596 (Alaska App. 1992).

     4 Wickham, 796 P.2d at 1358; Sam, 842 P.2d at 599.

5  See,  e.g.,  Kenison  v.  State, 107  P.3d  335,  344  (Alaska
App. 2005); Morrow v. State, 80 P.3d 262, 268 (Alaska App. 2003);
Beaudoin v. State, 57 P.3d 703, 707-08 (Alaska App. 2002).

     6  Gargan v. State, 805 P.2d 998, 1003-04 (Alaska App. 1991)
(other-crimes evidence relevant to impeach a defendants testimony
as  to  a material issue).  See also McIntyre v. State, 934  P.2d
770,  773 (Alaska App. 1997); Jansen v. State, 764 P.2d 308, 310-
11  (Alaska  App.  1988); Moor v. State,  709  P.2d  498,  506-07
(Alaska App. 1985).

     7  Mead v. State, 445 P.2d 229, 234 (Alaska 1968) (footnotes

     8 362 P.2d 893 (Alaska 1961).

     9 Id. at 897.

     10   693 P.2d 324 (Alaska App. 1984).

     11   Id. at 329.

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