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Howard v. State (9/24/2010) ap-2277

Howard v. State (9/24/2010) ap-2277

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                                                            Court of Appeals No. A-10312 
                                Appellant,                  Trial Court No. 1CR-08-055 Cr 

                                                                    O   P  I  N  I  O  N 
                                                          No. 2277    -   September 24, 2010 

                Appeal from the District Court, First Judicial District, Craig, 
                David V. George, Judge. 

                Appearances:       Serena   Green   and   Sarah  T.   White,   Assistant 
                Public    Defenders,    and   Quinlan    Steiner,   Public   Defender, 
                Anchorage, for the Appellant. Ann B. Black, Assistant Attorney 
                General,     Office    of   Special    Prosecutions     and   Appeals, 
                Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, 
                for the Appellee. 

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

                MANNHEIMER, Judge. 

----------------------- Page 2-----------------------

                 Michael   D.   Howard   appeals   his   conviction   for   fourth-degree   assault. 1 

Howard was convicted of this crime based on evidence that he kicked another man in the 

face and ribs.  Howard's defense at trial was self-defense; he presented evidence that the 

purported victim of the assault actually initiated the violence. 

                 The issue presented in this appeal is whether the trial judge acted properly 

when   he   allowed   the   State   to   rebut   Howard's   claim   of   self-defense   by   presenting 

evidence of Howard's character for violence, through the testimony of a local police 


                 Under Alaska Evidence Rule 404(a)(2), when a defendant who is on trial 

for a crime of violence offers evidence that the purported victim of the crime was the first 

aggressor (thus raising the issue of self-defense), the prosecution may rebut the claim of 

self-defense   by   offering   evidence   of   "a   relevant   character   trait   of   [the]   accused"   - 

normally, the defendant's character for violence. 

                 When   the   prosecution   offers   evidence   of   the   defendant's   character   for 

violence under Evidence Rule 404(a)(2), the prosecution is not allowed to prove the 

defendant's character by introducing evidence of specific acts of violence committed by 

the defendant.   Rather, the prosecution is limited to either (1) testimony concerning the 

defendant's reputation within a relevant community or group in which the defendant 

habitually associates, or (2) testimony of witnesses who know the defendant and have 

an opinion concerning the defendant's character for violence. See Alaska Evidence Rule 


                 In   the   present   case,   the   State   presented   the   testimony   of   Craig   Police 

Sergeant Robert Ely.   Ely testified that he had known Howard for three years, since the 

    1   AS 11.41.230(a)(1), (3). 

                                                   - 2 -                                                 2277 

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

time he began working as a police officer in Klawock and Craig.         Ely stated that, in his 

opinion, Howard "can be a very aggressive individual". 

              On appeal, Howard contends that the State failed to establish a sufficient 

evidentiary foundation for Sergeant Ely's testimony - i.e., failed to present evidence 

that Ely knew enough about Howard to form an opinion concerning his character for 

violence.  However, in the district court, Howard did not object to Ely's testimony on 

this basis, nor did Howard ever ask the trial judge for permission to voir dire Ely on this 

issue.  This claim is therefore not preserved for appeal. 

              Nor do we find plain error.  When the parties were litigating the question 

of whether Ely would be allowed to testify, Howard's attorney told the district court that 

Ely had been the investigating officer in Howard's previous criminal cases.         This fact 

would seemingly support an inference that Ely was sufficiently acquainted with Howard 

to offer an opinion on Howard's character for aggressiveness or violence. 

              Howard additionally contends that it was unfair to allow Ely to offer an 

opinion of Howard's character for violence because, if Howard's attorney wished to 

cross-examine Ely concerning the basis for this opinion, the defense attorney would run 

the risk of eliciting testimony concerning Howard's past crimes of violence. 

              This may have been true, but it does not make Howard's situation unique. 

Any attorney (whether a prosecutor or defense attorney) would face the same dilemma 

when cross-examining any witness who (on direct examination) has offered an opinion 

concerning another person's character for violence.       If the witness is cross-examined 

about the basis for their opinion, the witness is likely to offer testimony about their prior 

dealings with the person in question - i.e., testimony concerning instances in which the 

person demonstrated aggression or violence.  This would be true regardless of whether 

those prior acts of violence led to criminal convictions (or even criminal prosecutions), 

                                            - 3 -                                        2277

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

and it would be true regardless of whether the character witness was a police officer or 

a civilian. 

                 Howard next argues that even if Ely's testimony was admissible under 

Evidence Rule 404(a)(2), the trial judge nevertheless failed to adequately investigate 

whether Ely's testimony should have been excluded under Evidence Rule 403 (i.e., on 

the ground that its potential for unfair prejudice outweighed its probative value).                    See 

Evidence Rule 404(a)(2)(ii).  But the record shows that the trial judge did engage in this 


                 When the prosecutor indicated (before trial) that Ely would be called to 

testify about Howard's character for violence, Howard's attorney urged the trial judge 

(District   Court   Judge   David   V.   George)   to   exclude   the   proposed   testimony   -   not 

because   it   was   irrelevant,   but   because   it   would   be   unduly   prejudicial.  The   defense 

attorney argued that, since Craig and Klawock comprised such a small community, it 

would be obvious to the jurors that Ely gained his knowledge of Howard's character for 

violence through prior police contacts. 

                 Judge George recognized that the question before him was whether Ely's 

proposed testimony would be unfairly prejudicial. He noted that his task was "to identify 

[the] type of evidence [that Ely was] going to [present], and put bounds on it." 

                 In   its   initial   offer   of   proof,   the   State   proposed   to   have   Ely   testify   that 

Howard was an "extremely violent person" when he used drugs or alcohol.  But Judge 

George told the prosecutor that Ely would not be allowed to characterize Howard as 

"violent"; instead, the judge directed Ely to use the word "aggressive".  Moreover, Judge 

George precluded Ely from testifying about Howard's use of drugs or abuse of alcohol 

because "that [would] inject[] a whole nother prejudicial [aspect] into this [trial]; ... folks 

don't love drugs here."       Judge George also precluded Ely from testifying that he knew 

Howard through his work as a police officer. 

                                                   - 4 -                                              2277

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

               In other words, the record thus shows that Judge George weighed Ely's 

proposed testimony under Evidence Rule 403:            the judge considered the testimony's 

potential for unfair prejudice, and he took affirmative steps to limit that prejudice. 

               Howard argues, in one conclusory sentence, that the record fails to support 

Judge George's conclusion that Sergeant Ely's testimony (redacted in this manner) was 

more probative than prejudicial. 

               When     we   review   a  trial  judge's  weighing   of  probative   value  versus 

potential for unfair prejudice under Evidence Rule 403, we review the judge's ruling 

under the "abuse of discretion" standard. The "abuse of discretion" standard is employed 

because this is the type of ruling where there is no "right" answer, and where reasonable 

judges,    confronted    with   the  same   facts,  might    come   to  differing   conclusions. 

Accordingly, we are to affirm the trial judge's ruling unless it is clearly untenable or 

unreasonable.    Gonzales v. State, 691 P.2d 285, 286 (Alaska App. 1984). 

               Here,    the  record   shows    that  Judge   George    engaged    in  a  reasoned 

assessment of the proposed evidence.         Howard has not established that Judge George 

abused his discretion. 

               Our conclusion that Judge George did not abuse his discretion in this case 

should not be read as a blanket approval of the State's calling police officers or other 

justice system officials to testify about the character of a defendant.   Indeed, in Hammer 

v.   State,   Alaska   App.   Memorandum   Opinion   No.   4716   (June   4,   2003),   2003   WL 

21279539,      we  reversed   a  conviction   because   the  State  presented   the  defendant's 

probation officer as a character witness. 

               In Hammer, we acknowledged that, because Hammer took the stand at his 

trial, "the State was undoubtedly entitled to attack Hammer's character for truthfulness 

by introducing reputation or opinion evidence under Rule 608(a)".  Id. at *2.  However, 

we concluded that "the fact that the State's character witness was Hammer's probation 

                                              - 5 -                                         2277

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

officer inherently created a substantial possibility of unfair prejudice" for two reasons: 

first, "[because] Hammer's probation status meant that he had committed prior crimes"; 

and second, because "any juror familiar with the criminal justice system in this state 

[would have realized that] the fact that Hammer had an assigned probation officer (and 

was not simply on unsupervised probation) meant that he had been convicted of a felony, 

not a misdemeanor."       Ibid. 

                We further noted that "[t]he State made no effort to show that [Hammer's] 

probation officer was the only witness (or even the only reasonably available witness) 

who could give an opinion concerning Hammer's character for truthfulness."                    Ibid. 

                Based on these factors, we held that the trial judge abused his discretion 

under Alaska Evidence Rule 403 when he allowed the State to call Hammer's probation 

officer as a character witness.  Ibid. 

                Returning   to   the facts of the present case, the State's decision to call a 

police officer as a character witness at Howard's trial obviously raised the same concerns 

that we addressed in Hammer.            However, Howard's case is factually distinguishable 

from Hammer,   in   that   the   State's   chosen   witness   was   a   police   officer   rather   than   a 

probation officer. 

                In Hammer, we concluded that the jurors must have inferred that Hammer 

had committed crimes in the past if he had a probation officer.              But in Howard's case, 

the State's character witness was a small-town police officer - and, for that reason, it 

is not so obvious that jurors would draw the inference that Howard had committed past 


                First, because the cities of Craig and Klawock are relatively small, there 

was a reasonable possibility that Ely would be acquainted with Howard simply because 

they were residents of the same community, and not because Ely had come to know 

Howard through police business.           As we have explained, Judge George took steps to 

                                                 - 6 -                                            2277

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

heighten this inference when he precluded Ely from testifying that his knowledge of 

Howard arose from his work as a police officer. 

                Second, even if we assume that the jurors surmised that Ely's acquaintance 

with Howard stemmed from Ely's work as a police officer, it would not necessarily 

follow that Howard had a record of past criminal convictions, or even that Howard had 

been charged with breaking the law on past occasions.  As the Missouri Supreme Court 

noted in State v. Reilly, 674 S.W.2d 530, 532-33 (Mo. 1984), "It is well known that most 

police officers have a wide acquaintance among the citizenry in general[,] and the fact 

that a person is known to a police officer does not necessarily convey the impression that 

he has a criminal record." 

                While   the   Missouri   court's   observation   might   be   questionable   in   cases 

arising in a large city, we believe that the observation has considerable force in cases 

arising    in  small   communities,     like  Craig   and   Klawock,     where    police   officers   are 

summoned to deal with many situations that do not involve criminal acts, or that do not 

lead to criminal charges, and where officers frequently come into contact with citizens 

outside of their police duties. 

                Compare this Court's decision in Cruz-Reyes v. State, 74 P.3d 219, 225 

(Alaska App. 2003), where we found that even if the jurors recognized a witness as an 

Immigration and Naturalization officer, and even if the jurors surmised that the witness's 

acquaintance with the defendant stemmed from official INS business, it did not follow 

that   the   jurors   would   necessarily   conclude   that   the   official   INS   business   involved 

misconduct on the part of defendant. 

                For these reasons, we conclude that Howard has failed to show that Judge 

George acted unreasonably when he concluded that, despite Ely's identity as a police 

officer, Ely's testimony was more probative than prejudicial under Evidence Rule 403. 

                                                 - 7 -                                             2277

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

               Howard raises an additional argument:  that Judge George should not have 

allowed Ely to testify while in uniform.  Howard's attorney did raise this objection in the 

trial court, but we conclude that Judge George did not abuse his discretion when he 

overruled this objection. 

               Howard's       attorney   had   already   conceded    (indeed,   had   affirmatively 

relied on) the fact that the jurors lived in the same small community with Ely and would 

therefore inevitably know that he was a police officer.  Consequently,  there is no reason 

to believe that the jurors would have evaluated Ely's testimony any differently if he had 

appeared in court wearing plain clothes. 

               Moreover, even though the prosecutor gave plenty of notice of the State's 

intention to have Sergeant Ely testify as a character witness, Howard's attorney did not 

raise the objection about Ely's wearing his police uniform until Ely actually appeared in 

court to give his testimony. 

                Given these circumstances, we find that Judge George did not abuse his 

discretion when he overruled Howard's objection. 

               Finally, Howard argues that Ely's testimony should have been excluded 

under Evidence Rule 404(b)(1), the rule that forbids evidence of a person's other crimes 

or bad acts if that evidence   is offered to prove (1) that the person characteristically 

engages in such acts, and thus (2) is likely to have acted true to character during the 

episode currently being litigated. 

               Howard does not claim that Ely expressly referred to any of Howard's prior 

acts of violence.    Moreover, as we noted before, Judge George did not allow Sergeant 

Ely to testify that he knew Howard through his work as a police officer.                 However, 

Howard again argues that it was implicit, from Ely's testimony, that Ely's knowledge of 

Howard   was   gained   through   police   business,   and   that   Howard   must   therefore   have 

engaged in previous criminal acts. 

                                               - 8 -                                           2277

----------------------- Page 9-----------------------

                Howard did not raise this argument in the district court, so he must show 

plain error.    For the reasons we have already explained, we conclude that the jurors 

would   not   necessarily   have   drawn   the   prejudicial   inferences   that   Howard   proposes. 

Thus, Howard has failed to show plain error. 


                The judgement of the district court is AFFIRMED. 

                                                - 9 -                                           2277
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