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Proctor v. State (7/23/2010) ap-2270

Proctor v. State (7/23/2010) ap-2270

     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

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878


) Court of Appeals No. A-10112
Appellant, ) Trial Court No. 3AN-05-11802 CR
v. )
) O P I N I O N
Appellee. )
) No. 2270 July 23, 2010
Appeal    from    the
          Superior  Court,  Third  Judicial  District,
          Anchorage, John Suddock, Judge.

          Appearances:  Beth G. L. Trimmer,  Assistant
          Public  Advocate, and Rachel Levitt,  Public
          Advocate,   Anchorage,  for  the  Appellant.
          Terisia  K.  Chleborad,  Assistant  Attorney
          General, Office of Special Prosecutions  and
          Appeals, Anchorage, and Richard A. Svobodny,
          Acting  Attorney  General, Juneau,  for  the

          Before:   Coats, Chief Judge, and Mannheimer
          and Bolger, Judges.

          BOLGER, Judge.

          Bradley  Proctor was convicted of two counts of assault
after  a jury trial in which he claimed self-defense.  On appeal,
Proctor  argues  that the trial judge should  not  have  admitted
testimony  about  his  reputation for  violence  in  prison.   We
conclude  the  judge could reasonably conclude  that  the  prison
population  was  a group with whom Proctor habitually  associated
and  that the admission of this evidence did not violate Proctors
right to cross-examination.
          Proctor  also contends that the judge should  not  have
allowed one alleged victim to testify using diagrams she prepared
after  she  was  present  for the other  victims  testimony.   We
conclude that the judge was not required to exclude the testimony
of the alleged victim or limit her use of these diagrams.
          Sharon Lamar and Jennifer Putnam lived together  in  an
apartment  near  Bradley  Proctor.   Both  women  are  deaf   and
communicate using sign language.
          On  December 11, 2005, Proctor and Putnam went  to  two
bars,  then  returned  to  Proctors apartment,  where  they  used
cocaine.  Lamar testified that she went to Proctors apartment  to
urge  Putnam  to come home.  Proctor convinced Lamar to  purchase
some  cocaine  for  him.  Lamar returned with  the  cocaine,  but
Proctor  became  angry, saying that it tasted like  soap.   Lamar
tried  to calm Proctor down, but he hit her in the mouth.  Putnam
then  tried  to  separate the two, and Proctor  broke  her  nose.
Proctor  told  the women to clean up the blood, but Putnams  nose
continued to bleed.
          Lamar testified that Proctor locked the front door  and
moved  a chair against the door to keep them from leaving.   When
Lamar  tried to call for help, Proctor started kicking  her  face
and  body.  At one point, Proctor held both women in choke  holds
until Putnam passed out.
          In  his  defense, Proctor gave a different  version  of
the  events.   He testified that Lamar came to the apartment  and
tried  to  get  Putnam to come home.  Lamar became so  loud  that
Proctor  asked her to leave.  But Lamar returned, kicked  in  the
door,  and  then  grabbed  a steak knife  and  attacked  Proctor.
Proctor  testified  that while he was trying to  defend  himself,
Putnam  began  hitting  him with a small  coffee  table,  and  he
backhanded her in the nose.
          Troy  Hall,  Proctors neighbor, testified that  he  was
awakened by loud banging sounds.  Hall recognized Proctors  voice
repeatedly  yelling Do you want to die? Hall also  heard  another
voice,  muffled but screaming No, no, please stop,  no,  no,  no.
Hall  banged  on  Proctors  door and  Proctor  came  out  yelling
incoherently.  While Hall was calling the police, one woman  came
crawling out of Proctors apartment.  Proctor stomped on her  back
and  began  slamming her head into the entryway  floor.   Then  a
second woman came out of Proctors apartment and fell down.
          When  the  police  arrived, the women were  bloody  and
laying face down in the snow.  Lamar and Putnam were taken to the
hospital and Proctor was taken into custody.
          Proctors  charges included first-, second-, and  third-
degree assault of Lamar,1 and first- and second-degree assault of
Putnam.2   The  jury  found Proctor not guilty  of  the  assaults
against  Putnam  and  not guilty of the first-degree  assault  of
          Lamar, but they convicted Proctor of second- and third-degree
assaults against Lamar.
          At   sentencing,  Superior  Court  Judge  John  Suddock
rejected  Proctors proposed mitigating factor, and sentenced  him
to 10 years imprisonment.  Proctor now appeals.

     The  Trial  Court Did Not Abuse its Discretion  by  Allowing
Two Correctional
     Officers to Testify About Proctors Reputation.
          Midway  through  the presentation of the  States  case,
Proctors  attorney advised the court that the State  intended  to
call  correctional officers to testify about Proctors  propensity
for   violence.   Defense  counsel  objected  to  this   proposed
testimony,  which  would be based on four or  five  incidents  in
which  Proctor  had been punished for assault or fighting  during
his incarceration prior to trial.  The attorney also requested  a
short  continuance so that he could prepare his cross-examination
of the officers.  In response, Judge Suddock ordered the State to
make  the  officers  available for  an  interview  with  Proctors
          Proctor objected again before the officers were  called
to the stand on the basis that the officers did not have a proper
knowledge of Proctors reputation when he was out of custody.   He
argued  that prison is a unique atmosphere and that the  officers
knowledge of Proctors conduct in custody would not be an accurate
foundation for testimony about his reputation.
          The  judge  stated  that he understood  Proctor  to  be
arguing  that  opinion testimony by a prison  official  is  never
admissible  because  people behave differently  in  prison.   The
judge  overruled  this objection, explaining that  Proctor  could
explore  the   witnesses limited knowledge on  cross-examination.
Proctor  argued  that cross-examination would necessarily  reveal
the  prejudicial information that he had been incarcerated  prior
to  his trial.  But he did not raise any other objections to  the
foundation for the officers testimony.
          The  testimony was very brief.  Each officer  testified
that  he  knew  Proctor (without specifying the  basis  for  that
acquaintance), and that Proctor had a tendency to be violent.
          On  appeal, Proctor again argues that the testimony  of
the  correctional  officers  should not  have  been  admitted  as
evidence  of his reputation.  We review the trial courts decision
to admit this evidence for an abuse of discretion.3
          Because  Proctor raised the issue of self-defense,  the
State  was  allowed  to introduce evidence of his  character  for
violence under Alaska Evidence Rule 404(a)(2):  [E]vidence  of  a
relevant  character  trait of an accused is admissible  to  rebut
evidence that the victim was the first aggressor.  Thus, although
character  evidence is generally inadmissible, such evidence  was
admissible  in this case to rebut Proctors testimony  that  Lamar
was the first aggressor.
          Evidence Rule 405 provides:
          In  all cases in which evidence of character
          or  a  trait  of character of  a  person  is
          admissible,  proof may be made by  testimony
          as  to  reputation in any community or group
          in    which    the   individual   habitually
          associated or by testimony in the form of an

Accordingly,  the  State was entitled to  introduce  evidence  of
Proctors  reputation  in  any community  or  group  in  which  he
habitually associated to rebut Proctors claim that Lamar was  the
first aggressor.
          Evidence  Rule 405 allows a broader scope of reputation
evidence than the corresponding federal rule.  The Commentary  to
Rule 405 explains:
          The  Federal  Rule,  on which  this  Rule  is
          modeled,  does  not  indicate  the  scope  of
          reputation evidence.  This rule fills  a  gap
          left  in  the Federal Rule by clearly stating
          that  reputation evidence is not confined  to
          the  community in which the defendant  lives;
          reputation where the defendant works, goes to
          school  or in a group with whom the defendant
          habitually associates will suffice.[4]
Accordingly,  even assuming that a correctional  facility  cannot
properly  be  considered a community, the  correctional  officers
testimony  would  still  be admissible  if  related  to  Proctors
reputation among a group with whom he habitually associated.
          Cases   from   other  jurisdictions   reach   differing
conclusions  on whether a correctional facility is an appropriate
community  for the purpose of reputation evidence.  In 1876,  the
New  York Court of Appeals held that it was permissible to  allow
witnesses  to  testify  about  a  decedents  good  reputation  in
prison.5  The court explained:
          It  matters not that the witnesses  had  only
          known  the deceased in the prison; ... a  man
          can have a general character there as well as
          elsewhere;  and it is just as  competent  for
          witnesses  to  speak of that character  there
          where they have become acquainted with it, as
          at any other place.[6]
A  hundred  years  later,  the court  continued  to  follow  this
reasoning,  stating  that [a] reputation  may  grow  wherever  an
individuals associations are of such quantity and quality  as  to
permit  him to be personally observed by a sufficient  number  of
individuals to give reasonable assurance of reliability.7
          The  Oregon  Court  of  Appeals also  followed  similar
reasoning, noting:
          Under  the  current trend  of  the  law,  the
          question  is not whether the county jail  was
          the  defendants  community in the  restricted
          sense  of his place of residence, but  rather
          whether defendants reputation was general and
          established  in  a substantial  community  of
          people  so  that general reputation  evidence
          obtained  from  that  source  would,  in  the
          judgment   of   the  trial   court,   provide
          trustworthy  evidence of  defendants  general
          reputation for truth and veracity.[8]
The  court concluded that the fact that the community was located
in  a  county  jail  does not render the evidence  of  defendants
reputation there inadmissible as a matter of law.9
          The  Texas  Court  of  Appeals has  also  held  that  a
correctional  center  could  be recognized  as  a  community  for
purposes  of  reputation evidence.10  But the supreme  courts  of
Florida   and   Washington  have  determined  that   correctional
facilities   are   not  sufficiently  neutral   or   sufficiently
generalized to be recognized as communities.11  And the  Oklahoma
Court  of  Criminal Appeals concluded that the  population  of  a
county jail was too transient to be recognized as a community.12
          In  summary,  some courts have allowed evidence  of  an
individuals  reputation  in  prison,  even  under  the   narrower
requirement that the evidence must refer to the reputation  in  a
particular  community, and some courts have  not.   However,  the
scope  of  Alaska  Evidence Rule 405 is broader  than  the  rules
applied in those cases because the Alaska rule allows evidence of
a persons reputation not only within a community, but also within
any  group  with  whom  the defendant habitually  associates.   A
reasonable  judge  could,  therefore,  conclude  that  a   prison
satisfies the broader Alaska rule:  a prison population could  be
a group with whom a prisoner  habitually associates.  We conclude
that  the  trial judge in this case did not abuse his  discretion
when  he  allowed  the prosecution to present character  evidence
based on Proctors reputation in prison.

     Proctors   Right  to  Confrontation  Was  Not  Violated   by
Allowing the Correctional Officers to Testify.
          The  judge  explained  that Proctor  could  use  cross-
examination  to  show  that the officers  knowledge  of  Proctors
reputation  was limited to his reputation in prison. Proctor  now
argues  that  he  was denied the right to confront  the  officers
because he could not cross-examine them about their knowledge  of
his  reputation  without  revealing  to  the  jury  that  he  was
incarcerated.   Proctor raises this confrontation issue  for  the
first  time  in  this appeal, so we review the  issue  for  plain
          The  federal  and  state  constitutions  guarantee  the
defendant  in a criminal case the right to confront the witnesses
against  him.14   The right to confrontation is violated  when  a
trial court unduly restricts a defendants cross-examination of  a
          Proctor  argues  that  his right to  confrontation  was
violated because he was unable to meaningfully cross-examine  the
correctional officers without revealing to the jury that  he  was
incarcerated  before  trial.  He relies on two  Alaska  cases  to
support his argument.  In the first case, the trial court ordered
that  a defendant could not question another suspects wife  about
her  husbands statement admitting that the husband committed  the
murder  (based  on the marital communications privilege).16   The
supreme  court  held  that when conflict  is  found  between  the
          constitutional right of confrontation and the exercise of a
privilege  based on public policy, the constitutional right  must
            In  the  second  case, the defendant was  accused  of
molesting a foster child.18  The trial court barred the defendant
from  suggesting that he told the victim that she would no longer
be  allowed to stay in his home because she had molested  another
child.19   This  court reversed the conviction,  explaining  that
this restriction on the cross-examination prevented the defendant
from  showing  that  the  victim had a motive  to  fabricate  her
          Both  of  these cases involved an actual  restraint  on
the  defendants  ability  to cross-examine  a  witness.   But  in
Proctors  case, there was no such restraint imposed by the  trial
court.   Proctor  was given the opportunity to cross-examine  the
officers,  and the extent to which he cross-examined them  was  a
tactical decision.  As the trial court explained:
          At  the  end  of the day, its not  the  State
          thats making the call about whether its  more
          advantageous than disadvantageous  to  cross-
          examine  on  the circumstances.   Thats  you.
          You  have the choice whether or not you think
          it advantages you on balance to go into that.
          I agree, its a difficult choice.  Its a trade-
          off  of values, but thats a dilemma that your
          client has put you into by his conduct.
          Because  his decision to forego a more thorough  cross-
examination  of  the  officers was a tactical  decision,  Proctor
cannot show that the trial court committed a plain error.
     Proctors  Due  Process Rights Were Not  Violated  by  Lamars
          Proctor  argues  that  his  due  process  rights   were
violated  when  Lamar was allowed to testify  with  diagrams  she
created  after  she  observed  Putnams  testimony.   When   Lamar
testified  at trial, she relied on diagrams she drew that  showed
the layout of Proctors apartment and chronologically depicted the
conduct  of Proctor, Putnam, and Lamar.  Defense counsel objected
to  the  diagrams on the basis that Lamar had created them  after
she was present for Putnams testimony.  The trial judge overruled
the objection and the drawings were admitted into evidence.
          The  Alaska  Constitution provides that  crime  victims
have  the  right  to  be  present at  all  criminal  or  juvenile
proceedings where the accused has the right to be present.21  But
Proctor  argues  that  due  process may  be  implicated  when  an
unsequestered  witness tailors her testimony to  corroborate  the
testimony  of  a previous witness.  Proctor cites two  cases  for
this proposition.
          In  the  first  case,  the  Ninth  Circuit  noted  that
[n]either this court nor the Supreme Court has ever held that the
failure  to  exclude  witnesses can violate due  process.22   The
court  concluded that it was not required to decide  whether  the
failure  to  exclude  witnesses may be a  due  process  violation
because  there  was no evidence that the decision  had  adversely
affected  the  defendants trial.23  In  other  words,  the  Ninth
          Circuit expressly stated that it was not resolving the question
that Proctor raises.
          In   the  second  case  that  Proctor  relies  on,  the
petitioners  argued  that  the tax  court  erred  in  failing  to
sequester witnesses pursuant to Federal Evidence Rule 615,  which
requires  the  court  to  exclude witnesses  when  they  are  not
testifying.24   The Sixth Circuit concluded that the  petitioners
had  failed  to  show  that the judges error  harmed  their  case
because  there  was no evidence that the witnesses  had  tailored
their  testimony other than the fact that the witnesses had heard
the  previous  testimony.25   This case  does  not  suggest  that
failure  to  exclude  a witness implicates a partys  due  process
          This  court  has  previously recognized  that  the  Due
Process  Clauses  of the state and federal constitutions  do  not
grant  a  general right to exclude witnesses from  the  courtroom
during the testimony of other witnesses.26  Moreover, Article  I,
Section  24  of  the Alaska Constitution expressly  grants  crime
victims the right to ... be allowed to be present at all criminal
or  juvenile  proceedings where the accused has the right  to  be
present.   We accordingly hold that a trial judge may  allow  the
victim of an alleged crime to remain in the courtroom while other
witnesses  are  testifying (even though the victim  has  not  yet
testified),  as long as the defendant is allowed to cross-examine
the  victim  regarding  any potential influence  on  the  victims
          In   Proctors  case,  Judge  Suddock  could  reasonably
conclude that Lamar should be allowed to testify and to offer the
diagrams  that she prepared, even though she was present  in  the
courtroom when Putnam testified.

     Proctor  Did  Not Establish That He Committed  This  Offense
Under Duress.
          Proctor  proposed a mitigating factor, contending  that
he  committed the offense under some degree of duress,  coercion,
threat,  or  compulsion  insufficient to  constitute  a  complete
defense,   but  that  significantly  affected  [his]   conduct.27
Proctor   noted  that  he  was convicted  for  the  conduct  that
occurred  while  Lamar  was attempting to  leave  his  apartment.
Proctors  theory  was  that he continued to  kick  Lamar  in  the
hallway  because he believed she was trying to access a knife  in
her belt.  Proctor pointed to the fact that a knife was recovered
from Lamar as she was put into an ambulance.
          Judge  Suddock rejected this argument, explaining  that
the  mitigator  did not apply because Proctor had  not  shown  by
clear  and convincing evidence that this [case] involved  a  self
defense  component.   Explaining his  sentencing  rationale,  the
judge stated:
          I  find  no evidence, and I do not  believe,
          that  this was a self defense case.  I think
          this  was  a case brought about by blinding,
          impetuous  rage on the part of  Mr.  Proctor
          over  some real or imagined provocation that
          he  perceived at that time, and  he  decided
          that  it was an appropriate time to  give  a
          couple of smaller and relatively defenseless
          women  a very thorough beating over a period
          of time.

          Proctor  argues that the judges comment that  the  case
[was]  brought about by blinding, impetuous rage on the  part  of
Mr.  Proctor over some real or imagined provocation was a finding
that  Proctor  was provoked.  Proctor argues that the  mitigating
factor  was  established by this comment because the  legislature
intended  that AS 12.55.155 (d)(3) be read broadly.28  We  review
the   superior  courts  factual  findings  for  clear  error  and
independently   assess   whether  these  facts   establish   this
mitigating factor.29
          In  order  for a defendant to establish the  mitigating
factor that he acted under compulsion, the compulsion must be  of
a  sufficiently extraordinary nature that it approaches  being  a
defense  to the crime.30  But when we read Judge Suddocks comment
in  context, it is apparent that he was explaining that this  was
not  a self-defense case and that there was no justification  for
the  attack.  Judge Suddocks findings are not clearly  erroneous,
and  we  agree with his conclusion that Proctor did not establish
that he committed this offense under duress or coercion.

          We AFFIRM the superior courts judgment and sentence.
     1   AS   11.41.200(a)(1)(3);  AS  11.41.210(a)(2);  and   AS

     2 AS 11.41.200(a)(1)(3); AS 11.41.210(a)(2).

3 See Hawley v. State, 614 P.2d 1349, 1361 (Alaska 1980).
4   Commentary   to  Alaska  Evid.  R.  405,  p.  508   (2009-10)
(internal citations omitted).

     5 Thomas v. People, 67 N.Y. 218 (N.Y. 1876).

     6 Id. at 224.

     7  People v. Bouton, 405 N.E.2d 699, 704 (N.Y. 1980) (citing
5 Wigmore on Evidence,  1616 (Chadbourn rev., 1974)).
8 State v. Miller, 628 P.2d 444, 448 (Or. App. 1981).

     9 Id.

     10    Palmer v. State, 716 S.W.2d 174, 176 (Tex. Crim.  App.

     11    Parker  v. State, 458 So. 2d 750, 753-54 (Fla.  1984);
State v. Lord, 822 P.2d 177 (Wash. 1991) (citing Parker, 458  So.
2d at 753-54).

     12    Ferguson  v. State, 675 P.2d 1023, 1027  (Okla.  Crim.
App. 1984).
     13    See  Clark  v. State, 953 P.2d 159, 165  (Alaska  App.

     14    See  Davis v. Alaska, 415 U.S. 308, 315-16, 94 S.  Ct.
1105,  1110, 39 L. Ed. 2d 347 (1974); Stumpf v. State,  749  P.2d
880, 900-01 (Alaska App. 1988).

     15   See Davis, 415 U.S. at 315-19, 94 S. Ct. at 1110-12.
     16   Salazar v. State, 559 P.2d 66, 76-78 (Alaska 1976).

17   Id. at 79.

     18    Daniels  v.  State, 767 P.2d 1163, 1164  (Alaska  App.

     19   Id. at 1165.

     20   Id. at 1166-67.
     21    Alaska Const. art 1,  24.  Alaska Evidence Rule 615(4)
provides  a  corresponding exception to the rule on exclusion  of
witnesses for the victim of the alleged crime ... during criminal
... proceedings when the accused has the right to be present.

     22    Larson  v.  Palmateer, 515 F.3d 1057, 1065  (9th  Cir.
     23   Id.

24    William  L.  Comer Family Equity Pure  Trust  v.  Commr  of
Internal Revenue, 958 F.2d 136, 140 (6th Cir. 1992).

     25   Id. at 141.

     26    Landon  v. State, Memorandum Opinion and Judgment  No.
3975  (Alaska  App., Feb. 3, 1999), 1999 WL 46543,  *2  (internal
citations omitted).
     27   AS 12.55.155(d)(3).
     28    See  Bell  v. State, 658 P.2d 787, 791  (Alaska  1983)
(Evidence the defendant in good faith subjectively believed facts
which  if  true  would  have  established  one  of  the  defenses
justifying  his  conduct under the revised code ...  may  warrant
mitigation of a presumptive sentence.).

     29   See Michael v. State, 115 P.3d 517, 519 (Alaska 2005).

     30   Bynum v. State, 708 P.2d 1293, 1294 (Alaska App. 1985).
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