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Kenneth Harold Komakhuk Jr. v. State of Alaska (1/31/2020) ap-2666

Kenneth Harold Komakhuk Jr. v. State of Alaska (1/31/2020) ap-2666


              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  




                                                                                     Court of Appeals No. A-12655  

                                             Appellant,                          Trial Court No. 3AN-15-08600 CR  


                                                                                                   O P I N I O N  


                                             Appellee.                               No. 2666 - January 31, 2020  


                      Appeal   from  the  Superior  Court,  Third   Judicial  District,  

                      Anchorage, Michael D. Corey, Judge.  

                      Appearances:  Bradly A. Carlson, The Law Office of Bradly A.  


                       Carlson, LLC, under contract with the Public Defender Agency,  

                       and  Quinlan  Steiner,  Public  Defender,  Anchorage,  for  the  


                      Appellant.    A.  James  Klugman,  Assistant  District  Attorney,  

                      Anchorage, and Jahna Lindemuth, AttorneyGeneral, Juneau, for  


                      the Appellee.  

                      Before:         Allard,  Chief  Judge,  Harbison,  Judge,  and  Smith,  


                       Senior Superior Court Judge.*  

                      Judge ALLARD, writing for the Court.  

                      Judge SMITH, concurring.  

      *    Sitting  by   assignment  made  pursuant  to  Article  IV,  Section  11  of   the  Alaska  

Constitution and Administrative Rule 23(a).  

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

                        Kenneth Harold Komakhuk Jr. was convicted, following a jury trial, of                                                 

third-degree assault (under a recidivist theory) based on an altercation Komakhuk had   


with a bellman at the Marriott Hotel in downtown Anchorage.                                                                             

                                                                                                                        At trial, Komakhuk  




testified that he acted in self-defense and that the bellman was the initial aggressor. 

Over Komakhuk's objection, the State was allowed to introduce in its case-in-chief two  


character witnesses who testified that, in their opinions, Komakhuk was an aggressive  


and  violent  person  when  intoxicated.                                    Both  witnesses  had  limited  knowledge  of  


Komakhuk and they had each formed their opinions of his character based on a single  

prior incident in which Komakhuk had acted violently toward them in their capacity as  


law enforcement agents.  


                        On appeal, Komakhuk argues that the trial court failed to fulfill its gate- 


keeping  role  with  regard  to  this  character  evidence  and  he  asserts  that  the  error  


prejudiced his right to a fair trial.   For the reasons explained here, we conclude that  


admission  of  this  challenged  character  evidence  requires  reversal  of  Komakhuk's  




            Factual background  


                        On July 28, 2015, there was an altercation between Manuel Leal, who was  


working as a bellman at the Marriott Hotel, and Komakhuk, who was homeless at the  


      1     AS 11.41.220(a)(5) (recklessly causing physical injury to a person while having two            

or more prior qualifying convictions for assault).  



            See AS 11.81.330(a) ("A person is justified in using nondeadly force upon another  


when and to the extent the person reasonably believes it is necessary for self-defense against  


what the person reasonably believes to be the use of unlawful force by the other person,  

unless [certain exceptions apply].").  

                                                                          - 2 -                                                                    2666

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

time.  At trial, the two men testified, presenting two different versions of events.  No  


other witness to the altercation testified.  


                    Leal testified that he was approached by an intoxicated Komakhuk while  


helping a guest at the hotel valet.  Komakhuk asked for cigarettes, and when Leal said  


he had none and asked him to leave, Komakhuk became aggressive. According to Leal,  


Komakhuk left but he returned to the property a short time later and began interacting  

with a guest in the smoking area.  Leal testified that he was concerned Komakhuk was  


bothering her, and he again told Komakhuk to leave.   According to Leal, when he  


stepped in between the guest and Komakhuk, Komakhuk responded by pushing him,  


calling him a bitch, and then punching him in the face several times.  After Komakhuk  


fled the property, Marriott staff contacted the police.  


                    In contrast to Leal's testimony, Komakhuk testified that Leal was the initial  


aggressor in the altercation.  Komakhuk testified that, on the day of the incident, he was  


intoxicated and with his friend, another homeless man.  While on the way to the bus  


station, this friend asked a woman outside the Marriott hotel for a cigarette.  Komakhuk  


testified that he walked over to the woman and apologized for his friend's behavior, but  


Leal  misinterpreted  this  exchange  as  Komakhuk  threatening  her.                                          According  to  


Komakhuk, Leal walked over, grabbed Komakhuk by the vest, and started pushing him.  


Komakhuk testified that after Leal laid his hands on him, he responded by trying to push  


Leal away, at which point Leal swung at him.  Komakhuk was able to dodge the punch,  


and he admitted to then hitting Leal a couple times - although he claimed he did so only  


in self-defense after Leal tried to punch him.  


                                                              -  3 -                                                        2666

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

            The State's character witnesses         


                        Prior to trial, Komakhuk filed a notice of self-defense.                                                                      

                                                                                                                              In response, the  


State filed a motion under Alaska Evidence Rule 404(a)(2), seeking to rebut this self- 


defense  claim  by  introducing  character  witnesses  who  would  testify  at  trial  that  



Komakhuk was a violent person. 


                        At the evidentiary hearing on the State's motion, the State presented two  



potential character witnesses.                         The first witness, Amanda Ivins, worked for Anchorage  


Safety Patrol.  In that role, she took protective custody of intoxicated individuals who  


could not take care of themselves or who were a threat to others.  Ivins testified that she  


had interacted with Komakhuk "less than a half dozen times" through her work on the  


safety patrol.  However, her opinion that Komakhuk was a violent person was based on  


a single incident at the sleep-off center in which Komakhuk had become angry and  


assaultive after being woken up from an alcoholic blackout.   This incident occurred  


thirteen months before the altercation with Leal.  


                        The  State's  second  proposed  character  witness  was  Anchorage  Police  


Officer Christopher Simmons. Officer Simmons was involvedin thearrest ofKomakhuk  


in the present case. However, approximately a year and half before the altercation in the  

      3     See  Alaska  R.   Crim.  P.  16(c)(5)  (providing  that  "the  defendant  shall  inform   the  

prosecutor of the defendant's intention to rely upon a defense of . . . justification").   

      4     See Alaska Evid. R. 404(a)(2) (making admissible, as an exception to the general rule  

against character evidence for, "evidence of a relevant character trait of an accused or of a  


character trait for peacefulness of the victim offered by the prosecution in a case to rebut  


evidence that the victim was the first aggressor"); see also Alaska Evid. R. 405(a) (limiting  


evidence of character to testimony "as to reputation in any community or group in which the  


individual habitually associated" or testimony "in the form of an opinion").  


      5     See Alaska Evid. R. 404(a)(2)(i)-(iii) (requiring a hearing prior to the admission of  

character evidence).  

                                                                         - 4 -                                                                    2666

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

current case, Simmons had an interaction with Komakhuk and it was this interaction that                                                                                                                                        

formed the basis for his opinion that Komakhuk was a violent person.                                                                                                                                   During this   

interaction, an intoxicated Komakhuk "became belligerent" with the officer and had to                                                                                                                                              

be placed in handcuffs (and, ultimately, total restraints).                                                               

                                    After both witnesses testified, the superior court heard argument about the                                                                                                                 

underlying motion.                                   Komakhuk's attorney argued that the State had failed to satisfy the                                                                                                        

foundational requirements under                                                          Hunter v. State                          , asserting that the limited interactions                              

Ivins and Simmons had with Komakhuk were insufficient to allow them to meaningfully                                                                                                                  


evaluate his character for aggression "in all the varying situations of life."                                                                                                                                    

                                                                                                                                                                                                      The attorney  


noted that both witnesses had relied on how Komakhuk acted "when he was detained  


against his will for being intoxicated"- a specific circumstance that could have been a  


departure from, rather than reflective of, a person's normal character.  


                                    The prosecutor argued that there was a sufficient basis for the jury to hear  


this opinion testimony because both  witnesses had "personal knowledge about Mr.  


Komakhuk  and  about  his  character  because  they  personally  interacted  with  him."  


                                    The trial court agreed with the prosecutor that no further showing was  


required, and that the opinions of both character witnesses was admissible. In its ruling,  


the trial court noted the existence of popular social science literature that suggested that  


"humans do reach opinions fairly rapidly with respect to an individual's character."  


                                    At trial, the State was allowed to present both character witnesses in its  


case-in-chief.  In fact, the State's first witness at trial was Amanda Ivins, the Anchorage  


Safety Patrol character witness.  Ivins testified that, based on her personal encounters  


with Komakhuk, she was of the opinion that "[w]hen he is intoxicated . . . [Komakhuk]  


does notcontrol his behaviors very well,andisaggressive,especially towardsauthority."  

         6        Hunter v. State, 307 P.3d 8, 16-17 (Alaska App. 2013).  

                                                                                                              -  5 -                                                                                                      2666

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

On   cross-examination,  Ivins   acknowledged   that   she   was   not   present   during   the  

altercation with Leal.               

                              Officer Simmons testified later in the State's case-in-chief.                                                                          Most of his          

testimony related to the arrest in the current case.                                                          But the final question posed on direct                                

examination   elicited testimony                                        that,   based   on   his personal exposure to                                                Komakhuk,  

Officer Simmons developed an opinion that "[Komakhuk] is violent," at least when he                                                                                                        

is under the influence.       

                              Following deliberations, the jury convicted Komakhuk of third-degree                                                                   

assault.   This appeal followed.               

              Alaska Evidence Rule 404(a)(2) and the Hunter test  


                              Under federal law and the law of most jurisdictions, the prosecution in a  


criminal case is allowed to introduce character witnesses against a defendant only if the  


defendant  has  "opened  the  door"  to  such  evidence  either  by  introducing  character  


witnesses of their own or by attacking the character of the victim.7  


                                                                                                                                                    Thus, if a defendant  

       7       See, e.g., Fed. R. Evid. 404(a)(2)(A)-(B); Ala. R. Evid. 404(a)(1); Ariz. R. Evid.  

404(a)(1); Ark. R. Evid. 404(a)(1); Cal. Evid. Code   1103(a)-                                                                       (b); Co. R. Evid. 404(a)(1);  

Conn.  Code  Evid.     4-4(a)(1)-(2);  Del.  R.  Evid.   404(a)(2)(A)-(B);  Fla.  Stat.  Ann.     

90.404(1)(a)-(b)(1);  Haw.  Rev.  Stat.  Ann.    626-1,  Rule  404(a)(1);  Idaho  R.  Evid.  


404(a)(2)(A)-(B); Ill. R. Evid. 404(a)(1); Ind. R. Evid. 404(a)(2)(A)-(B); Iowa R. Civ. P.  

5.404(a)(2)(A)(i)-(ii); Kan. Stat. Ann.  60-447; Ky. R. Evid. 404(a)(1); La. Code Evid. Art.  


404(A)(1)-(2)(a);  Mass.  R.  Evid.  404(a)(2);  Me.  R.  Evid.  404(a)(2);  Md.  Rule  5- 


404(a)(2)(A)-(B);  Mich.  R.  Evid.  404(a)(1);  Minn.  R.  Evid.  404(a)(1);  Miss.  R.  Evid.  


404(a)(2)(A)-(B); Mont. R. Evid. 404(a)(1); Neb. Rev. Stat. Ann.  27-404(1)(a); Nev. Rev.  


Stat. Ann.   48.045(1)(a)-(b); N.H. R. Evid. 404(a)(1); N.J. R. Evid. 404(a)(1); N.M. R.  

Evid. 11-404(A)(2)(a)-(b); N.D. R. Evid. 404(a)(2)(A)-(B); Ohio R. Evid. 404(A)(1); Okla.  


Stat.  Ann.  tit.  12,    2404(A)(1);  Or.  Rev.  Stat.  Ann.    40.170(2)(A);  Pa.  R.  Evid.  

404(a)(2)(A)-(B); R.I. R. Evid. 404(a)(1); S.C. R. Evid. 404(a)(1); S.D. Codified Laws  19-  


                                                                                           -  6 -                                                                                    2666

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

introduces evidence of their character for peacefulness, the prosecution is entitled to                                                       


introduce evidence of the defendant's character for violence.                                                                    

                                                                                                      Likewise, if the defendant  


introduces evidence of the victim's character for violence, the prosecution is entitled to  


introduce evidence of the defendant's character for violence (as well as evidence of the  




victim's character for peacefulness). 


                      There is also a special rule that applies primarily in homicide cases. Under  


this rule, the prosecution is entitled to introduce evidence of a victim's character for  



peacefulness to rebut evidence that the victim was the first aggressor.                                                In other words,  

      7    (...continued)  

 19-404(a)(2)(A);  Tenn.  R.   Evid.  404(a)(1);  Tex.  R.  Evid.  404(a)(2)(A);  Utah  R.  Evid.  

404(a)(2)(A)-(B);  Vt.  R.  Evid.  404(a)(1);   Va.  Sup.  Ct.  R.  2:404(a)(1);  Wash.  R.  Evid.  

                                                                                                   904.04(1)(a); Wyo. R. Evid.  

404(a)(1); W. Va. R. Evid. 404(a)(2)(A)-(B); Wis. Stat. Ann.     


      8    See  22B  Charles  Alan  Wright  &  Kenneth  W.  Graham,  Jr.,  Federal  Practice  &  

Procedure,  Evidence    5238  (2d  ed.  2019)  (explaining  that  Federal  Rule  of  Evidence  


404(a)(2)(A) "codifie[d] the common law rule that gave the defense a choice:  do nothing  


and preserve the protection or open up defendant's character to attack by introducing some  


trait of character that made it less likely he committed the charged crime").  


      9    See id. at  5239 (noting that "when the defense attacks the character of the victim,  


the prosecutor can introduce evidence of the defendant's character under the 'tit-for-tat'  


exception, originally introduced by amendments in 2000 and now, as of 2011, found within  


[Federal Evidence] Rule 404(a)(2)(B)(ii)"). We note that not all jurisdictions permit the "tit- 


for-tat" exception.  See, e.g., Co. R. Evid. 404(a)(2); Ky. R. Evid. 404(a)(2); Miss. R. Evid.  


404(a)(2)(B); Or. Rev. Stat. Ann.  40.170(2)(A)(2)(b); Wis. Stat. Ann.  904.04(1)(b); Wyo.  


R. Evid. 404(a)(2).  

      10   Many jurisdictions, including the federal courts, limit this special rule to homicide  


cases under the theory that "a dead victim cannot attest to his peaceable behavior during the  


fatal encounter."  See  1 Kenneth S. Broun et. al, McCormick On Evidence   193 (8th ed.  


2020); see also 22B Charles Alan Wright & Kenneth W. Graham, Jr.,  Federal Practice &  

Procedure, Evidence  5239 (2d ed. 2019) (noting that special rule generally applies only to  



                                                                    -  7 -                                                              2666

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

whenever a defendant claims self-defense and offers any type of evidence that the victim                                                                   

was the first aggressor, the prosecution can respond with evidence of the peaceable                                                                 

 character   of   the   victim.     But   this   special  rule   is   limited   to   evidence   of   a   victim's  

peaceable character; it does not extend to evidence of the defendant's character.                                                                         11  


                          Alaska law is different.  In 1994, the Alaska legislature amended Alaska  


Evidence Rule 404(a)(2) to permit the prosecution to introduce "evidence of a relevant  



 character trait of an accused" to rebut evidence that the victim was the first aggressor. 


 In other words, under Alaska Evidence Rule 404(a)(2), the prosecution is entitled to  


 introduce evidence of a defendant's character for violence in response to evidence that  


the defendant acted in self-defense, even if the defendant has not otherwise opened the  


 door to such evidence by attacking the victim's character or by introducing character  


 evidenceofthedefendant's owncharacter for peacefulness. Asalready mentioned, other  


jurisdictions permit the prosecution to introduce evidence of  the victim's character for  

       10    (...continued)  

homicide cases because the victim "can speak for himself" in other types of cases).  

       11    See, e.g., United States v. Fountain, 768 F.2d 790, 795 (7th Cir. 1985) (holding that  

the defendant does not put character in issue simply by pleading self-defense and that when  


the accused offers such proof of self-defense, it does not permit proof of the accused's  


 character trait for violence); State v. Austin, 686 N.E.2d 324, 326 (Ohio App. 1996) (holding  


that defendant's claim of self-defense and evidence of first aggression by victim does not  


 open the door to evidence of the defendant's character); Kwallek v. State, 596 P.2d 1372,  


 1378-79 (Wyo. 1979) (holding that defendant's self-defense testimony does not open the  


 door to adverse character evidence); see also State v. Faust, 660 N.W.2d 844, 861 (Neb.  

2003) ("In criminal cases, the State is prohibited from attempting to prove the guilt of the  


 accused by initiating an attack on his or her character"); Roberts v. State, 866 S.W.2d 773,  

 775 (Tex. App. 1993) ("Generally, it is reversible error for the State to put the reputation of  


the accused in issue when he himself has not done so.").  

       12    SLA 1994, ch. 116,  2 ("An Act amending Alaska Rule of Evidence 404, relating to  


the admissibility of certain character evidence in court proceedings.").  

                                                                               -  8 -                                                                        2666

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


peacefulness to rebut evidence that the victim was the first aggressor.                                               But Alaska law       

appears to be alone in permitting evidence of                             the defendant's           character to rebut evidence       


that the victim was the first aggressor.                            


                      In Allen v. State , we upheld the constitutionality of Alaska Evidence Rule  



                                                                            But this holding was conditioned on the  

404(a)(2) against a due process challenge. 

      13   See,  e.g.,  Fed.   R.   Evid.  404(a)(2)(C)  (permits  evidence  of   victim's  character  for  

peacefulness in homicide case to rebut evidence that victim  was first aggressor); Ark. R.  


Evid. 404(a)(2) (same); Del. R. Evid. 404(a)(2) (same); Haw. Rev. Stat. Ann.    626-1, Rule  

404(a)(2)  (same); Idaho R. Evid. 404(a)(2)(C) (same); Ind. R. Evid. 404(a)(2)(C) (same); Ky.  

R.  Evid. 404(a)(2) (same); La. Code Evid. 404(A)(2)(b) (same); Md. Rule 5-404(a)(2)(C)  

(same); Mich. R. Evid. 404(a)(2) (same); Minn. R. Evid. 404(a)(2) (same); Neb. Rev. Stat.  

          27-404(1)(b) (same); N.H. R. Evid. 404(a) (same); N.J. R. Evid. 404(a)(2) (same);  


N.M. R. Evid. 11-404(A)(2)(c) (same); N.D. R. Evid. 404(a)(2)(C) (same); Ohio R. Evid.  


404(A)(2) (same); Okla. Stat. Ann. tit. 12,   2404(A)(2) (same); Or. Rev. Stat. Ann.    


40.170(2)(b) (same); Pa. R. Evid. 404(a)(2)(C) (same); R.I. R. Evid. 404(a)(2) (same); S.C.  

R. Evid. 404(a)(2)(C) (same); S.D. Codified Laws  19-19-404(a)(2)(C) (same);  Tenn. R.  

Evid. 404(a)(2) (same); Utah R. Evid. 404(a)(2)(C) (same); Vt. R. Evid. 404(a)(2) (same);  

Va. Sup. Ct. R. 2:404(a)(2)   (same); Wash. R. Evid. 404(a)(2) (same); W. Va. R. Evid.  


404(a)(2)(C) (same); Wis. Stat. Ann.    904.04(1)(b) (same); Wyo. R. Evid. 404(a)(2) (same);  


see  also  Conn.  Code  Evid.                        4-4(a)(2)  (permits  evidence  of   victim's   character  for  

peacefulness in  homicide and assault cases to rebut evidence that victim  was first aggressor);  

Ill. R. Evid. 404(a)(2) (permits evidence of  victim's character for peacefulness in homicide  

and  battery   cases  to  rebut  evidence  that   victim   was   first  aggressor);    Iowa  R.  Civ.  P.  

5.404(a)(2)(A)(iii) (permits evidence of  victim's character for peacefulness when victim  is  

unavailable  to  testify   "due  to  death  or  physical  or  mental  incapacity");  Mont.  R.  Evid.  

404(a)(2) (permits evidence of  victim's character for peacefulness in homicide and assault  

cases to rebut evidence that victim was first aggressor).  

      14   See Alaska R. Evid. 404(a)(2); see also Drew D. Dropkin & James H. McComas, On  

a Collision Course: Pure Propensity Evidence and Due Process in Alaska, 177 Alaska L.  


Rev. 183-84 (2001) (noting distinction between federal law and Alaska law).  

      15   Allen v. State , 945 P.2d 1233, 1239 (Alaska App. 1997).  We note that Komakhuk  


does not raise a constitutional challenge here. We also note that our decision in Allen did not  



                                                                    -  9 -                                                             2666

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


existence of a "judicial safeguard."                                   This judicial safeguard requires the trial judge to                                       

hold a separate hearing outside the presence of the jury to determine if an adequate                                                               


foundation for the proposed character evidence is met.                                                                                                           

                                                                                                              It also requires the judge to  


"actively weigh" the probative force of the proposed character evidence against its  



potential for unfair prejudice. 



                         We reiterated the importance of this judicial safeguard in Hunter v. State. 


In Hunter, the superior court allowed the State to introduce two law enforcement-related  



witnesses to testify to the defendant's character for aggression and violence. 


                         The  first  character  witness,  a  police  detective,  had  never  personally  


encountered the defendant, but as the lead investigator in his case, she learned that  


Hunter  possessed  "the  tendency  towards  violence  and  aggression"  through  her  



                                                                                                                                           We held that  

examination of police files and interviews with other police officers. 


admission of this character evidence was reversible error because the detective did not  



have sufficient personal knowledge of Hunter's reputation within the community. 

       15    (...continued)  

address the legislative history of Alaska Evidence Rule 404(a)(2), some of which suggests  


a legislative intent at odds with the plain language of the rule.  



            Id.  (emphasizing that the "legislature has specifically provided a judicial safeguard  

against abuse of character evidence").   

       17   Id. at 1238-39.  

       18    See id.      ;  see also       Alaska R. Evid. 404(a)(2)(ii).       

       19   Hunter v. State, 307 P.3d 8 (Alaska App. 2013).  

      20    Id. at 10.  

      21    Id. at 10-11.  

      22    Id.  at 15 ("The trustworthiness of reputation testimony stems from the fact that a                                                  


                                                                            -  10 -                                                                       2666

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

                       The second character witness in                          Hunter  was a police officer who testified                


that, in his opinion, the defendant had a character for aggression.                                                                             

                                                                                                                        This opinion was  



based on a single prior incident with the defendant.                                              The trial judge took a passive  


approach toward the admissibility of this evidence, concluding that, if the officer had,  


indeed, formed an opinion about Hunter's character based on this single episode, then  



the officer should be permitted to express that opinion.                                             According to the trial judge,  


"it was up to Hunter's attorney to cross-examine [the officer] if he wished to show that  



[the officer's] opinion was unsubstantiated or based on inadequate information." 


                       On   appeal,   this   Court   criticized   the   passivity   of   this   approach,  



characterizing  it  as  "an  abrogation  of  the  judge's  gate-keeping  function."                                                              We  


emphasized  that,  before  such  evidence  can  be  introduced,  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."                                                           We  


also explained that "character," in this context, means "a person's tendency to act [in a  

      22    (...continued)  

person is observed in his day[-]to[-]day activities by other members of the community[,] and  


these observations are discussed [within the community].") (alteration in original).  

      23   Id. at 16.  

      24   Id.  

      25   Id. at 16-17.  

      26   Id. at 17.  

      27   Id. ; see also United States v. Dotson, 799 F.2d 189, 193 (5th Cir. 1986) (reversing  


conviction and noting that"[t]he record should reflect some indication that the court did not  

merely let down the bars to the expression of any opinions the prosecutor's witnesses wanted  


to voice").  

      28    Hunter, 307 P.3d at 16.  

                                                                      -  11 -                                                                 2666

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


particular manner] in all the varying situations of life."                                          Lastly, we cautioned trial courts             

that a person's underlying character "must be distinguished" from a person's individual                                                   



                        In Hunter, we outlined several factors that the trial court should consider  


when determining whether an adequate foundation has been shown for the proposed  


character evidence. These factors include: (1) the nature of the relationship between the  


witness and the other person; (2) the length and recency of that relationship; and (3) the  



frequency and nature of their contacts.                                 Notably, all of these factors presuppose that the  


witness  has  more  than  a  passing  familiarity  with  the  person.                                                  We  stated  that  it  is  


"conceivable" that a single act might convincingly reveal a person's character, but we  


emphasized that this would only be true "if that short acquaintance were marked by  


striking occurrences or interactions which clearly demonstrate the character trait at  


      29    Id.  (alteration in original);  see also Government of Virgin Islands v. Petersen                                                      , 553  

F.2d  324,  329  (3rd  Cir.  1977)  (observation  of   defendant's  behavior  over  time   is   the  

recognized basis for both opinion and reputation testimony about character).  

      30    Hunter, 307 P.3d at 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."); see  

also State v. Irby, 368 N.W.2d 19, 23 (Minn. App. 1985) (affirming exclusion of character  


evidence when witness had formed an opinion of the victim's character based on only one  


short incident); State v. Maxwell, 18 P.3d 438, 445 (Or. App. 2001) (affirming exclusion of  

character  witness  where  witness  based  opinion  on  single  encounter  because  "[t]o  hold  

otherwise would mean that the distinction between character traits and individual misdeeds  

would be obliterated").  

      31    Hunter, 307 P.3d at 16.  

      32    Id.  

                                                                         -  12 -                                                                   2666

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

                                                       Although the trial judge in the current case was alerted to our decision in                                                                                                                                                                                 

Hunter, the judge did not address the factors outlined in that decision and made no                                                                                                                                                                                                                                                                  

 findings about the nature of                                                                                 the relationship between the defendant and the witnesses, the                                                                                                                                                                         

 length or recency of that relationship, or the frequency and nature of their contacts.                                                                                                                                                                                                                                                                              

 Instead, the trial judge primarily relied on popular social science for the proposition that                                                                                                                                                                                                                                                    

humans are inclined to form opinions on relatively limited data.                                                                                                                                                                                                     Like the trial judge in                                                            

Hunter, the judge seemed to believe that the jury should be allowed to hear any opinions                                                                                                                                                                                                                                     

that these witnesses may have formed about the defendant, and there was no need to                                                                                                                                                                                                                                                                      

 "actively weigh" the purported probative value of these character witnesses against their                                                                                                                                                                                                                                                    

potential for unfair prejudice.                                                

                                                       The need to "actively weigh" the probative value of this proposed evidence                                                                                                                                                                                           

 against the potential for unfair prejudice was particularly high in this case because both                                                                                                                                                                                                                                                   


 of the State's character witnesses had connections to                                                                                                                                                                               law enforcement.                                                                                      

                                                                                                                                                                                                                                                                                                                           We have  


previously cautioned against theuseoflawenforcement witnesses as character witnesses  


 against the defendant.  In Hammer v. State, we reversed a defendant's conviction based  


 on the State's use of the defendant's probation officer as a character witness against  



                              As we explained in Hammer, the fact that the defendant's probation officer was  


 a character witness "inherently created a substantial possibility of unfair prejudice"  

              33            We also note that the trial judge should have been attuned to this potential for unfair   

prejudice because the judge had properly bifurcated the proceedings precisely so the jury                                                                                                                                                                                                                             

would not learn about Komakhuk's criminal history.                                                                                                                                                                    See Ostlund v. State, 51 P.3d 938,  

 941-42 (Alaska App. 2002) (noting that the purpose of bifurcating a trial involving prior                                                                                                                                                                                                          

 convictions as an element of a charge is to prevent the jury from hearing evidence of the                                                                                                                                                                                                                                                          

 defendant's prior convictions before deciding whether he committed the current alleged act).  

              34           Hammer  v.  State,  2003  WL  21279539,  at  *2  (Alaska  App.  June  4,  2003)  


                                                                                                                                                                     -  13 -                                                                                                                                                               2666

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

because the jury was essentially informed that the defendant had a criminal history and                                                          

that he was on felony probation.                        35  


                       In Howard v. State, we affirmed a trial court's decision to allow a local  



                                                                                                                       But we predicated  

police sergeant to testify to the defendant's character for violence. 


our decision on the fact that the trial took place in a small village where an officer would  



have reason to be familiar with the defendant outside of his official police duties. 


noted  that  the  same  considerations  might  not  be  true  in  larger  cities  where  a  law  


enforcement officer would be less likely to be familiar with a defendant except through  



his capacity as a law enforcement officer.                                   We also specifically cautioned trial courts  


that our decision in Howard  "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  



                       Here, the State argues that any error in admitting the testimony of the two  


law-enforcement related character witnesses was harmless because Komakhuk's claim  


of self-defense was weak.  The State points out that Komakhuk never directly testified  


that he was afraid of Leal, nor did he clearly establish his right to use force under what  

      35   Id.  

      36    Howard v. State, 239 P.3d 426, 428 (Alaska App. 2010).  

      37   Id.  at 429-30 (noting that the small size of the community made it a "reasonable                                       

possibility" that the officer was acquainted with the defendant "because they were residents   

of   the  same   community"  and  not  "through  police  business,"  and  that  the  judge  took  

"affirmative steps" to minimize prejudice, such as precluding the witness from testifying   

about how he knew the defendant and the defendant's drug and alcohol use, as well as from  

using the term "violent").  

      38   Id. at 430.  

      39   Id. at 429.  

                                                                      -  14 -                                                                 2666

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

 appeared to be trespass circumstances.                                         The State also points out that neither party                                 

referred to the character witnesses in closing argument.                                

                          Thetestfordetermining                         whether an erroneous evidentiaryrulingconstitutes                           

harmless error is whether it can fairly be said that the error did not appreciably affect the                                                                    



jury's verdict.                 We acknowledge that here, the character testimony was relatively brief  


 and it was not emphasized during closing argument.  However, it nevertheless occupied  


 a central position in the State's case. Significantly, the State began its case-in-chief with  


Amanda Ivins, the Anchorage Safety Patrol Officer.  This means that the first evidence  


that the jury heard in this case was a State witness opining that the defendant was an  


 aggressive person.  The jury also heard this damning evidence before any evidence that  


the victim was the first aggressor was even introduced.  


                          As the United States Supreme Court has noted, the primary due process  


 concern with character evidence is that "it is said to weigh too much with the jury" and  


 "to so overpersuade them as to prejudge one with a bad general record and deny him a  



 fair opportunity to defend against a particular charge."                                                   Fundamentally, it is the role of  


the trial judge to ensure "that the defendant is tried for the crime currently charged - not  


 for the things that the defendant might have done on other occasions, and not for the kind  



 of person that the defendant might be."                                          Our review of the record in the current case  


 leads us to the conclusion that the trial court abrogated this responsibility.  Moreover,  


 given the centrality of the character evidence to the State's case-in-chief and the absence  


 of any other witness testimony to the incident, we conclude that we cannot fairly say that  


this evidence did not appreciably affect the jury's verdict.   Accordingly, reversal of  

       40    Love v. State , 457 P.2d 622, 634 (Alaska 1969).  

       41    Michelson v. United States , 335 U.S. 469, 475-76 (1948).  

       42    Bingaman v. State, 76 P.3d 398, 414 (Alaska App. 2003).  

                                                                              -  15 -                                                                        2666

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

Komakhuk's conviction and an opportunity for a retrial without the improper character  


witnesses is required.  




                    The judgment of the superior court is REVERSED.  


                                                            -  16 -                                                       2666

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

 Judge SMITH, concurring.                                     

                                                      I write separately to highlight my concern over the dangers associated with                                                                                                                                                                                                      

 admitting character evidence intended to show that a defendant is a violent person when                                                                                                                                                                                                                                           

 that evidence is predicated on a single interaction with the defendant.                                                                                                                                                                                                                     In light of the                               

 highly prejudicial nature of evidence demonstrating a propensity for violence, trial court                                                                                                                                                                                                                                         

judges should be particularly rigorous in inquiring into the circumstances surrounding                                                                                                                                                                                                                  

 the incident that forms the basis for such testimony and should rarely, if ever, admit it.                                                                                                                                                                                                                                                     

                                                      It is a commonplace that while propensity evidence is relevant, it is also                                                                                                                                                                                              

 inherently prejudicial,                                                                       since it can readily lead a jury to conclude that a defendant                                                                                                                                                    

 committed the act with which they are charged purely because they have a propensity for                                                                                                                                                                                                                                                     

 committing that kind of act.                                                                                    In particular, as relevant (and obvious) here, a juror could                                                                                                                                                     

 well decide that because of their violent character, the defendant was more likely to have                                                                                                                                                                                                                                           

 attacked the alleged victim.                                                     

                                                      Notwithstanding this danger, Alaska Evidence Rule 404(a)(2) allows the                                                                                                                                                                                                                

 State to introduce evidence of a defendant's violent character if the defendant raises a                                                                                                                                                                                                                                 


 claim of self-defense.                                                                                                                                                                                                                                                                                                                  

                                                                                             Recognizing the even greater danger posed by allowing the jury  


 to hear evidence of specific violent acts to support testimony that the defendant is a  

               1           As the Court points out, Alaska is unique in allowing the State to introduce such  


 evidence without the defendant first opening the door by attacking the victim's character or  


 presenting their own character witnesses.  Although the constitutionality of this choice was  

 upheld in Allen v. State , 945 P.2d 1233 (Alaska App. 1997), and with all due respect to the  


 Court, I do not believe that the Allen  Court sufficiently analyzed the substantial dangers  


 associated with allowing evidence of a character for violence simply because a defendant  


 claims self-defense.   Indeed, admitting this kind of evidence under these circumstances  


 effectivelyacts to punish a defendant who has a reasonable claim of self-defense, particularly  


 where  the  victim was  the  first  aggressor  and  the  inquiry should  be  focused  entirely on  

 whether the defendant's response meets the relevant standards for self-defense.  

                                                                                                                                                                 -  17 -                                                                                                                                                            2666

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

violent person, Alaska Evidence Rule 405 provides that such character testimony can                                                                                                                                 

only be in the form of opinion or reputation testimony - the witness may only testify   

as to either the defendant's reputation for violence or on their opinion that the defendant                                                                                                         

is a violent person.                            2  


                                  There is an obvious Catch-22 associated with allowing a witness to opine  


as to whether a person is violent.  Since the opinion must be based on the witness's  


personal experience with the defendant, the only basis the witness has for coming to that  


opinion is the actual conduct of the defendant - the witness believes that the defendant  


is a violent person because the defendant has acted violently.   Therefore, if defense  


counsel is to challenge the basis of the witness's opinion at trial, they will have to inquire  


into what led the witness to come to that opinion, which necessarily will require the  


witness to recount the violent acts they observed, thereby bringing to the jury's attention  



the very prior bad acts that Evidence Rule 405 so properly precludes.                                                                                                                    A lawyer thus  


faces the proverbial Hobson's choice: faced with defending against a witness's opinion  


that their client is a violent person, they must either let it pass or accept that if they want  


to challenge the opinion as unsubstantiated, the jury will hear about all of the bad things  


their client allegedly did.  


                                  This concern is magnified if, as here, the evidence is based on one prior  


incident.  It is much more difficult to credit an opinion if it is based on one data point,  


which means that it is correspondingly more important to attack that opinion on the  

         2       Alaska Evid. R. 405(a) ("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 opinion.").  



                 Id.   (allowing  inquiry  into  "relevant  specific  instances  of  conduct"  on  cross- 

examination only).  

                                                                                                       -  18 -                                                                                                  2666

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

ground that it is based on very little interaction with the defendant.  But pointing out to  


the jury that the opinion is based on only one incident necessarily opens the door to  


testimony about that one incident, and if that incident is significant enough to survive the  


Hunter analysis, then testimony about that incident could very well be disastrous for the  



                     As this Court emphasized in its opinion in this case, the gatekeeper role of  


a trial court is particularly important given the intrinsic dangers with allowing witnesses  


to testify that a defendant is a violent person.  The factors set forth in Hunter are very  


valuable in assuring that this role is followed.   But they do not adequately address  


testimony  based  on  a  single  incident,  since  they  focus  entirely  on  the  relationship  


between the witness and the defendant; if there has only been one contact between the  


defendant and the witness, then it is highly unlikely that the witness knows the defendant  


very well, if at all.  This in turn complicates the trial judge's task, since the Court was  


careful in Hunter not to preclude testimony based on a single incident, yet provided little  


guidance other than to require judges to conduct the necessary foundational analysis.  


                     This  hole  can  be  filled  in  substantial  part  by  looking  in  detail  at  the  


circumstances surrounding the incident on which the witness testifies.  This is because  


while an incident might be so striking as to lead one to infer that a person is a dangerous  


person, the underlying circumstances might not support that conclusion - or at least  


might sufficiently call it into question so that it would not be appropriate to allow the  


witness's testimony.  


                     For  example,  one  could  reasonably  conclude  that  a  dog  is  dangerous  


because it attacked a pedestrian hiking with a frame backpack without any apparent  


provocation.  But if it turned out (as was the case with my family dog) that an otherwise  


entirely peaceful, friendly dog for some reason was triggered by a person wearing a  


frame backpack, then it would not be appropriate to allow a person who witnessed the  


                                                              -  19 -                                                        2666

----------------------- Page 20-----------------------

attack to testify in a dog-bite case that the dog was a violent dog.  Rather, at most, they  


could say that the dog reacted violently in one very specific situation, which would have  


no bearing on the case unless the victim was wearing a backpack.  


                     The same can  obviously  be true in  assault cases.                               One  could perhaps  


conclude that a person is dangerous because they punched the first baseman after being  


thrown out or because they yelled at their spouse and violently pushed them away for no  


apparent reason.  But it could well be that the person who was thrown out had never  


gotten a hit in their lives, leading to a frustrated punch by an otherwise peaceful person,  


or that the person had just learned that their spouse was sleeping with their best friend.  


In both cases, what may well have been a very striking event, in fact, would not support  


a conclusion that the person who committed the act is a violent person.  


                     The witnesses in this case had very little direct interaction with Komakhuk.  


It may well be arguable that the single incidents on which they based their opinion were  


memorable. But there is no indication in the record as to the circumstances under which  


Komakhuk was awoken at the sleep-off center, much less why he may have reacted the  


way he did upon being awoken.  Aside from the fact that he was drunk, the same is true  


with  respect to  Komakhuk's behavior  when  he was arrested.                                        These are important  


considerations, for there may be meaningful circumstances underlying his reactions,  


other than his intoxication, that have no bearing on the assault against Leal with which  


Komakhuk was charged.  For example, there may be reasons why Komakhuk reacts  


inappropriately when he is awoken, particularly if he is hungover and tired, that were not  


present during the altercation with the victim in this case.  Similarly, the record is not  


clear as to why Komakhuk became angry and assaultive during his arrest, much less  


whether the same sort of triggers might apply in this case.  


                     My point, in short, is that there are potentially a myriad of circumstances  


underlying what is apparently a striking incident of violent behavior that may belie a  


                                                              - 20 -                                                         2666

----------------------- Page 21-----------------------

conclusion that a person is violent, or at the very least call into question whether the  


opinion is adequately based in light of the specific circumstances of the offense with  


which the person is charged.  Given the significant danger that the jury will place undue  


weight on a defendant described as being "violent" by a witness (particularly a law  


enforcement witness), the gate-keeping function of a trial judge demands heightened  


vigilance in assessing the context in which a lone encounter forms the basis of the  


witness's opinion. If trial judges engage in such a careful examination, and then balance  


the probative versus prejudicial impact under Evidence Rule 403, I believe they should  


(and will) rarely, if ever, allow a witness to testify to a defendant's violent character  


based on a single incident.  


                                                              - 21 -                                                         2666

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