Made available by Touch N' Go Systems, Inc. and
Law Offices of James B. Gottstein.
406 G Street, Suite 210, Anchorage, AK 99501
(907) 274-7686 fax 333-5869

You can of the Alaska Court of Appeals opinions.

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website to see how.


Hunter v. State (8/16/2013) ap-2398

Hunter v. State (8/16/2013) ap-2398

                                                                     NOTICE
  

            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 Courts:   



                                             303 K Street, Anchorage, Alaska  99501
  

                                                           Fax:  (907) 264-0878
  

                                    E-mail:  corrections @ appellate.courts.state.ak.us
  



                     IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



RICHARD FRANCIS HUNTER,  

                                                                                        Court of Appeals No. A-10657  

                                               Appellant,                            Trial Court No. 3AN-06-12594 CR  



                                   v.  

                                                                                                    O  P  I  N  I  O  N 

STATE OF ALASKA,  



                                               Appellee.                                 No. 2398  -  August 16, 2013  



                                                                                                  

                       Appeal   from   the   Superior   Court,   Third   Judicial   District,  

                       Anchorage, Philip R. Volland, Judge.  



                       Appearances:    Brooke  Berens,  Assistant  Public  Advocate,  

                       Appeals & Statewide Defense Section, Rachel Levitt, Acting  

                                                                       

                       Public  Advocate  (opening  brief),  and  Richard  Allen,  Public  

                       Advocate (reply brief), Anchorage, for the Appellant.  Terisia  

                       Chleborad,   Assistant   Attorney   General,   Office   of   Special  

                       Prosecutions  and  Appeals,  Anchorage,  and  John  J.  Burns,  

                       Attorney General, Juneau, for the Appellee.  



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

                       Judges.  



                       Judge MANNHEIMER.  



                       Richard Francis Hunter appeals his convictions for second-degree murder   



and tampering with evidence.  At trial, the major issue was whether Hunter acted in self-  


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

defense.  On appeal, the question is whether the superior court committed error when,  

                                                  



over  Hunter's  objection,  the  court  allowed  two  police  officers  to  testify  concerning  



Hunter's propensity for aggression and violence.   



                   One of these officers testified that Hunter had a reputation as a violent  

                                                                 



person.    The  second  officer  testified  that,  in  his  opinion,  Hunter  was  an  aggressive  



person.  But as we explain in this opinion, the record (even viewed in the light most  



favorable to the government) does not show that the first officer met the foundational  



requirements for offering testimony concerning Hunter's reputation.  As to the second  

                                                                                                          



officer, the trial judge failed to make a finding as to whether this officer's knowledge of  

                                                                                                          



Hunter was sufficient to allow him to offer an opinion concerning Hunter's character.  



                   Because Hunter's claim of self-defense was the major issue litigated at  



Hunter's trial, we conclude that these evidentiary errors require us to reverse Hunter's  

                                                        



conviction on the murder count.  



          Underlying facts  



                   At Hunter's trial, the State presented the testimony of Anchorage Police  



Detective Pamela Perrenoud and the testimony of Anchorage Police Officer Jack Carson  

                                                                        



concerning Hunter's character for violence and aggression.  



                   Detective Perrenoud testified that, because she was the lead investigator in  

                                   



the case, she looked into Hunter's background - and that, in the process of investigating  



Hunter's background, she learned that Hunter possessed "the tendency towards violence  

                                                                   



and aggression".  Later in the trial, Officer Carson testified that, in his opinion, Hunter  

                                                    



was "a very aggressive person".  



                   Before the testimony of these officers was presented to the jury, the trial  



judge and the attorneys discussed the admissibility of the testimony, and the prosecutor  

                                                                                   



                                                           - 2 -                                                      2398
  


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

made offers of proof concerning the bases of both Perrenoud's and Carson's proposed  



testimony.  



                    The   prosecutor   acknowledged   that   Detective   Perrenoud   had   never  



personally  encountered  Hunter,  and  that  Perrenoud's  knowledge  of  Hunter  and  his  

                                                 



character  was  wholly  obtained  through  her  investigation  into  Hunter's  criminal  

                                                  



background.  According to the prosecutor's offer of proof, Perrenoud conducted this  



investigation by "[speaking] with a number of other law enforcement officers", and by  



"review[ing] a number of ... documents prepared by law enforcement officers".  The  



prosecutor told the court that Detective Perrenoud, through her examination of Hunter's  

                                                                           



"plethora of contacts ... with law enforcement", either learned or inferred "that [Hunter]  

                                                 



has a reputation as being an aggressive or violent individual in the community".  



                   With  regard  to  Officer  Carson's  opinion  of  Hunter's  character  for  



aggression,  the  prosecutor  explained  that  Carson's  opinion  was  based  on  a  single  



encounter:  One night in August 2006, Hunter was walking along the street, intoxicated,  

                                                                                                     



when he jumped out in front of Carson's patrol vehicle.  Carson stopped his car and  

                                                                         



chased Hunter on foot.  According to the prosecutor's offer of proof,  



                     

                    [Carson is] trying to chase Hunter down, [and] they get into  

                                                                       

                    a ... wrestling match on the ground, which culminates with  

                                                                                    

                    Mr. Hunter grabbing Officer Carson by the testicles, and not  

                                                                                    

                   releasing him despite being hit repeated times, until Officer  

                    Carson has to take the extreme measure of actually stomping  

                                                                                  

                    on Mr. Hunter's head ... .  



The prosecutor told the court that, "based on that [one] contact with Mr. Hunter", Carson  

                                                                                                        



had "formed [the] opinion ... that Mr. Hunter was an assaultive individual".  



                   With respect to Perrenoud's proposed testimony, Hunter's attorney raised  

                                                              



two  objections:    first,  that  the  proposed  testimony  did  not  meet  the  foundational  



                                                            -  3 -                                                      2398
  


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

requirements  of  Alaska  Evidence  Rule  405(a),  and  second,  that  Perrenoud  had  no  

                                                                                                  



personal knowledge of Hunter's reputation.  



                   Evidence Rule 405(a) declares that when evidence of a person's character  



is  admissible,  a  litigant  may  prove  the  person's  character  "by  testimony  as  to  [the  



person's]  reputation  in  any  community  or  group  in  which  the  individual  habitually  

                                          



associated", or "by testimony in  the form of opinion".  Hunter's attorney argued that  

                              



Perrenoud's  proposed  testimony  concerning  Hunter's  reputation  within  the  law  



enforcement community was not admissible under Rule 405(a) because Hunter was not  

                                                                                                        



a  member  of  the  law  enforcement  community;  that  is,  Hunter  did  not  "habitually  



associate" with law enforcement officers as a group.  



                   When the trial judge asked the prosecutor to respond to this  argument, the  

                                                                                                          



prosecutor  conceded  that  Hunter  did  not  habitually  associate  with  law  enforcement  



officers.  However, the prosecutor declared that Perrenoud's testimony would not really  

                                                  



address  Hunter's  reputation  within  the  law  enforcement  community.    Rather,  the  



detective's  testimony  would  describe  Hunter's  reputation  "in  the  community  of  



Anchorage" at large - because the law enforcement officers whom Perrenoud polled  



(to gather her information concerning Hunter's reputation) were, themselves, members  



of the Anchorage general community.  



                   In other words, the prosecutor argued that law enforcement officers were  



members  of  the  community  at  large,  and  thus  a  person's  reputation  among  law  

                                                                             



enforcement officers was the person's reputation within the community in general (even  



though that reputation was derived from a small sample of the community).  



                   The  trial  judge  decided  to  allow  Perrenoud  to  testify  about  Hunter's  

                                                                       



reputation  for  aggression  and  violence,  but  not  under  the  prosecutor's  suggested  



rationale.  Rather, the trial judge concluded that police officers could properly testify  

                                  



about  "someone's  reputation  on  the  street"  -  i.e.,  someone's  reputation  within  the  

                                                                                              



                                                           - 4 -                                                      2398
  


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

general community - because "it's a function of law enforcement", and "a necessary  



[component]  of  their  jobs",  to  formulate  opinions  about  the  propensity  of  various  

                                                                                        



individuals to be law-abiding or non-law-abiding.  



                   Hunter's  attorney  raised  a  second  objection  to  Perrenoud's  proposed  



testimony:    he  argued  that  it  was  improper  for  Perrenoud  to  testify  about  Hunter's  



reputation in the community when Perrenoud's knowledge of this matter was based on  

                                                                                            



"reading  police  reports  from  other  officers".    Responding  to  the  defense  attorney's  

                                                                                          



objection, the trial judge ruled that this was a proper basis for Perrenoud to formulate her  

                                                   



knowledge of Hunter's reputation.  



                   With regard to Officer Carson's proposed testimony concerning his opinion  



that Hunter was an aggressive person, Hunter's attorney again objected on the ground  



that  the  proposed  testimony  did  not  meet  the  foundational  requirements  of  Alaska  

                                                                                           



Evidence Rule 405(a).  Specifically, the defense attorney argued that a single meeting  



or encounter did not provide a legally sufficient basis for the officer to offer an opinion  

                                                                               



concerning Hunter's character under Evidence Rule 405(a).  The trial judge rejected this  

                                                       



argument, ruling that the officer's opinion was admissible even if it was based on a single  

                          



instance or interaction.  



                   Having rejected both of the defense attorney's objections, the trial judge  



allowed the prosecutor to present evidence of Hunter's propensity for aggression and  



violence through the testimony of the two officers.  



          Why we conclude that Detective Perrenoud should not have been allowed  

                                                          

          to testify concerning Hunter's reputation for violence  



                    On appeal, Hunter renews his argument that Perrenoud should not have  

                                      



been  permitted  to  testify  about  Hunter's  reputation  among  the  law  enforcement  

                                         



                                                            -  5 -                                                      2398
  


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

community, since Hunter was not a member of, nor did he "habitually associate" with,  

                                                       



the law enforcement community.   



                    As we have just explained, when Hunter's attorney raised this objection in  

                                       



the trial court, the prosecutor acknowledged that Hunter was not a member of the law  

                                                                                                                  



enforcement community, but the prosecutor attempted to circumvent this problem by  

                                             



asserting that Hunter's reputation among law enforcement officers was, legally speaking,  



the same as his reputation in the general community - since law enforcement officers  

                                        



are  members  of  the  community  at  large.    On  appeal,  the  State  again  argues  that  



Perrenoud's testimony did not simply describe Hunter's reputation in the law enforce- 

                                                                                                     



ment community, but rather described Hunter's reputation in the community at large -  

                                                                        



although, this time, the State argues that the "community at large" included not only  



Anchorage but also Bethel and the village of Emmonak.  



                    More specifically, the State argues that Hunter's "plethora of contacts ...  

                                                               



with law enforcement" in Anchorage and Bethel presumably must have been based on,  

                                                                                                    



or initiated because of, the personal observations of police officers and citizen-witnesses.  

                                                                            



Therefore, the State argues, the existence of these police contacts creates a reasonable  



inference that many people in these communities believed that Hunter was aggressive  



and violent.   



                    Based on this reasoning, the State asserts that when Perrenoud investigated  

                                                                                       



Hunter's history of police contacts, she was simultaneously acquainting herself with  



Hunter's reputation for violence in the community at large - and she could therefore  



testify about that reputation.   



                    There are two flaws in the State's argument.  First, the existence of police  

                                    



reports concerning a person's acts of violence or aggression does not necessarily mean  

                                                                      



that  the  community  at  large  views  that  person  as  a  generally  violent  or  aggressive  

                                    



individual.  For the most part, the police are called only when there is trouble.  Thus,  

                                                     



                                                             -  6 -                                                       2398
  


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

police reports concerning an individual may not necessarily reflect that person's normal  

                                                                         



character, but rather only the instances where the person departed from their normal  



character.  



                    The second flaw, and the more important flaw, is that the State's argument  



is inconsistent with the foundational requirements that had to be met if Perrenoud was  



to testify about Hunter's reputation.  



                    As the first paragraph of the Commentary to Alaska Evidence Rule 405(a)  

                                                          



explains, "The [required] foundation for [reputation] testimony comes in the form of  

                                                                                                   



establishing that the witness has sufficient familiarity with the people in the community  

                                                                                 



so that he can make a valid attempt at assessing [the person's] reputation."  



                    The  Commentary  then  gives  a  fuller  explanation  of  what  is  meant  by  



"sufficient familiarity with the people in the community" - by extensively quoting a law  

                                                                                              



review article written by Dean Mason Ladd of the University of Iowa Law School,  



Techniques and Theory of Character Testimony, 24 Iowa Law Review 458, 513 (1939):  

                                                                                                           



                      

                              The object of the law in [allowing reputation evidence  

                                                    

                    to  prove]  character  is  to  get  the  aggregate  judgment  of  a  

                    community rather than the personal opinion of the witness  

                                                                                          

                    which might be considered to be warped by his own feeling  

                                                                       

                    or  prejudice.    [This]  reputation  must,  to  be  admitted,  be  

                    general  in  a  community  rather  than  based  upon  a  limited  

                    class. While it is not necessary that a character witness know  

                                                                                           

                    what the majority of a neighborhood think of a person, he  

                                                                               

                    must  know  of  the  general  regard  with  which  the  party  is  

                                                                                             

                    commonly held.  

                              .  .  .  



                              The requirement that the reputation be broadly general  

                    rather than that of a particular group ... again emphasizes the  

                                                 

                    effort  to  get  away  from  [a]  secularized  and  consequently  

                                   

                    biased estimate of character.  ...  The reputed character of a  



                                                              -  7 -                                                        2398
  


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

                    person  is  created  from  the  slow  spreading  influence  of  

                                                 

                    community  opinion[,]  growing  out  of  his  behavior  in  the  

                                                        

                    society in which he moves and is known[,] and upon this  

                    basis [reputation evidence] is accepted as proof of what his  

                              

                    character actually is.  



The foregoing description of the foundational requirements for reputation testimony  

                                              



suggests  that  Detective  Perrenoud  should  not  have  been  allowed  to  offer  testimony  



concerning Hunter's reputation.   



                    Perrenoud derived her knowledge of Hunter's reputation solely by reading  

                                                                            



police  records  and  interviewing  police  employees.    When  the  prosecutor  made  the  



government's offer of proof in the superior court, the prosecutor conceded that Hunter  

                                                                             



was not a member of the police community nor did Hunter habitually associate with that  

                                                                                        



community.    Nevertheless,  the  prosecutor  argued  that  because  police  officers  are  

                                            



themselves  members  of  the  community  at  large,  Hunter's  reputation  among  police  



officers was tantamount to his reputation in the community at large.   



                    But  as  the  above-quoted  commentary  explains,  when  a  party  offers  a  

                                                             



witness to testify about a person's reputation in a specified community, that witness must  

                                    



know  of  the  reputation  that  is  "broadly"  or  "general[ly]"  held  in  that  specified  



community, rather than the reputation that the person has among "a particular group"  



within that community. This foundational requirement would seem to be most important  

                                            



when the "particular group" - here, the law enforcement segment of the community -  

                                                                                                              



encounters the person only under particular circumstances, or only upon the occurrence  

                                                                   



of a particular kind of event.  



                    This is not to say that police officers are uniformly precluded from offering  

                                                                                



evidence of a person's reputation within a community.  As the trial judge in Hunter's  



case recognized, a police officer whose duty is to patrol a community, and who therefore  

                                                            



                                                              -  8 -                                                        2398
  


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

engages  in  a  large  number  of  conversations  and  interactions  with  members  of  that  



community,  might  well  have  sufficient  knowledge  of  the  community  reputation  of  



various individuals to offer testimony on that point.  



                    The   prosecutor   at   Hunter's   trial   asserted   that   Detective   Perrenoud  



investigated Hunter's reputation, not only by "review[ing] a number of ... documents  

                                                   



prepared by law enforcement officers", but also by "[speaking] with a number of other  

                                                                                                                    



law enforcement officers".  Because Perrenoud apparently polled "a number of other ...  

                                                                                                                 



officers", it is conceivable that Perrenoud spoke to one or more officers who, themselves,  

                                             



would  have  been qualified to offer testimony concerning Hunter's reputation in the  

           



community.   



                    But a witness does not become qualified to offer testimony concerning a  

                                                                   



person's reputation simply by interviewing  other people who, themselves, would be  

               



qualified to offer testimony on this subject.   



                    As Wigmore explains, the rule at common law was that character witnesses  

                                        



had to reside in the community where the person's reputation was developed.  Witnesses  



did  not  become  qualified  to  testify  about  a  person's  reputation  "by  a  mere  visit  of  



inquiry, or by a casual sojourn, or by a conversation with a resident who [was acquainted  

                                                                            

with] the reputation". 1  

                                    



                                                                                                       

                    Wigmore suggests, however, that this common-law rule is nowadays "too  



strict", because it is now possible to conduct "organized investigation and research" into  

people's attitudes and beliefs. 2  

                                              Given modern polling and research techniques, Wigmore  



                                                                                

declares that "[s]ystematic inquiry by a person coming from outside will often be a better  



     1    John   Henry  Wigmore,  Evidence  in  Trials  at  Common  Law  (Chadbourn  revision,  



1970),  692, Vol. 3, pp. 20-21.  



     2    Id. ,  692, Vol. 3, p. 22.  



                                                            -  9 -                                                         2398  


----------------------- Page 10-----------------------

source of knowledge than the casual opportunities of a neighbor or a friend [to gain       



                                                          3  

knowledge of a person's reputation]."     



                            

                    One court decision embodying  Wigmore's suggested approach is State v.  



                                   

Cross, 343 S.W.2d 20 (Mo. 1961).  The Missouri court endorsed the general rule that  



                                                                                                        

"[a] person possessing [an] acquaintance with the general reputation of the [person] in  



                                                                            

the neighborhood or among the people with whom the [person] associates ... may testify  

concerning  [that]  reputation." 4  

                                                    The  court  then  added  that,  at  least  potentially,  a  



reputation witness would not need to personally be a member of the same community:  



                      

                              [We  do]  not  hold  that  a  stranger-investigator  may  

                    never,   under   any   circumstances,   acquire   the   necessary  

                    testimonial  qualifications  on  the  ...  issue  of  [a  person's]  

                                                                                                   

                    reputation.    On  the  contrary,  we  are  of  the  view  that  an  

                    investigation and inquiry made for the specific purpose of  

                    discovering  [a  person's]  reputation  ...  may  extend  over  a  

                                                                      

                    sufficient time, be broad enough in scope, and be otherwise  

                                                  

                    conducted  in  such  a  manner  as  to  enable  the  investigator  

                    reasonably to arrive at a probatively valuable conclusion as  

                    to  the  manner  in  which  [the]  community  regards  [that  

                    person].  



Cross, 343 S.W.2d at 24.  



                    However, even under this more relaxed, modern rule, courts should not  



                                           

admit reputation testimony from witnesses like Detective Perrenoud -  because, as  



                                                        

Wigmore cautions, courts should not allow an outside inquirer to testify about a person's  



     3    Ibid.
   



     4    Cross, 343 S.W.2d at 23. 
 



                                                            -  10 -                                                          2398  


----------------------- Page 11-----------------------

reputation  "when  the  inquirer  is  a  paid  partisan  agent  who  seeks  evidence  for  one  

purpose only". 5  

                           



                    Detective Perrenoud was obviously a "paid partisan agent" of the State.  



And the way that Perrenoud conducted her investigation - i.e., her decision to research  

                                           



Hunter's reputation solely by examining police records and interviewing police officers  

                               



- indicates that Perrenoud "[sought the] evidence for one purpose only".  Perrenoud  

                           



could reasonably foresee that her sources were likely to provide accounts of Hunter's  



worst behavior, and were unlikely to provide accounts of Hunter's acts of peacefulness  



or law-abidingness.   



                    The danger of allowing witnesses like Detective Perrenoud to testify about  

                                                                                            



a person's character was explained by an English court more than two centuries ago.  

                                                                                     



Here is what Lord Chief Justice Kenyon said in Mawson v. Hartsink , 4 Espinasse's Nisi  

                                                

Prius Reports 102 (1802): 6  



                      

                                                                              

                    If   this   was   allowed,   when[ever]   it   was   known   that   a  

                                                                          

                    [particular]  witness  was  likely  to  be  called,  it  would  be  

                                             

                    possible for the opposite party to send round to persons who  

                    had prejudices against [the witness] and from thence to form  

                                                                                        

                    an opinion ... which ... afterwards [would] be told in court to  

                    destroy his credit.  



This appears to be what happened in Hunter's case.  



                    But despite this warning from so long ago, courts still encounter modern  



variants of this practice.  For example, in Hernandez v. State , 800 S.W.2d 523 (Tex.  



Crim. App. 1990), the prosecution called two witnesses - a deputy constable and a  



                                                                                           

justice of the peace - to testify about the defendant's bad reputation with regard to  



     5    Ibid.  



     6    Quoted in  Wigmore,  692, Vol. 3, p. 21.  



                                                            - 11 -                                                          2398  


----------------------- Page 12-----------------------

peacefulness and law-abidingness.  These two witnesses had no personal knowledge of           



the defendant's reputation in the community.                                Rather, they claimed to have knowledge   



of    the   defendant's   reputation   by   virtue   of   their   acquaintance   with   past   police  



investigations, and their receipt of complaints concerning the defendant's prior acts of                                             

public intoxication and disorderly conduct. 7  



                      The Texas Court of Criminal Appeals concluded that these two witnesses  



should not have been allowed to testify.  The court explained that  



                        

                                                               

                      [t]he trustworthiness of reputation testimony stems from the  

                      fact that a person is observed in his day[-]to[-]day activities  

                      by other members of the community[,] and these observations  

                      are discussed [within the community].  Over a period [of]  

                      time[,]   there   is   a   synthesis   of   these   observations   and  

                      discussions which results in ... the individual's reputation.  

                      [But  when  testimony  about]  reputation  is  based  solely  on  

                                                                                       

                      specific [reported] acts, this synthesis is lost, as well as its  

                      reliability.  

                                 .  .  .  



                      Substantial familiarity with specific acts is not the same as  

                      substantial familiarity with reputation.  



Hernandez , 800 S.W.2d at 524.  



                                                                                                  

                      Because the two witnesses in Hernandez did not directly ask community  



                                                                                                            

members about Hernandez's reputation, but simply inferred that Hernandez must have  



a  bad  reputation  based  on  their  prior  investigations  (as  public  officials)  and  their  



                                                                                                                                 

discussions with community members concerning Hernandez's prior bad acts, the Texas  



      7    Hernandez , 800 S.W.2d at 524.  



                                                                   -  12 -                                                              2398  


----------------------- Page 13-----------------------

Court of Criminal Appeals held that "the witnesses were not competent to testify as to  

[Hernandez's] reputation." 8  



                   See  also   People  v.  Bingham ,  394  N.E.2d  430,  437  (Ill.  App.  1979)  



("Community  reputation  testimony  about  a  person  must   be  based  upon  a  witness's  



knowledge [of that reputation] through association and contact with the person's friends  



and neighbors."); Commonwealth v. United Food Corp., 374 N.E.2d 1331, 1336 (Mass.  

                                                     



1978) ("We agree that evidence of specific events, statements, or opinions may not be  



used to prove reputation[.]");  Commonwealth v. Pilosky, 362 A.2d 253, 256 (Pa. App.  



1976) (holding that the trial judge properly refused to admit the testimony of a private  



investigator who was hired by the defense to investigate the victim's character:  "There  

                                



was  no  [evidence]  ...  that  [the  investigator]  could  testify  to  [a]  familiarity  with  or  

                             



personal knowledge of the victim's repute.").  



                   The evidentiary foundation that the Texas court declared to be inadequate  

                                                                                                     



in Hernandez is essentially the same foundation that the State offered for Detective  

                                                        



Perrenoud's testimony in Hunter's case.  The prosecutor did not claim that Perrenoud's  



knowledge  of  Hunter's  reputation  stemmed  from  her  longstanding  residence  in,  or  



longstanding association with, the community in which Hunter resided.  Rather, the  



prosecutor declared that Perrenoud's knowledge of Hunter's reputation was based on her  

                                                                                                           



examination of police files, and on her interviews with police officers.   



                   As we explained earlier, it is conceivable that one or more of the police  



officers that Perrenoud interviewed might have had sufficient personal knowledge of  



Hunter's reputation in the community to testify about that reputation.  As the trial judge  

                                                                                                   



noted,  police  work  often  requires  officers  to  associate  themselves  closely  with  a  

           



community for a substantial period of time.  As a result of this longstanding association,  

                                                                       



     8   Hernandez , 800 S.W.2d at 525.  



                                                         -  13 -                                                       2398  


----------------------- Page 14-----------------------

an officer might acquire knowledge of various individuals' reputation within the general   



community,  and  might  become  qualified  to  testify  concerning  those  individuals'  



reputation.  



                    But Detective Perrenoud did not have sufficient knowledge of Hunter's  



reputation within the community - even if we view the prosecutor's offer of proof in  



the light most favorable to the State.  Accordingly, we conclude that it was error for the  

                                      



trial judge to allow Perrenoud to testify concerning Hunter's reputation for aggression  

                               



and violence.  



           Officer Carson's testimony that, in his opinion, Hunter was an aggressive  

                                      

          person  



                     On appeal, Hunter renews his argument that Officer Carson should not have  



been allowed to give his opinion of Hunter's character for aggression because Carson's  



opinion was based on a single episode - a single interaction between the officer and  

                                                                  



Hunter.  In support of this argument, Hunter cites decisions from other states in which  

                                   



appellate courts upheld trial court rulings that a single incident or interaction was not a  

                                     



sufficient  basis  for  a  witness  to  offer  an  opinion  concerning  another  person's  

character. 9  

                       



                                                                                                                

                    But  in  these  instances,  the  appellate  courts  did  not  hold  that  a  single  



incident  or  interaction  could  never  be  a  sufficient  basis  to  offer  opinion  testimony  



concerning a person's character.  Rather, these appellate courts upheld rulings by trial  



                                                        

judges that the particular incident or interaction offered in those cases did not furnish the  



witness with a sufficient basis for evaluating the other person's character.    



     9    State v. Irby, 368 N.W.2d 19, 23 (Minn. App. 1985);                          State v. Maxwell, 18 P.3d 438,   



444-45 (Or. App. 2001).  



                                                             -  14 -                                                           2398  


----------------------- Page 15-----------------------

                      When a witness proposes to offer an opinion concerning another person's       



trait of character, the law requires a foundational showing that the witness personally     



knows the other person well enough to have formed a reliable opinion concerning the  

particular character trait at issue. 10 

                                                         As a practical matter, this foundational showing will  



                                                                                                            

hinge on several factors - primarily, the nature of the relationship between the witness  



                                                                                                         

and the other person, the length and recency of that relationship, and the frequency and  



nature of their contacts.  



                      Even a short acquaintance could conceivably form an adequate basis for an  



opinion regarding another person's character, if that short acquaintance were marked by  

                                                                              



striking  occurrences  or  interactions  which  clearly  demonstrate  the  character  trait  at  

issue. 11                                                                            

              But in making this assessment, a trial judge must bear in mind that the ultimate  



inquiry is the witness's ability to meaningfully judge the other person's character.  



                      In this context, "character" means a "generalized description of [a person's]  



                                                       

disposition in respect to a general trait such as honesty, temperance, or peacefulness" -  



                                             

"a person's tendency to act [in a particular manner] in all the varying situations of life".  



                                                       

Commentary to Alaska Evidence Rule 406, first paragraph.  Thus, a person's underlying  



character  for  truthfulness  or  untruthfulness,  or  a  person's  underlying  character  for  



peacefulness or violence, must be distinguished from the person's individual acts that  



demonstrate truthfulness or untruthfulness, or that demonstrate peacefulness or violence.  



      10   See Edward J. Imwinkelried et alia, Courtroom Criminal Evidence (4th edition, 2005),  



  804,  Vol.  1,  pp.  342-43;  Edward  J.  Imwinkelried  and  Daniel  D.  Blinka,  Criminal  

Evidentiary Foundations (1997), chapter 6(b), p. 200; Clifford S. Fishman and Anne T.   

McKenna, Jones on Evidence (7th edition, 1998),  16:22, Vol. 3, pp. 150-51.   



      11  

                                                                                         

           See United States v. Watson , 669 F.2d 1374, 1382 (11th Cir. 1982); United States v.  

Lollar , 606 F.2d 587, 589 (5th Cir. 1979).  



                                                                 -  15 -                                                            2398
  


----------------------- Page 16-----------------------

                      A witness who has observed another person act peacefully or violently in             



the  past  may  still  not  know  enough  about  the  person  to  offer  a  meaningful  opinion  



concerning  the  person's  underlying  character  for  peacefulness  or  violence.                                                As  the  

                                                                                                                                  



Oregon Court of Appeals has noted, "To hold otherwise would mean that the distinction  

                                                                                            

between character traits and individual misdeeds would be obliterated." 12  

                                                                                                                         On the other  



hand, it is at least conceivable that a single act might convincingly reveal a person's  

                                                                                          



character.   



                      Here, the State offered proof of an interaction between Hunter and Officer  

                                                                                                                            



Carson  that  some  people  might  consider  sufficiently  striking  as  to  be  illustrative  of  

                                                                                                                  



Hunter's underlying character.  However, when the trial judge made his ruling as to  

                



whether Carson could offer an opinion about Hunter's character for aggression based on  

                                                                                                        



this single encounter, the trial judge did not undertake the kind of analysis we have just  



described.  Rather, the trial judge declared that if Carson had, indeed, formed an opinion  

                                                                                                                



about Hunter's character based on this single episode, then Carson should be permitted  



to  express  that  opinion  -  because  Evidence  Rule  405(a)  allows  opinion  evidence  



concerning a person's character.  The judge added that it was up to Hunter's attorney to  

                                                              



cross-examine Carson if he wished to show that Carson's opinion was unsubstantiated  

                                                                                                



or based on inadequate information.  



                      This was an abrogation of the judge's gate-keeping function.  While Officer  



Carson may have subjectively formed an opinion about Hunter's character based on their  

              



one interaction, the trial judge was still required to determine, as a foundational matter,  

                                                                 



whether  this  single  act  of  violence  was  sufficient  to  allow  Carson  to  meaningfully  



evaluate Hunter's underlying character for aggression - Hunter's "tendency to act [with  

                                                                                                           



aggression] in all the varying situations of life".   



      12   State v. Maxwell, 18 P.3d 438, 445 (Or. App. 2001).  



                                                                  -  16 -                                                                2398  


----------------------- Page 17-----------------------

                    Because the trial judge did not reach this foundational question, we are  

                                         



unable to determine whether Carson should have been permitted to give the challenged  



testimony.  However, we need not address this matter further - because we conclude  



that  even  if  Carson's  testimony  was  proper,  the  erroneous  admission  of  Detective  

        



Perrenoud's  testimony  concerning  Hunter's  reputation  for  violence  and  aggression  

                                                                                        



requires reversal of Hunter's murder conviction.  



           Why we conclude that the erroneous admission of Perrenoud's testimony  

                                                                   

          requires reversal of Hunter's murder conviction  



                    The central issues litigated at trial were (1) whether Hunter acted in self- 

                                                                                                                 



defense and, if so, (2) whether the amount of force that Hunter used was reasonable.  



Hunter  took  the  stand  and  testified  that  he  used  deadly  force  against  the  deceased  

                                                                                          



because the deceased would not let Hunter out of his vehicle, and because the deceased  



attacked Hunter with a utility knife. Aside from Hunter's testimony, the jury had limited  

                                                                                       



information about what happened inside the vehicle.  In this context, the jury was likely  

                                                                    



to give substantial weight to the testimony of the lead investigator, Detective Perrenoud,  

                                                 



that Hunter was known for possessing "the tendency towards violence and aggression".  

                                                           



                    We acknowledge that the jury also heard Officer Carson's testimony that,  

                                                            



in his opinion, Hunter was "a very aggressive person".  But the impact of that testimony  

                                              



was mitigated because the jury was told that Carson's opinion was based on a single  



(unspecified) incident.  And only Detective Perrenoud expressly informed the jury that  

                                            



Hunter was known for his propensity for violence.  



                                                             -  17 -                                                         2398
  


----------------------- Page 18-----------------------

                   We  conclude  that  there  is  a  substantial  likelihood  that  Perrenoud's  



testimony  appreciably  affected  the  jury's  decision  on  the  murder  charge,  and  we  

accordingly order a new trial on that charge. 13  



          Whether  the  erroneous  admission  of  Perrenoud's  testimony  requires  

         reversal of Hunter's evidence-tampering conviction  



                   In addition to his conviction for second-degree murder, Hunter was also  



convicted of evidence-tampering.  The State alleged that Hunter committed this crime  



when, following the homicide, Hunter threw his blood-covered jacket into the trash  



outside the Alano Club.  



                   In his brief to this Court, Hunter argues that the error in admitting the  



reputation evidence requires the reversal of both of his convictions, but he does not  



explain how the error in admitting the reputation  testimony might have affected the  

                                                                        



jury's verdict with respect to the evidence-tampering charge.  The State likewise does  



not address this issue in its brief.  



                   Although Hunter's reputation for violence and aggression would seem to  

                                                                  



have little relevance to the evidence-tampering charge, we hesitate to decide this issue  

                                                                                   



in  the  absence  of  meaningful  briefing.    Because  our  reversal  of  Hunter's  murder  



conviction means that we must return Hunter's case to the superior court, we conclude  

                                     



that it would be better for Hunter to present whatever argument he may have on this  

point to the superior court. 14  

                                            



     13  See   Love v. State , 457 P.2d 622, 634 (Alaska 1969) (holding that the test for the  



harmlessness of non-constitutional error is whether the appellate court "can fairly say that   

the error did not appreciably affect the jury's verdict").   



     14  See, e.g., Johnson v. State , 268 P.3d 362, 369 (Alaska App. 2012).  



                                                        -  18 -                                                    2398  


----------------------- Page 19-----------------------

         Conclusion  



                  Hunter's  conviction  for  second-degree  murder  is  REVERSED.                              The  



superior court shall decide whether Hunter is also entitled to a new trial on the evidence- 

                                                          



tampering charge because of the improper admission of the reputation evidence.  



                                                      -  19 -                                                 2398
  

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC