Opinion
Court of Appeals No. A-8833.
July 25, 2007.
Appeal from the Superior Court, Third Judicial District, Anchorage, Dan A. Hensley, Judge, Trial Court No. 3AN-02-2562 CR.
Sharon Barr, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Michael D. Bailey's marriage to Susan Bailey was marked by Bailey's years-long infliction of domestic violence on his wife. Susan Bailey died following a severe beating in June of 1999. The grand jury indicted Bailey in April 2002, charging him with alternative theories of homicide and four counts of tampering with physical evidence.
The trial jury convicted Bailey of second-degree murder and all counts of tampering with physical evidence. Superior Court Judge Dan A. Hensley imposed a composite 91-year term to serve.
AS 11.41.110(a)(1) and/or (2), and AS 11.56.610(a)(1), (2), and/or (4).
Bailey argues that his indictment should have been dismissed because improper hearsay evidence was admitted at grand jury. Bailey contends that several evidentiary rulings by the superior court warrant a new trial. Bailey claims that several of the superior court's findings at sentencing were flawed. Finally, Bailey argues that his sentence was excessive. We reject these claims for the reasons expressed below and affirm Bailey's convictions and sentence.
Background facts and proceedings
The Baileys were married in Fairbanks in 1989. They lived in Anchorage with Susan's parents, Mary Lou and George Hollett, from August 1989 to June 1996. They had three children. In 1996, the Baileys moved out of the Holletts' home and into their own apartment. From December 1989 until her death, Susan worked at the State Department of Natural Resources.
The State presented evidence at grand jury and offered evidence at trial that showed that Bailey abused his wife. The Holletts testified to Susan's injuries, statements she made identifying Bailey as her assailant, and her frequent manifestations of fear of her husband. Several of Susan's co-workers testified that they frequently observed Susan with injuries. Medical records of Susan's visit to a hospital emergency room were introduced showing that Susan had bruises and a broken nose and ribs. The records also showed that Susan identified her husband as her assailant.
In June of 1999, Susan failed to show up at work. Her supervisor reported her absence because she had not called in and because a security guard in the building where they worked found some of her belongings in the parking garage.
The police contacted Bailey and he consented to a search of his residence. There were holes and indentations in the walls, and blood and hair belonging to Susan were found in and around these areas of damage, and elsewhere in the residence, including a large blood stain on the sharp edge of a countertop in the kitchen.
On July 5, 1999, Susan's body was discovered near Kincaid Park in Anchorage. The medical examiner determined the cause of death as blunt force injury to the head. Bailey was not arrested until April 2002.
The grand jury indicted Bailey on one count of first-degree murder, one count of second-degree murder, one count of manslaughter, one count of criminally negligent homicide, and four counts of tampering with physical evidence. At trial, Bailey was convicted of second-degree murder and all four counts of tampering with physical evidence. Bailey appeals.
Discussion The grand jury issues
Bailey argues that Judge Hensley erred in denying his motion to dismiss the indictment. Bailey contends that certain evidence was inadmissible before the grand jury, that the prosecutor omitted a necessary instruction to the grand jury, and that the admissible evidence before the grand jury was insufficient to support the indictment.
Judge Hensley addressed Bailey's attack on the indictment twice during on-the-record oral rulings. When he first addressed the issue, Judge Hensley concluded that the grand jury had heard inadmissible evidence and applied the two-part analysis from Stern v. State. Under that analysis, when a defendant demonstrates that the grand jury has heard improper evidence, the court must redact the improper evidence from the record before the grand jury and decide whether the remaining evidence is legally sufficient to support the indictment. If the quantum of evidence remaining is sufficient, the court must next decide whether "the probative force of [the] admissible evidence was so weak and the unfair prejudice engendered by the improper evidence was so strong that it appears likely that the improper evidence was the decisive factor in the grand jury's decision to indict."
827 P.2d 442 (Alaska App. 1992).
Id. at 445-46.
Id. at 446.
Judge Hensley decided that the grand jury had heard "several pieces of clearly inadmissible hearsay," and then mentioned testimony from Mr. Hollett that Bailey was not able to keep a job. Judge Hensley declined to provide a "line-by-line ruling" discussing the inadmissible evidence at that time, promising instead to provide one later.
Judge Hensley rejected Bailey's challenge to several areas of evidence that he ruled was admissible: "[A]t least part of the evidence of the 1990 Service High [incident], 1992 knife incident, 1995 knife incident, 1997 neighbor hearing the noises [incident], and then Mr. Bailey telling the neighbor that he needed to keep Ms. Bailey in line are admissible under Evidence Rule 404(b)." He also found that "co-workers' observations of a regular pattern of injuries on Ms. Bailey that were unusual [were] admissible."
Finally, Judge Hensley ruled that "after subtracting the inadmissible evidence,. . . there was sufficient other admissible evidence for the grand jury to return the indictment." He further found that "the inadmissible evidence wasn't so unfairly prejudicial as to inflame the grand jury or otherwise unfairly influence their decision to indict." Judge Hensley denied Bailey's motion to dismiss the indictment.
Judge Hensley again addressed the grand jury issue after the parties litigated motions in limine seeking trial rulings on the admissibility of much of the same evidence Bailey attacked as inadmissible before the grand jury. Over a year after Bailey's indictment was returned but before the superior court ruled on the motions in limine, this court issued a decision in Bingaman v. State. Bingaman established the analysis for trial courts to use when considering the admissibility of evidence of other crimes of domestic violence offered under Alaska Evidence Rule 404(b)(4). Judge Hensley concluded his rulings on the admissibility of evidence at trial with the following additional ruling regarding the grand jury issue:
76 P.3d 398 (Alaska App. 2003).
Id. at 415-16.
Most of the evidence, the 404(b) evidence. . . offered by the state in its offer of proof regarding what it wanted to put on at trial was introduced at the grand jury. Although I've limited the evidence for use at trial, I don't find that it was unfair or inappropriate for it to be used at the grand jury. All of it was technically admissible, as I've explained in this ruling. Even if subtracted or removed from the presentation to the grand jury, the State had ample other evidence, strong evidence, for the. . . grand jury to make the finding of probable cause that Mr. Bailey was guilty of the crimes charged.
Judge Hensley apparently overlooked the line-by-line analysis of inadmissible evidence that he promised when he first addressed the grand jury motion. But Bailey did not press the court for a ruling identifying the additional inadmissible evidence that Judge Hensley referenced when he first addressed the issue.
We now address the arguments Bailey raises on appeal regarding the grand jury evidence.
Bailey challenges Mary Lou Hollett's grand jury testimony regarding an incident in November 1989 in which Mrs. Hollett took Susan to the emergency room. Mrs. Hollett testified that Susan called her at home and asked her to come pick her up at the Carrs grocery store on Gambell Street in Anchorage. Mrs. Hollett testified that Susan "had been severely beaten. Her face was black and blue." Mrs. Hollett and Susan later went to the emergency room at Providence Hospital. Mrs. Hollett testified that Susan had bruises on her face and all over her body, that her nose was broken, and that she had been kicked in the stomach. Mrs. Hollett also learned at that time that Susan was pregnant. Mrs. Hollett testified that hospital staff encouraged Susan to file charges (against Bailey), and the police were brought in, but Susan did not want to file charges, and Mrs. Hollett took her home.
Bailey argues that "based on the Bingaman factors, Rule 403, and the fact that Hollett testified to inadmissible hearsay statements by Susan Bailey, evidence concerning this incident should not have been admitted." His argument fails for two reasons. First, Bingaman requires a trial judge admitting evidence at trial under Rule 404(b)(4) to perform an on-the-record analysis applying the factors listed in the opinion. Primarily, the judge must conclude that the evidence is relevant under Evidence Rule 402 and weigh the probative value of the evidence against its prejudicial impact under Evidence Rule 403. The challenged evidence of the November 1989 incident was admitted before the grand jury, not at trial, and Bailey admits that the evidence was relevant to prove Bailey's propensity to assault Susan.
Id. at 416.
Id.
Second, Bailey does not point to a specific ruling by Judge Hensley that Mrs. Hollett's testimony at grand jury about the November 1989 assault and hospital treatment was inadmissible at grand jury. Because Bailey did not obtain an express ruling on this issue, the issue is waived.
See Taylor v. Johnston, 985 P.2d 460, 467 (Alaska 1999); Russell v. State, 934 P.2d 1335, 1340-41 (Alaska App. 1997); Marino v. State, 934 P.2d 1321, 1327 (Alaska App. 1997); Erickson v. State, 824 P.2d 725, 733 (Alaska App. 1991); Jonas v. State, 773 P.2d 960, 963 (Alaska App. 1989).
Next, Bailey challenges the grand jury testimony of George Hollett and Julia Christian regarding an incident in February or March of 1990. In February or March of 1990, George and Mary Lou Hollett took Susan over to the house of Julia Christian, a longtime family friend. Both Mr. Hollett and Christian testified that Susan had bruises. Mr. Hollett testified that Susan was upset, and that she had told him that "Michael had been bending her legs and spreading her legs apart, and roughing her up," and that Michael had accused her of seeing somebody else after finding out Susan was pregnant. When asked why she thought the Holletts brought Susan over to her house, Christian said she thought "it was a safety issue," because Christian herself was a victim of domestic violence and was "trained as a clinician in domestic violence." Christian testified that Susan kept calling Bailey, so later that night, Christian took Susan to be picked up by her father.
Bailey states that Judge Hensley ruled that "all of Susan Bailey's statements to George Hollett and Julia Christian were inadmissible hearsay," and that without these statements, all the testimonial evidence about this incident was irrelevant and more prejudicial than probative, and thus inadmissible under Bingaman.
First, Judge Hensley did not rule that Susan's statements to Mr. Hollett and Christian were inadmissible at the grand jury on hearsay grounds, and Bailey's one sentence on this topic is insufficient to argue that it should have been ruled inadmissible on these grounds, especially since he did not request a specific ruling on this piece of evidence. Furthermore, Bailey acknowledges that this evidence is relevant to prove Bailey's propensity to assault Susan. Bailey argues that Christian's testimony that she thought the Holletts brought Susan over for "safety" reasons was inadmissible because it was "speculation," and that her testimony that she was herself a victim of domestic violence and a domestic violence counselor was irrelevant. Bailey did not argue in his motion to dismiss the indictment before the trial court that these (or any) statements by Christian were inadmissible. Thus, this issue need not be considered by this Court in this appeal.
Lewis v. State, 469 P.2d 689, 691-92 (Alaska 1970); Sheridan v. Anchorage, 100 P.3d 898, 900-01 (Alaska App. 2004); Petersen v. State, 930 P.2d 414, 424 (Alaska App. 1996) (citing Petersen v. Mutual Life Ins. Co. of New York, 803 P.2d 406, 410 (Alaska 1990)) ("[W]here a point is not given more than a cursory statement in the argument portion of a brief, the point will not be considered on appeal.").
Jonas, 773 P.2d at 963 ("An alleged error occurring during the trial of a case must be raised by a party and ruled upon by the trial court before this court will consider it on appeal.").
Bailey next objects to evidence about an incident in 1992 in which the evidence shows that Bailey cut Susan with a knife. Mary Lou Hollett testified that one evening in 1992, when she was in bed, Susan (who, along with Bailey, was living with the Holletts) came upstairs and "said she had been cut," and showed her mother a cut on her midsection, just below her ribs. After she helped Susan stop the bleeding, Mrs. Hollett went downstairs and "asked [Bailey] what was going on or why he did it." Mrs. Hollett said that Bailey "didn't really have much to say" but told her that they were arguing because he wanted to take their daughter to Kenai, and Susan did not want him to.
Bailey notes (without citing the transcript) that Judge Hensley ruled that Bailey "admitted" to cutting Susan with a knife. But he argues that because this admission was unclear, the evidence of this incident should be excluded because "the government's evidence that he actually cut Susan was weak and based on speculation." However, we conclude that it would be reasonable for the grand jury to infer from Mrs. Hollett's testimony that Bailey had been the one to cut Susan in this instance. Such an inference is not impermissible "speculation" as Bailey charges.
Bailey also argues that evidence of an incident in 1995 in which Bailey cut Susan with a knife should have been ruled inadmissible before the grand jury. George Hollett testified that in 1995, when Susan and Bailey were living with the Holletts, Susan ran upstairs, shortly after midnight, screamed "Dad, Dad," and said that Bailey was trying to kill her. Susan then showed him where Bailey had cut her stomach with a penknife. Mr. Hollett told Susan to stay upstairs and he went downstairs to talk to Bailey, who demanded that Mr. Hollett let Susan go because "Susan was his wife and he could do anything he wanted." Bailey continued to behave violently, even throwing a jack he found in the Hollett's garage through his car window. Mr. Hollett eventually convinced Bailey to get in his car and leave.
It is not clear from the brief exactly which testimony Bailey challenges. Bailey apparently argues that a portion of Mr. Hollett's testimony (that the 1995 knife incident was "not the first time that [Susan] had told [him] that" Bailey was going to kill her) was hearsay and thus inadmissible. This is the only specific piece of testimony he refers to in this section of his brief, although he does not provide a citation for this statement. He does not further identify which testimony he challenges, referring only to "these statements" and "this testimony." He states that "[t]here was no foundation for these statements," "this testimony was not relevant," and "given the utter lack of foundation for these statements, they were more prejudicial than probative and thus inadmissible." But the State presented a case that Bailey inflicted domestic abuse on Susan for years leading up to the homicide. Mr. Hollett's testimony apparently summarized Susan's many excited utterances over the years. We see no reason to find his testimony inadmissible.
Bailey next challenges the admissibility of testimony given by Jennifer Martin, who lived downstairs from the Baileys, regarding noises she heard coming from the Baileys' apartment. Martin lived downstairs from the Baileys for about five months. She testified that she never heard any yelling coming from their apartment, but that she did hear "banging and what sounded like running through the house" from around 12:30 or 1:00 in the morning, when she got home from work, until 3:00 or 4:00 in the morning.
Bailey argues that this evidence was irrelevant and thus inadmissible before the grand jury under Evidence Rules 401 and 402. He states that a factfinder "would have to guess that these sounds came from Michael Bailey assaulting Susan." He also argues that the probative value of this evidence is limited and thus is also inadmissible under Rule 403.
Even if this argument was preserved, it has no merit. The grand jurors could reasonably infer that noises coming from the Baileys' apartment had something to do with Bailey assaulting Susan.
The State also points out that Bailey forfeited his right to challenge the presentation of this testimony to the grand jury by failing to object to its admission below. Alaska Criminal Rule 12(b) requires a defendant to include in a pretrial motion all claims based on a defect in the indictment (other than a failure to show jurisdiction or failure to charge an offense). And under Rule 12(e), the failure to present a pretrial claim "constitute[s] waiver thereof." In Bailey's motion to dismiss the indictment below, Bailey does not mention the testimony of Jennifer Martin, much less argue that it should have been considered inadmissible before the grand jury. By failing to assert this argument in the trial court, Bailey has waived it.
Id.
Bailey next argues that "[a]ll of the co-worker testimony" is inadmissible because it is irrelevant and more prejudicial than probative. However, the only testimony he identifies or analyzes in the argument section of his brief was that given by William Davis and Deborah Denny. Thus, these are the only claims he has adequately raised, and the only ones we must address. (Bailey argues in his reply brief that he only discussed the testimony of these two persons because Judge Hensley had ruled the other co-worker testimony inadmissible. However, Judge Hensley specifically ruled that although he limited that evidence for use at trial, it was not improperly before the grand jury.)
William Davis worked with Susan Bailey for about eight years, between about 1991 and 1999. He testified that on several occasions, Susan had returned to work from an extended absence with injuries, such as clumps of hair missing, such that "you could tell she had been battered and abused." He testified that not long before she disappeared, Susan came to work with injuries on her hands and a bandage on her nose or forehead. He also said that she always seemed to have an excuse for her injuries.
Deborah Denny was a co-worker of Susan's for eight or nine years. Over the years working with Susan, Denny noticed Susan having a variety of injuries, including bruises, black eyes, injuries to her mouth, an injury to her jaw, cuts on her hands, arms, and neck, and an injury to her head that included missing hair. Denny testified that Susan "had a story for every time [Denny] asked" Susan about the injuries. Denny said she did not think these injuries were caused by accidents because Susan was not accident-prone around the office.
Bailey argues that "[a]ll of the co-worker testimony" is inadmissible because it is irrelevant and prejudicial. He argues that the testimony was not tied to a specific date and time, and that it was "mere speculation" to tie these injuries to Bailey. He does not cite any legal authority in support of his arguments. The jury could reasonably infer that continuous injuries observed on Susan were a result of a pattern of domestic violence, regardless of the lack of specificity of date and time. Thus, this evidence was properly admitted before the grand jury.
Bailey also challenges the admissibility of various "other comments" made by witnesses testifying before the grand jury. In this section of Bailey's brief, he writes:
The state also presented the following testimony to the grand jury: (1) Susan went to the AWAIC shelter three times over the years and refused to report assaults to the police every time; (2) Susan always wore turtlenecks and long-sleeved shirts; (3) Michael Bailey was controlling of Susan and that he needed to know where she was, and controlled who she was friendly with; and (4) Michael Bailey drank and maybe did drugs.
Bailey does not identify which witnesses made these statements or where in the transcript they can be found. In addition, his arguments in support of a ruling of inadmissibility are conclusory and provide no real analysis or legal citations. He states that "[a]ll of this testimony is irrelevant bad character evidence" and that "[b]ecause this evidence was all speculative,. . . [and] lacked foundation because it was not tied to any specific date or event[, it] was therefore irrelevant." He does not specifically analyze testimony or offer any citations to the transcript. Thus, we reject these arguments.
Lewis, 469 P.2d at 691-92; Sheridan, 100 P.3d at 900-01; Petersen, 930 P.2d at 424.
Bailey next argues that the presentation before the grand jury of medical records which reported Susan's identification of Bailey as her assailant (in the November Lewis, 469 P.2d at 691-92; Sheridan, 100 P.3d at 900-01; Petersen, 930 P.2d at 424. 1989 incident) was error. Bailey points out that in Johnson v. State, the Alaska Supreme Court held that hearsay statements as to fault are not covered by the exception for medical diagnosis and treatment: "Since statements fixing fault and indicating the identity of an assailant are not relevant to medical diagnosis or treatment, they lack assurances of reliability and should be excluded."
579 P.2d 20 (Alaska 1978).
Id. at 22. See also Williams v. Util. Equip., Inc., 837 P.2d 1112, 1115-16 (Alaska 1992).
The State points out that in some circumstances, courts have allowed statements of identity or fault to be admitted under the hearsay exception when the statements are relevant to the medical diagnosis or treatment of the patient. See the cases cited in State v. Nollner.
749 P.2d 905, 908 n. 3 (Alaska App. 1988).
But even assuming that Johnson establishes an inflexible rule of exclusion, any error was harmless in this case. Testimony from George and Mary Lou Hollett provided strong circumstantial evidence that Bailey was the assailant in the November 1989 assault and direct evidence of the injuries Susan suffered. Redacting the medical records testimony that identified Bailey as the assailant still leaves substantial evidence supporting the indictment. And the medical records evidence was very unlikely to have been a decisive factor in the grand jury's decision to indict.
See Stern, 827 P.2d at 446.
Bailey next contends that the prosecutor should have provided the grand jury with a jury instruction that Bingaman directs trial judges to give when admitting domestic violence evidence under Evidence Rule 404(b)(4). The instruction reminds the jury that evidence of other acts by the defendant, standing alone, are not sufficient to justify a conviction.
See Bingaman, 76 P.3d at 416-17.
But Bingaman was decided over a year after the indictment was returned in this case. And in Douglas v. State, we held that a Bingaman instruction for a trial jury is mandatory only if the defendant requests the instruction or when the amount and nature of other-crimes evidence introduced against a defendant is so extensive that the failure to give the instruction would amount to plain error.
151 P.3d 495 (Alaska App. 2006).
Id. at 503.
A primary function of the grand jury is to authorize the prosecution of a defendant when the State establishes the probability of the defendant's guilt. But the grand jury is not a mini-trial. Instead, it is a proceeding to ensure the reliable determination of the probability of a defendant's guilt before he is subjected to prosecution for a felony offense. A defendant is adequately protected by his ability to challenge the indictment for sufficiency of the evidence. We reject Bailey's argument that a Bingaman instruction was required at grand jury.
See Sheldon v. State, 796 P.2d 831, 836-37 (Alaska App. 1990).
See State v. Geiffels, 554 P.2d 460, 465 (Alaska 1976).
Lastly, we reject Bailey's claim that there was insufficient evidence supporting the indictment when the inadmissible evidence is redacted. There was sufficient evidence presented to the grand jury to support the indictment. Christopher Rutz, Susan's supervisor at the Department of Natural Resources, reported her missing. Rutz testified that Susan left him a message saying that she would not be at work on Wednesday, June 23, 1999, but she did not come to work on June 24 or 25. Rutz testified that the fact that Susan did not call Rutz to notify him that she would be absent on the later days was unusual.
Dixie Boggess, a security guard where Susan worked, testified that at 5:00 a.m. on June 25, he saw a white 1979 Oldsmobile (the Baileys owned such a car) drive up the ramp of the parking garage, then drive back down "really fast" shortly thereafter. Boggess could not tell who was driving or whether there were other people in the car. He went up the ramp to where the car had come from, and found several items lying in a parking space — a tennis shoe, a pair of glasses, and a fanny pack containing something with Susan Bailey's name on it. He turned the items in to the security desk.
Rutz testified that there was no reason for Susan to be at work at 5:00 a.m. When Susan still did not come to work on Monday, June 28, Rutz listened to her voice mail messages, and heard messages Bailey had left for Susan in which he said he was looking for her. Rutz called Bailey and asked for Susan, and Bailey said that Susan was not there but that he was looking for her. Rutz also heard a message from a security guard, informing Susan that they had found some of her belongings (the items found by Boggess). Rutz decided to call the police.
Detective Robert Glen testified about the police investigation. The day after Rutz reported Susan missing, Detective Rick Shell and Sergeant Kenneth Spadafora contacted Bailey. Bailey told Detective Shell that he had called the police on Saturday the 26th, but had been told that he needed to contact hospitals, jails, and friends before a report would be filed. The police department had no record that Bailey had called to report his wife missing.
Bailey consented to a search of his home. Around the apartment, there were numerous holes and other damage to the walls. Captain William Gifford, an expert in crime scene reconstruction who was present during the search of Bailey's apartment, also testified about blood, which DNA testing could not exclude as belonging to Susan, that was on the walls in a number of locations throughout the apartment. Bailey said that the holes in the walls were caused by his punching and kicking the walls, and by moving furniture.
In the downstairs living area of the apartment, Sergeant Spadafora found a tightly tied white plastic bag. Bailey told him it was a camping pillow that had gotten wet on a camping trip a month ago. When Sergeant Spadafora opened the bag, he smelled fresh laundry detergent, not mildew as one might expect in a wet garment inside a bag for a month. The item inside was a pillow, and Spadafora noticed a blood stain on one side of it, and a reddish-brown substance in the bottom of the bag. Later, Bailey told Detective Shell that he washed the pillow when he panicked after Susan turned up missing. Captain Gifford also found a bag of wet, recently washed clothes, including a pair of cut-off sweat pants with a wide elastic waistband.
Captain Gifford also found a large blood stain on the carpet. He thought this stain had been caused by a blood source that had remained on the carpet for a period of time, allowing the blood to soak into the carpet. There was also evidence that someone had tried to clean up the stain. Susan could not be excluded as the source of that blood.
In the kitchen, Captain Gifford found evidence that an "active blood source [had been] present against the counter." The blood flow started just below the sharp edge of the counter top. Susan could not be excluded as the source of the blood on the counter.
Susan's body was found on July 5 in Kincaid Park. A white bra was found hanging in a tree near the body. A clean pair of jeans and a clean shirt were also found folded and neatly placed near the body. None of the clothing appeared to Captain Gifford to have been forcibly removed. Captain Gifford believed that the scene had been "staged" and that the bra was left on the tree so somebody would notice the body.
Rigor mortis indicated that Susan had died in a different position than how the body was found. In addition, the settling of blood in her body indicated that when she died, she was wearing an item with a wide waistband. The clothing found at the scene was not consistent with this evidence, and Gifford believed she had been wearing something different when she died.
The medical examiner, Dr. Franc Fallico, testified that Susan's death was caused by blunt force injury to her head. Susan had suffered a very severe laceration on her head and her nose bones were broken. Captain Gifford testified that the laceration was likely caused by her head striking the counter top directly above where the blood flow evidence was found.
Dr. Fallico also found bruises on Susan's chest, abdomen, back, and upper extremities, fractures to her ribs and left wrist, and swelling of her brain. Dr. Fallico testified that the lividity of Susan's body was not characteristic of the place and position her body was found in, indicating that she had been moved after she died.
Bailey denied assaulting Susan. He told police that the holes in the sheetrock in his apartment were there when they moved in. He told police that the blood in the house came from a cut he had, and from a package of meat that was leaking juice.
Viewing this evidence and the reasonable inferences from the evidence in the light most favorable to the indictment, there was sufficient evidence to sustain the indictment after subtracting the evidence identified as inadmissible. Furthermore, we conclude that the inadmissible evidence would not be the decisive factor in the grand jury's decision to indict. The superior court's evidentiary rulings
York v. State, 757 P.2d 68, 72 (Alaska App. 1988).
Bailey challenges the superior court's evidentiary rulings at trial. As indicated above, Judge Hensley addressed the parties' pretrial arguments on the admissibility of evidence for trial while still considering Bailey's attack on the use of substantially the same evidence before the grand jury. Judge Hensley barred a substantial amount of evidence the State sought to introduce at trial, relying primarily on the analysis identified in Bingaman. The court's rulings were based on the State's written offer of proof and testimony presented at an evidentiary hearing.
The parties apparently did not litigate whether this evidence was admissible under Russell v. State, 934 P.2d 1335 (Alaska App. 1997).
Bailey's arguments rely on Bingaman. Bingaman clarified that evidence offered under Rule 404(b)(4) is still subject to Rule 402, barring the admission of irrelevant evidence, and Rule 403, authorizing a trial judge to exclude evidence if its probative value is outweighed by its potential for unfair prejudice, confusion of the issues, or misleading of the jury. This court set forth a list of factors which a trial judge must consider when deciding whether evidence of a defendant's previous acts may properly be admitted under Rule 404(b)(4).
Bingaman, 76 P.3d at 401.
Id. at 415-16.
First, while determining the relevance of the evidence of prior conduct under Rule 402, the court must consider: (1) the strength of the government's evidence that the defendant engaged in the prior conduct; (2) the character trait the other conduct tends to prove; and (3) the relevance of this character trait to material issues in the case and the strength of the evidence proving the trait (including the recency or remoteness of the prior conduct). Next, if the trial court determines that the character evidence is relevant to a material issue, it must then determine whether the evidence should be excluded under Rule 403, using the following factors: (1) the extent to which the material issue is disputed and the existence of other, less prejudicial evidence to prove it — i.e., the government's need to offer evidence of the prior conduct; (2) the amount of time it will take to litigate the other conduct; and (3) the likelihood that evidence of other conduct will result in a verdict based on improper grounds or distract the jury from the main issues.
Id. at 415.
Id. at 415-16.
First, Bailey contends that the evidence of the November 1989 incident should not have been admitted. He challenges statements made by Susan to her mother and to the emergency room personnel on hearsay grounds and challenges the admissibility of all testimony about this incident on Bingaman grounds.
Mrs. Hollett testified about the incident in November 1989 at the evidentiary hearing. She also testified about this incident at trial. On November 30, 1989, she received a phone call from Susan, asking to be picked up at the Carrs grocery store on Gambell Street. Mrs. Hollett says Susan sounded "serious" and "urgent." When Mrs. Hollett arrived at Carrs, she saw Susan sitting on the floor in the entranceway to the store, "kind of huddled in a corner." Mrs. Hollett testified that Susan's face was bruised, she had black eyes, her nose was puffy, and that she was having difficulty walking. In the car on the way home, Susan "seemed very stressed out" and wanted to leave the area and get home as soon as possible. Susan told Mrs. Hollett that she wanted to leave the area because Bailey had beat her, and she was afraid he might come and find her. Susan said the incident had happened at a motel, and that once Bailey fell asleep, she left immediately and called from the Carrs store.
After remaining at home for a short time, Mrs. Hollett took Susan to the Providence Hospital emergency room. Dr. John Hanley, an emergency room physician who saw Susan that day, testified from the medical records that Susan had a broken nose, bruising around both eyes, a laceration on her back, and injuries to her genital area. Dr. Hanley also discovered that Susan was six weeks pregnant. Dr. Hanley read from the medical records of Susan's visit, including recounting a conversation Susan had with a nurse during which she identified Bailey as her assailant.
Mr. Hollett came home after Susan had returned from the hospital. He testified that Susan's face was swollen, she had black eyes and bruising around her nose, and she was moving slowly and seemed like she was "hurting elsewhere." Mr. Hollett testified that he and his wife urged Susan to press charges against Bailey, but she did not want to, and the Holletts adhered to her wishes. When Bailey returned to the house (more than two weeks later), Mr. Hollett spoke with him about the incident in November. Mr. Hollett asked Bailey why he had hurt Susan. Mr. Hollett testified that Bailey said he and Susan had "had a little argument" and that he had "got[ten] carried away."
Judge Hensley gave a detailed ruling on the admissibility of the evidence of the November 1989 incident. Applying the Bingaman factors, he ruled that all the evidence of the 1989 incident was admissible under Rules 403 and 404. He found that this evidence, along with the other evidence of prior bad acts, demonstrated a "situationally similar" pattern of domestic violence between Bailey and Susan. Since this incident involved a severe beating, he found it particularly relevant to the conduct in this case and thus that it was strong propensity evidence. He found that the evidence would not take significant time to litigate and that, because the State was attempting to establish a longstanding pattern of domestic violence, the fact that it occurred ten years before did not make the incident unacceptably remote. Finally, he found that the issue in question — Bailey's propensity to commit violence on his wife, and thus whether he committed the crime with which he was charged — was seriously disputed.
However, Judge Hensley excluded some evidence on hearsay grounds. Applying the "excited utterance" exception to the hearsay exclusion, Judge Hensley ruled that all the statements made by Susan to Mrs. Hollett after Susan was picked up and before they arrived home were admissible. He reasoned that under Alaska Evidence Rule 803(2) and Brandon v. State, Susan's statements in the car were made while she was in pain and scared that Bailey, her assailant, would find her, and thus qualified as excited utterances. He found that the entire ordeal with Bailey, including Susan waiting for Bailey to fall asleep, leaving the room, calling for her mother to pick her up, and driving home, constituted the "exciting event." However, Judge Hensley excluded all statements made by Susan to Mrs. Hollett after they returned home, because the impact of the exciting event had diminished by that time and her statements could no longer be considered spontaneous.
778 P.2d 221 (Alaska App. 1989).
Bailey challenges Judge Hensley's admission, as excited utterances, of Susan's statements to Mrs. Hollett after she picked her daughter up at Carrs.
Rule 803(2) provides an exception to the normal ban on hearsay for "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." Bailey does not argue that the incident was not a "startling event"; he argues that Susan was no longer under the "excitement" of the incident by the time she was in the car with her mother.
Judge Hensley analyzed the statements in this case under Brandon v. State. In Brandon, the defendant held his wife captive and assaulted her for several hours. As soon as it was possible for her to get away, she went to a women's shelter, where she made statements to a counselor that implicated Brandon in her assault. This Court viewed the entire ordeal with the victim's husband, up to and including her escape and arrival at the shelter, as the exciting event. The fact that the victim was upset, fearful, in pain, and worried that her husband might find her when she made the statements at issue demonstrated that she was still under the stress of the excitement of the event.
Id.
Id. at 225.
Id. at 222.
Id. at 225-26.
Id.
Bailey attempts to distinguish Brandon based on a number of details that were different than this case, such as the time Susan spent waiting for her mother and the fact that she was not crying when her mother picked her up. But the commentary to Rule 803(2) recognizes the absence of any "pat answers" to the question of whether this exception applies.
Commentary to Evidence Rule 803(2), fifth paragraph.
Judge Hensley found that the exciting event included not only Bailey's assault of Susan, but also "being alone in the motel room with [him] for a period of time after the beating until he finally fell asleep" and "the continued fear that [he] would find her at Carrs and drag her back home before her mother rescued her." Judge Hensley also found that Susan was still in pain and frightened of her husband when she was waiting for her mother and riding home with her and thus was still under the stress of the excitement of the exciting event. These findings are not clearly erroneous. We conclude that Judge Hensley did not abuse his discretion when he admitted this evidence under Rule 803(2).
Turning to the evidence that Susan identified Bailey as her assailant to the medical staff, we conclude, as we discussed above, that any error in admitting this evidence was harmless. Bailey was identified as the perpetrator of Susan's injuries by other evidence, including Susan's excited utterance to her mother, and the circumstances of Bailey's conversation with Mr. Hollett. Any error in admitting Susan's statement in the medical records did not appreciably affect the jury's verdict.
Love v. State, 457 P.2d 622, 631-32 (Alaska 1969).
Id.
Bailey also argues that all the evidence of this incident should have been excluded under a Bingaman analysis. Bailey acknowledges that this evidence was relevant to prove Bailey's propensity to assault Susan. But he argues that the State's evidence that Bailey actually engaged in this conduct was not strong, that the incident was too remote in time because it occurred ten years before Susan's homicide, and that the incident took significant time to litigate because three witnesses testified regarding it. But Judge Hensley, with the knowledge (from the State's offer of proof) that three witnesses would testify regarding this event, specifically found that this evidence would not take significant time to litigate. He also found that because the State was attempting to establish a longstanding pattern of domestic violence, the fact that it occurred ten years before the charged conduct did not make the incident too remote. And Judge Hensley found the probative value of the evidence to be strong because it was evidence of a severe beating, similar in nature to the charged conduct, and because it concerned a highly contested matter. We conclude that Judge Hensley's analysis and ruling did not constitute an abuse of his discretion.
Bailey argues that statements Susan made to M rs. Hollett, both on the phone and in the car after Mrs. Hollett picked Susan up at Service High School in February or March of 1990, were not admissible as excited utterances. Bailey further argues that all the evidence of this incident was inadmissible under Bingaman.
Testimony regarding this incident came from Mrs. Hollett, Mr. Hollett, and Julia Christian. Mrs. Hollett testified about this incident both at the pre-trial evidentiary hearing and at the trial itself. In February or March of 1990, Mrs. Hollett got a mid-morning phone call from Susan. Susan said she was at Service High School and asked for her mother to come pick her up. Mrs. Hollett asked Susan why she was there, and Susan said she had left home to get away from Bailey because he had been trying to hurt her. Mrs. Hollett said Susan sounded anxious and worried. When Mrs. Hollett picked Susan up, Susan said that she had to get away from Bailey because "he had tried to hurt her and had twisted her arms," and she did not want to be around when Bailey woke up. Mrs. Hollett said Susan was afraid Bailey was going to hurt her and "wanted to get away as fast as she could so that he couldn't find her." Susan did not appear to be injured but said her back hurt. Susan stayed at the church where Mrs. Hollett worked for a few hours; she later made some more statements to Mrs. Hollett, but those statements were ruled inadmissible.
While Susan was resting at the church, Mrs. Hollett called Mr. Hollett, and they planned to take Susan to the house of one of Mr. Hollett's friends, Julia Christian, because they were reluctant to leave Susan alone. At the end of the day, Mr. and Mrs. Hollett dropped Susan at Christian's house. Christian testified that Susan was upset, that there were bruises on her arms, and that she was moving slowly and tentatively. Susan only stayed at Christian's house for a few hours. Later that same night, Christian took Susan to the Sears Mall where Mr. Hollett picked her up.
When the Holletts returned home without Susan, Bailey was there. Mr. Hollett testified that Bailey was angry and belligerent and wanted to know where his wife was. Mr. Hollett did not want to tell Bailey where Susan was. Bailey accused the Holletts of hiding Susan and said that "Susan was his wife and. . . he could do what he wanted." Because Bailey was so angry and not calming down, the Holletts became concerned and decided to take Susan to the AWAIC (Abused Women's Aid In Crisis) shelter. Mr. Hollett picked up Susan at the Sears Mall and took her to the shelter. When Mr. Hollett returned home, he told Bailey where Susan was, and Bailey left.
Although only Mrs. Hollett testified at the evidentiary hearing, the rest of the testimony was previewed for Judge Hensley in the State's offer of proof. Judge Hensley ruled that all the evidence of this incident was admissible and not unfairly prejudicial under Rule 403 for the same reasons he outlined when ruling on the November 1989 incident.
Judge Hensley ruled that Susan's statements to Mrs. Hollett on the phone and in the car were admissible as excited utterances. He again used the Brandon case as a guide, and his analysis was very similar to that of the 1989 incident. He found that the exciting event was not only Bailey's physical abuse of Susan, but also "the escape, the walking in fear to Service High School, and the waiting in fear until her mother actually arrived and rescued her." Judge Hensley excluded any statements made by Susan after arriving at the church, and Mr. and Mrs. Hollett and Julia Christian did not testify as to these statements at trial.
Bailey argues that statements Susan made to Mrs. Hollett, both on the phone and in the car after Mrs. Hollett picked Susan up at Service High School, were inadmissible as excited utterances. He argues that her statement on the phone that Bailey was trying to hurt her was not spontaneous because it was made in response to a question. He also argues that Susan's statements in the car were not excited utterances because Susan walked a half mile from her home to the high school, then waited for her mother for twenty minutes, before making these statements. He argues that this "time gap" rendered Susan's statements inadmissible.
Bailey's arguments fail for the same reasons as discussed above. Judge Hensley ruled that the exciting event extended beyond the events that took place at home. And even a "time gap," without some indication that the declarant had calmed down, is not sufficient to render a statement inadmissible. Finally, the mere fact that Susan's statement over the phone was in response to a question, thus perhaps making it not "spontaneous" in the lay definition of the word, does not mean the statement was not "made while the declarant was under the stress of excitement caused by the event or condition." Mrs. Hollett testified that Susan was anxious and worried and afraid that Bailey would find her. Judge Hensley's findings were not clearly erroneous.
Bailey also argues that all the evidence of this incident was inadmissible under Bingaman. Bailey's arguments are cursory. And Bailey concedes that the evidence of this incident was relevant to Bailey's propensity to assault Susan. Bailey argues that there was "abundant other evidence" of Bailey's propensity to assault Susan. But Judge Hensley noted that the State was attempting to prove a years-long pattern of continuous domestic abuse, so evidence of a multiplicity of incidents was appropriate, and this evidence could reasonably be considered non-cumulative. Bailey also argues that the State's evidence that Bailey committed this act was not strong because it was based on hearsay. Finally, Bailey argues that litigation of the incident took a significant amount of time at trial because three witnesses testified regarding the day's events. But, given the importance of the issue of Bailey's propensity to assault Susan and the strength of the government's evidence on this matter, Judge Hensley did not abuse his discretion by allowing evidence of this incident.
Bailey next argues that Judge Hensley erroneously admitted evidence of the 1992 incident where Bailey cut Susan with a knife. Mrs. Hollett testified before the grand jury and at trial about the incident in question. At trial she testified that in June 1992, she was in bed, but not asleep, when Susan came upstairs and into Mrs. Hollett's bedroom. Susan came into the room "quickly" and was holding her stomach, which was bleeding. Mrs. Hollett asked Susan what happened, and she responded that "[Bailey] had cut her with a knife." Mrs. Hollett described the wound as not very deep and about an inch in length. Mrs. Hollett and Susan went downstairs and "asked [Bailey] what was going on, what had happened," and Bailey responded that he and Susan "had a little argument, but he didn't say much of anything else."
Judge Hensley based his evidentiary rulings regarding this incident on the State's offer of proof, oral argument by the parties, and Mrs. Hollett's testimony before the grand jury. He ruled that Susan's statement that Bailey had cut her with a knife was admissible under Rule 803(2) as an excited utterance. He also ruled that the evidence of this incident was admissible under Rules 403 and 404. He specifically found that the incident demonstrated the same behavior as the charged conduct (a serious domestic assault), that this incident was important for the State to prove a pattern of domestic abuse, that there was no less prejudicial evidence to admit on the issue, and that this issue would not take an inordinate amount of time to litigate.
Bailey argues that evidence of this incident should be inadmissible under Bingaman and Rule 403. Bailey does not challenge Judge Hensley's ruling that Susan's statements were excited utterances.
Bailey argues that he did not clearly "admit" to injuring Susan. Therefore, he contends, the State's evidence that Bailey actually committed this conduct was weak, and thus its probative value was slight and should be excluded under Rule 403. But Susan's statement identifying Bailey as the person who cut her, the admissibility of which Bailey does not challenge, connects Bailey to the conduct even without his admission. And Bailey does not challenge Judge Hensley's findings on the Bingaman factors. We conclude that Judge Hensley did not abuse his discretion in admitting evidence of the 1992 knife incident.
Next, Bailey challenges the admissibility of an incident in 1995 during which Bailey assaulted Susan with a knife. He relies primarily on his argument regarding the admissibility of this evidence before the grand jury. Mr. Hollett and Karla Hollett (Mr. Hollett's daughter-in-law) testified about this incident at trial.
Mr. Hollett testified that one night, when he was asleep, Susan came into his bedroom yelling "Dad, Dad, [Bailey is] trying to drag me out of the house. . . and if he gets me out, he'll kill me." Mr. Hollett said she was very scared and that he had never seen her that afraid of anything before. Mr. Hollett testified that Susan was holding her stomach and said that Bailey had cut her with a penknife. Susan showed him the injury; he described the cut as not very deep but one or two inches long and bleeding.
According to Mr. Hollett, Bailey was downstairs yelling for Susan to come down and get in the car. Mr. Hollett told Susan to remain upstairs and went downstairs to talk to Bailey, who was standing just outside the garage with the garage door open. Bailey continued yelling for Susan. Mr. Hollett told Bailey that Susan was not coming down and asked him to leave. Bailey was pacing back and forth, shouting, and seemed very angry. Mr. Hollett testified that Bailey then yelled (more than once) that "Susan's my wife, and I can do anything I want to her." At one point, Bailey picked up a jack from inside the garage and threw it through the window of his car. Susan came downstairs, and Mr. Hollett stood between her and Bailey and again told Bailey to leave. Mr. Hollett was worried Bailey might hurt Susan because he had never seen Bailey this angry before. Susan went back indoors, and shortly after, Bailey left.
Because he felt that he "needed somebody else around the house," Mr. Hollett called his son Cort, and Cort and his wife Karla came over to the Holletts' house. Susan agreed to go to the AWAIC shelter, and Karla took her there.
Karla and Susan entered the AWAIC shelter after they were admitted through a locked gate. When they were inside the shelter, they could hear Bailey's voice shouting over the speaker at the gate, and Karla was frightened.
Judge Hensley found Susan's statements to Mr. Hollett admissible as excited utterances under Rule 803(2). He found Bailey's statements to Mr. Hollett admissible as admissions under Rule 801. He also ruled that the evidence of this incident was admissible under Rules 403 and 404, for the same reasons as the 1992 knife incident. He found that Bailey's demeanor and actions, both in the garage and outside the AWAIC shelter, were relevant to show his propensity for anger directed at his wife. He specifically found that the incident demonstrated the same behavior as the charged conduct (a serious domestic assault), that this incident was important for the State to prove a pattern of domestic abuse, that there was no less prejudicial evidence to admit, and that this issue would not take an inordinate amount of time to litigate.
Bailey relies primarily on his argument regarding the admissibility of this evidence before the grand jury. He argues that some of the testimony about this incident was hearsay, and that all the evidence of this incident should be excluded under Bingaman and Rules 402 and 403. Bailey contends that the State's evidence that Bailey actually committed the acts in question was not strong because it was based on hearsay. However, the only statement Bailey identifies as hearsay is a statement made by Mr. Hollett when testifying at grand jury that this was "not the first time [Susan] had told [him]" that Bailey was going to kill her. The State did not identify this statement as one the State sought to introduce at trial, and Bailey did not argue that this statement must be excluded at trial. The trial court did not rule on the admissibility of this statement, and Bailey did not request a ruling on it. And Mr. Hollett did not make this statement during his testimony at trial. Thus, this argument has no bearing on Bailey's argument for admissibility of this incident at trial.
The State contends that Susan's statements to Mr. Hollett about this incident are admissible as excited utterances. Bailey does not challenge the admissibility of Susan's statements on this ground. Instead, Bailey's claim rests primarily on his argument that the evidence of this incident should have been excluded because presentation of the evidence took up "a fair amount of trial time" and because it led the jury to be confused and to convict Bailey on improper grounds. But Judge Hensley expressly considered the Bingaman factors and ruled that this evidence was relevant, probative, and thus admissible. This ruling did not constitute an abuse of discretion.
Bailey next challenges the admissibility of testimony given by Michaela Bailey, the Baileys' oldest daughter. He argues that her testimony was irrelevant and inadmissible under Bingaman and Rules 401, 402, and 403.
Michaela testified that her parents had fights, during which they would yell at each other, and sometimes her mother would get hurt. Her mother sometimes bled or had black eyes as a result of the fights. Her parents usually had fights late at night, and they occurred about every other weekend. Michaela said she sometimes saw her father drinking at night, around the same time as the fights. She testified that sometimes she could hear yelling and banging against the wall when she was in her room. After hearing the banging sounds, she would see damage to the walls. During the fights, she could hear her mother crying and asking her father to stop. She also testified that she thought she heard yelling and banging the night before her mother disappeared.
On cross-examination, Michaela admitted that she initially told the police that she had never seen her father hit her mother. She also stated that she was afraid to tell the police about the fights between her mother and father because her father had said it was "family business."
Judge Hensley analyzed Michaela's proposed testimony (which was substantially the same as the testimony given at trial) under the Bingaman factors. Judge Hensley found that Michaela's statements were relevant because they constituted "direct observations of domestic violence between Mr. Bailey and Susan Bailey" and were of the same "situational" type because they were perpetrated against the same victim and in the same place as the charged conduct. He found that they were not remote in time and that they would not take an unreasonable amount of time to litigate. He found that the State had enough other evidence supporting its case that it was unlikely the jury would decide the case based on improper grounds. Finally, he recognized that Michaela's prior inconsistent statements to the police cast some doubt on the reliability of her testimony, thus weakening the probative force of this testimony somewhat, but found that this factor did not tip the balance in favor of exclusion. He noted that Bailey would have ample opportunity to challenge the reliability of the testimony on cross-examination. During Michaela's testimony, Judge Hensley overruled Bailey's objection that Michaela's testimony did not provide any specific time frame for the fights.
Bailey first argues that since Michaela's testimony about observing the fights between her mother and father had "no specific time line," her testimony lacked foundation and was thus irrelevant and inadmissible. Bailey cites no legal authority in support of this proposition, other than Evidence Rules 401 and 402. Essentially, Bailey maintains that the testimony is irrelevant if the witness cannot provide a precise timeline. As the State points out, the timeline was not as vague as Bailey claims. Michaela testified to fights during a three-year period after her family moved out of the Holletts' home, thus placing their occurrence between June 1996 and June 1999.
Bailey also argues that Michaela's statements were vague and speculative, and thus irrelevant and inadmissible. Although Michaela's statements about fights between her mother and father were somewhat generalized, Bailey was able to cross-examine Michaela about the specifics of these incidents. It was up to the jury to determine how much weight to afford Michaela's testimony.
Bailey also argues that the events about which Michaela testified were too remote in time, thus rendering them inadmissible under Bingaman. However, Judge Hensley ruled that since Michaela was eleven years old at the time her mother disappeared, any observations of incidents of domestic violence were well within the ten-year time period Judge Hensley had previously found relevant for purposes of establishing a pattern of domestic violence.
Finally, Bailey argues that Michaela's testimony was unduly prejudicial because she was the only witness who testified about actually viewing Bailey abuse Susan and that the impact of one of the Baileys' children testifying to the domestic abuse was "overwhelming." But these are precisely the reasons Judge Hensley found that Michaela's testimony was relevant, and on balance, more probative than prejudicial. Judge Hensley further found that "[since] there's other forensic evidence that supports the State's case, the likelihood of the jury deciding this case solely on the evidence of prior domestic violence is not great."
Bailey has not demonstrated that Judge Hensley abused his discretion in ruling Michaela's testimony admissible.
Bailey also challenges the admissibility of Jennifer Martin's trial testimony. Martin lived downstairs from the Baileys and testified about noises she heard coming from the Baileys' apartment. Bailey repeats his argument regarding the admissibility of this evidence before the grand jury.
Martin lived downstairs from the Baileys for about five or six months. She testified that almost every night, from when she returned from work just after midnight until 2:00 or 3:00 a.m., she heard noises that "sounded like running and then thumping on walls and banging" coming from the Baileys' apartment. Martin testified that she asked Bailey about these noises and he said it was the children running around and jumping off the furniture. She testified that on more than one occasion, Bailey joked that "you have to beat the wife to keep her in line."
Bailey argues that the testimony about the noises Martin heard coming from the upstairs apartment was irrelevant and thus inadmissible at trial under Rules 401 and 402. He states that a factfinder "would have to guess that these sounds came from Michael Bailey assaulting Susan." He also argues that because of the speculative nature of the evidence and its lack of any timeline, the probative value of this evidence was limited and thus the evidence was also inadmissible under Rule 403.
In his motion in limine before the trial court, Bailey did not address the potential testimony of Martin. Martin's testimony was also not mentioned in Bailey's oral argument during the pre-trial hearing before Judge Hensley on the admissibility of other acts evidence. Thus, Judge Hensley did not issue a ruling on the admissibility of Martin's testimony at trial, and Bailey did not request a ruling on this evidence. In addition, Bailey did not make any objections based on speculation, relevance, or lack of foundation while Martin was testifying.
The State argues that Bailey did not preserve any claims on this evidence because he did not object. Bailey contends his objections are preserved because Judge Hensley stated that "at least part of the evidence of the. . . 1997 neighbor hearing the noises [incident]. . . [is] admissible under evidence rule 404(b)" when ruling on Bailey's motion to dismiss the indictment. But this was not a ruling on the admissibility of Martin's testimony at trial. We conclude that Bailey waived this argument.
See Jonas, 773 P.2d at 963.
Next, Bailey argues that the testimony of two of Susan's co-workers, William Davis and Deborah Denny, was inadmissible at trial. The State wanted to introduce the testimony of several of Susan's co-workers about Susan's injuries and their opinions that these injuries were the result of domestic violence. Judge Hensley ruled that the co-workers' opinions about the cause of the injuries would be admissible as lay opinions. But he excluded the vast majority of the co-worker testimony under Bingaman and Rule 403. Judge Hensley found that although "a reasonable jury could make [the] link" between the injuries and Bailey, the State's evidence that Bailey caused those injuries was not strong. He found that the State had plenty of other, stronger evidence of prior acts of domestic violence by Bailey. He found that most of the co-worker evidence was more prejudicial than probative and that the introduction of a large amount of co-worker testimony ran the risk of overshadowing the direct evidence on the charged conduct.
Judge Hensley ruled that only the evidence of a large wound on Susan's head seen by co-workers was admissible because it was a serious injury, like the charged conduct, and it was closer to the time of Susan's death than the other observations. He also found that Susan's "false explanations" for the injury (she had stated that she got the injury on a camping trip), but there were statements from the children that nobody had been injured on that trip increased the probative value of this evidence, and that this one incident would not take much time to litigate. Thus Judge Hensley allowed evidence of this incident, but to avoid cumulative testimony, he limited the State to one witness.
Although Judge Hensley limited the State to one witness, William Davis testified after Deborah Denny had already testified about the injury on Susan's head. However, Bailey did not object to the second witness and he does not now argue that Davis's testimony was improper for any reasons other than his general arguments on this topic.
Bailey references his earlier grand-jury-related argument in objecting to the admissibility of the co-worker testimony. Essentially, he argues that the testimony was improper because "the conclusion that these injuries were the result of beatings from Michael Bailey was pure speculation." However, Judge Hensley explicitly found that the testimony was relevant because the jury could properly infer that Bailey had committed violence against Susan, resulting in the injuries observed by her co-workers. He also made Bingaman findings regarding the one co-worker observation of injury he admitted, finding that its probative value was strong and that it would not take a long time to litigate. We conclude that Judge Hensley did not abuse his discretion when he allowed the co-worker testimony regarding the serious head wound.
Finally, Bailey argues that the erroneous admission of a "tremendous amount" of evidence concerning prior bad acts appreciably affected the jury's verdict, and thus that its admission was not harmless and must result in reversal of his convictions. But we have upheld Judge Hensley's rulings on the trial evidence with the exception of the evidence from the medical records identifying Bailey as Susan's assailant. And because the medical record evidence identifying Bailey was cumulative of other evidence establishing Bailey as the assailant in the assault described in the medical records, this error did not appreciably affect the jury's verdict.
Love, 457 P.2d at 631-32.
Bailey further argues that even if the evidence is admissible, the totality of the prior bad act evidence was cumulative, unfairly prejudicial, and appreciably affected the jury's verdict. We reject this argument. With the exception of the medical records issue, we rejected Bailey's attacks on the admissibility of the 404(b) evidence at trial. Judge Hensley did not abuse his discretion when he admitted this evidence.
Sentencing issues
Bailey was convicted of second-degree murder and four counts of tampering with evidence. Judge Hensley decided that Bailey should receive a sentence in excess of the 20-to 30-year benchmark range for second-degree murder identified in Page v. State.
657 P.2d 850, 855 (Alaska App. 1983).
Bailey argues that any factual findings a judge makes to justify a departure from the Page guideline violates Blakely v. Washington. Bailey argues that those findings must be made by a jury applying a beyond a reasonable doubt standard.
542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
We rejected this argument in Carlson v. State, where we held that Blakely does not apply to a sentencing court's decision to exceed the Page benchmark. Bailey urges this court to reconsider its decision in Carlson but fails to give any persuasive reasons why Carlson should be overruled and why Blakely should be applied to a trial court's decision to exceed the Page benchmark, other than to reiterate the very arguments we rejected in Carlson.
128 P.3d 197 (Alaska App. 2006).
Id. at 211.
See id. at 209-11.
Next, Bailey challenges Judge Hensley's finding that Bailey's offense was aggravated under AS 12.55.155(c)(10) because his conduct constituting the offense of second-degree murder was among the most serious included in the definition of that offense.
Bailey notes that, during Judge Hensley's sentencing remarks, the judge observed that Bailey's offense was among the most serious because Bailey acted with "a clear intent to cause serious physical injury," i.e., the culpable mental state required for conviction under subsection (a)(1) of the second-degree murder statute, as opposed to the extreme indifference to the value of human life that is required for conviction of second-degree murder under subsection (a)(2).
This Court has repeatedly held that when a criminal statute provides two or more theories of culpability (such as the second-degree murder statute), no single theory of culpability is deemed inherently more blameworthy than the others. Thus, for instance, when a defendant is convicted of second-degree murder under subsection (a)(1) for causing a death while engaged in an assault with intent to inflict serious physical injury, the defendant's conduct is not more inherently blameworthy than the conduct of another defendant who is convicted of second-degree murder under subsection (a)(2) for causing a death while engaged in conduct that manifests extreme indifference to the value of human life.
See Gustafson v. State, 854 P.2d 751, 765-66 (Alaska App. 1993); W alsh v. State, 677 P.2d 912, 916-17 (Alaska App. 1984); Juneby v. State, 641 P.2d 823, 841 (Alaska App. 1982), modified on other grounds, 665 P.2d 30 (Alaska App. 1983).
If Judge Hensley's remarks on this topic had been confined to the challenged remark quoted above, we might ask him to reconsider. However, when Judge Hensley's remarks are viewed as a whole, it is clear that he found that Bailey's offense was among the most serious not only because Bailey acted with a clear intent to inflict serious physical injury on his wife, but also because Bailey's assault on his wife was prolonged and brutal, and because this assault was the culmination of years of domestic violence, during which Bailey repeatedly injured his wife to the point where medical care was required or indicated.
We do not read Judge Hensley's sentencing remark that Bailey acted "with a clear intent to inflict serious physical injury" as one of the factors that Judge Hensley relied on to find aggravator (c)(10).
Moreover, any potential error in Judge Hensley's finding of aggravator (c)(10) is moot. The aggravating and mitigating factors listed in AS 12.55.155(c) and (d) apply only to cases where the defendant is subject to presumptive sentencing. Second-degree murder is not governed by presumptive sentencing; a sentencing judge is authorized to impose any sentence within the statutory range of punishment for this offense without regard to whether aggravating factors are proved. Thus, any error in Judge Hensley's ruling on aggravator (c)(10) is moot.
See AS 11.41.110(b) and AS 12.55.125(b).
Allen v. State, 56 P.3d 683, 684 (Alaska App. 2002).
Finally, Bailey argues that his sentence is excessive. Judge Hensley sentenced Bailey to 89 years' imprisonment for the second-degree murder, and 2 years' imprisonment for each of the tampering counts, to run concurrently with each other but consecutively to the sentence for second-degree murder. Thus, Bailey received a composite 91-year term.
Judge Hensley reviewed appellate decisions on sentences for second-degree murder cases, and compared Adkins v. State to Bailey's case. Bailey challenges the comparison between his case and Adkins. In Adkins, a 27-year-old man killed a female companion in an act of violence arising out of a dispute over cocaine and concealed her body in the woods. Adkins had a prior history of domestic violence and a prior felony conviction. This court affirmed the 50-year term Adkins received. Judge Hensley found that Bailey's case was "significantly more aggravated" than Adkins' case. He found that Bailey's history of domestic abuse was longer and more severe than the abuse in Adkins. He found that Bailey's criminal history was substantially worse, and since Bailey was older than Adkins at the time the crime was committed (Bailey was 47), Bailey's prospects for rehabilitation were also worse than Adkins's. Finally, Judge Hensley found that the conduct which caused Susan's death was much more brutal than the conduct in Adkins because Adkins's violent act was "spontaneous" and Bailey's was "the result of a pattern of abuse." Judge Hensley again noted that Bailey had committed much of this pattern of violence in the presence of his children. Judge Hensley's findings are supported by the record.
776 P.2d 1058 (Alaska App. 1989).
Id. at 1058-59.
Id. at 1059.
Id. at 1059-60.
Judge Hensley found that Bailey's crime was "an extremely aggravated second-degree murder and among the most serious of murders contemplated by the second-degree murder statute." He reached this conclusion because of the brutality of the "severe and prolonged beating" which led to Susan's death, because it was a crime of domestic violence that was the result of a years-long pattern of abuse of Susan, and because many of the incidents of abuse occurred in the presence or awareness of the three young Bailey children. Susan was also not the only woman he abused. Judge Hensley found that early in the Baileys' marriage, Bailey assaulted another woman so badly that she fled the state for safety.
Judge Hensley also found that Bailey's likelihood of rehabilitation was "almost nil." He reached this conclusion because Bailey never sought counseling or treatment, or even acknowledged that there was anything unacceptable about his behavior. And Judge Hensley found that Bailey's long criminal history, although it did not demonstrate a history of felonies or assaults, indicated that he was not amenable to rehabilitation. Judge Hensley found that Bailey presented a danger to society because of the high risk that he would commit similar crimes of domestic violence in the future. Judge Hensley announced that the purpose of the sentence was to "keep Mr. Bailey locked away to protect the public."
Bailey's years-long, unfaltering pattern of severe abuse of his wife establishes his case as exceptional. The evidence admitted at trial showed that, over the course of their marriage, Bailey repeatedly committed felony-level assaults on his wife that required medical attention even though Bailey was not prosecuted for those assaults.
From our own review of the record, we conclude that Bailey's composite term of 91 years' imprisonment is not clearly mistaken. Conclusion
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (holding that an appellate court is to uphold a sentencing decision unless the sentence is clearly mistaken).
The judgment of the superior court is AFFIRMED.