PICKERING v. STATE, A-9943 (Alaska App. 2-9-2011)

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Docket Number

Court of Appeals No. A-9943.

Attorney(S)

Colleen A. Libbey, Libbey Law Offices, LLC, Anchorage, for the Appellant. Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.

Judges

David Mannheimer

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EARL E. PICKERING JR., Appellant, v. STATE OF ALASKA, Appellee.

MEMORANDUM OPINION AND JUDGMENT

COATS, Chief Judge.Page 2

Earl E. Pickering Jr. was convicted of murder in the first degree for killing his wife, Carolyn, and tampering with physical evidence. Pickering raises two issues on appeal. First, he argues that Superior Court Judge Michael Thompson erred in allowing a police officer, Josh Dossett, to testify as an expert witness about the crime scene. Second, he argues that Judge Thompson erred in allowing a witness, Rocky Jones, to testify about a prior incident in which Pickering threatened to shoot Jones. We affirm.

AS 11.41.100(a)(1)(A).

AS 11.56.610(a)(1).

Factual and procedural background

Earl and Carolyn Pickering married on June 30, 2005. On September 11, 2005, Rocky Jones, a bartender at the 49er Bar in Ketchikan, observed Pickering and Carolyn arguing. Jones testified that he heard what was either a slap or a hit. When Pickering and Carolyn continued to argue, Jones told Pickering "to knock it off or he had to leave." According to Jones, Pickering told him that "it was none of my business, to leave them alone, and if I kept bugging him, he'd go across the street, get a gun, come back and shoot me." Jones stated that Pickering said this at least two or three times before Pickering finally left. Jones stated that Pickering "was pretty agitated."

Based upon the incident at the 49er Bar, Pickering pled guilty to assault in the fourth degree for assaulting Carolyn. He was sentenced to thirty days of imprisonment. Carolyn applied for and received a domestic violence restraining order which prohibited Pickering from contacting her.

AS 11.41.230(a).

Pickering was released from prison on November 30, 2005, around 7:00 a.m. That same afternoon, Harold Jones and Dewey Lavell were at Carolyn's house. Pickering entered Carolyn's house without knocking and sat down next to her. He seemed "a little bit drunk" and "fairly angry." Jones and Lavell left the residence sometime around 3:00 p.m. with Pickering still there.

Some time after Jones and Lavell left the residence, Carolyn suffered a gunshot to the head and died. The police found Carolyn's body at her residence at 8:00 p.m. Ketchikan Police Officer Josh Dossett led the investigation. As part of the investigation, he had the scene recorded on videotape and with photographs.

The police found Pickering and arrested him. He had droplets of blood on his forehead, at his hairline, and on his ear. He also had blood on his clothing. DNA in the blood on Pickering's pants and sweatshirt matched Carolyn's DNA.

Pickering testified in his defense. He testified that he shot Carolyn by accident. He said that he was working on a rifle while Carolyn was on the bed, and the rifle went off.

The jury convicted Pickering of murder in the first degree.

Pickering's contention that Judge Thompson erred in allowing Officer Josh Dossett to testify as an expert witness

On January 2, 2007, seven days before trial, the State gave notice that it intended to call Officer Dossett as an expert witness to testify about "blood spatter patterns and related findings . . . and render opinions with regard to the position(s) of the firearm, the victim, and bullet trajectory." Pickering objected. He pointed out that the State's notice was late and that the court indicated that it would not permit expert witnesses to be called if they had not been disclosed by December 22, 2006. He indicated that, in reliance on the assumption that the State would not be calling an expert, he had canceled plans to call his own expert. He argued that the court should exclude Officer Dossett's testimony from the trial. Pickering argued that, in the event that the court would not exclude the testimony, it should grant a continuance.

The State argued that the court should permit Officer Dossett to testify as an expert witness. The State pointed out that Officer Dossett testified as to blood splatter at the grand jury. The State argued that, if the court was going to limit the officer's testimony so the State could not present the same evidence to the trial jury that it presented to the grand jury, the State would rather have a continuance.

Judge Thompson refused to grant a continuance. He ruled that Officer Dossett could not give expert testimony.

Officer Dossett testified fairly extensively at trial. He generally testified to observations that he made at Carolyn's house during his investigation and illustrated his testimony with the videotape and pictures. Although Pickering generally did not object to Officer Dossett's testimony at trial, he did object that Officer Dossett was giving expert testimony on two specific instances. When the State asked Officer Dossett if he drew any conclusions from the void in blood spatter on the side of the bed, Pickering objected that this would be improper expert testimony. Judge Thompson overruled the objection. Officer Dossett went on to testify that his working theory was that Carolyn had not shot herself. But this testimony was inconsequential given Pickering's admission that he shot Carolyn. At another point in Officer Dossett's testimony, Pickering objected that Officer Dossett was "starting to get into expert reconstruction." But after a bench conference in which the State explained what it was attempting to do, Pickering withdrew his objection.

Alaska Rule of Evidence 701 allows lay witnesses to give opinion testimony "limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness's testimony or the determination of a fact in issue." Alaska Evidence Rule 702 governs the admission of expert testimony: "If scientific, technical, or other specialized knowledge will assist the trier of fact . . . a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." The decision whether to admit expert testimony should depend on "the likelihood that specialized help would assist the trier of fact." The fact that a witness has specialized training or states an opinion does not necessarily make the witness an expert witness. The critical distinction is whether the witness's opinion rests on specialized knowledge that is likely not shared by the jury.

Alaska Evid. R. 702 cmt. ¶ 4 (citing Leavitt v. Gillaspie, 443 P.2d 61 (Alaska 1968)).

Carter v. State, 235 P.3d 221, 225 (Alaska App. 2010).

Judge Thompson made it clear that he would not allow Officer Dossett to testify as an expert witness. And, in general, Officer Dossett did not testify as an expert. His testimony mainly consisted of his observations at the crime scene, which he illustrated with photographs and the videotape. And it seems clear from Pickering's objections that he understood that Officer Dossett was prohibited from giving expert testimony. As we have previously pointed out, Pickering objected to the expert testimony of Officer Dossett's testimony on two occasions. Pickering was not prejudiced by any testimony that came in following those objections. Although it is arguable that Officer Dossett gave some expert testimony concerning the cause of death, the cause of death was not disputed at trial.

We conclude that Judge Thompson did not abuse his discretion in this matter.

Why we conclude that Judge Thompson did not err in allowing Rocky Jones to testify about a prior incident in which Pickering assaulted Carolyn and threatened to shoot Jones

Pickering testified at trial. During cross-examination, Pickering denied that he had assaulted Carolyn in the 49er Bar. He acknowledged that he was prosecuted for fourth degree assault based on this incident and that he pled guilty to that charge, but he stated that he only pled guilty to resolve the case, and not because he was guilty. Pickering also denied threatening to shoot Rocky Jones when Jones intervened.

The State called Rocky Jones as a rebuttal witness. Jones testified that Pickering and Carolyn were arguing and that he heard a slap or hit. He testified that he told Pickering to "knock it off or he had to leave," and testified that Pickering threatened to shoot him. Pickering objected, but Judge Thompson overruled the objection.

Evidence Rule 404(b)(1) bars the admission of evidence of "other crimes, wrongs, or acts . . . if the sole purpose for offering the evidence is to prove the character of a person in order to show that the person acted in conformity therewith." But evidence of prior bad acts is admissible for other purposes, including inter alia to show "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Evidence Rule 403 provides that relevant evidence "may be excluded if its probative value is outweighed by the danger of unfair prejudice."

Alaska Evid. R. 404(b)(1).

Pickering was sentenced to thirty days of imprisonment for assaulting Carolyn at the 49er Bar. Within eight hours of his release from prison for that conviction, he contacted Carolyn at her house in spite of the fact that she had obtained a restraining order prohibiting him from contacting her. It is undisputed that Pickering shot her. The question before the jury was whether Pickering intentionally killed her, thereby committing murder, or whether, as Pickering testified, the shooting was an accident.

Therefore, a critical question in Pickering's trial was Pickering's intent. And Pickering's relationship with Carolyn was important to determining the answer to this question. Whether Pickering had actually assaulted Carolyn in the 49er Bar demonstrated the nature of their relationship and provided a chain of circumstances which could have supported an inference that showed his state of mind and provided a possible motive for him to have killed her. Rocky Jones's testimony demonstrated that Pickering and Carolyn were arguing and that Pickering responded to the argument by assaulting her. Jones's testimony was also relevant to show Pickering's extreme emotions surrounding that incident, which included Pickering's threat that he would get a gun and come back and shoot Jones. Jones's testimony was important to demonstrate the relationship between Pickering and Carolyn and was also important to support the inference that Pickering's continuing anger provided a motive for Pickering to contact Carolyn immediately upon his release from prison and undermined his claim that the shooting was an accident.

Pickering argues that Rocky Jones's testimony that Pickering threatened to shoot him was evidence of a prior bad act distinct from Pickering's assault on Carolyn. But Pickering denied assaulting Carolyn and denied threatening Jones, and the State presented Jones's testimony in rebuttal. Jones's testimony was relevant to show that Pickering did in fact assault Carolyn, and Pickering's threat to shoot Jones was part of that same incident. Thus, it was admissible under Rule 404(b)(1).

Accordingly, we conclude that Judge Thompson did not abuse his discretion in concluding that Rocky Jones's testimony about the incident in the 49er Bar in which Pickering assaulted Carolyn was admissible under Evidence Rule 404(b)(1) and that the relevance of this evidence was not outweighed by the danger of unfair prejudice.

The judgment of the superior court is AFFIRMED.

MANNHEIMER, Judge, concurring.

I write separately to clarify two aspects of this case.

First, regarding Pickering's objection to the testimony of Officer Dossett, it is important to understand the true nature of the underlying legal dispute.

Ostensibly, Pickering's attorney objected to Dossett's testimony on the ground that the State allegedly violated its duty of pre-trial disclosure under Alaska Criminal Rule 16(b)(1)(B) — by failing to give sufficient advance notice of an expert witness. However, this was not a situation where the State failed to notify the defense attorney of an expert witness's identity or the expected content of an expert witness's testimony.

Officer Dossett was one of the primary investigators in the case, and he testified to the grand jury concerning his analysis of the evidence found at the scene of the death. The record suggests that Pickering's attorney was fully aware of Dossett's role in the case, and the expected content of Dossett's testimony.

Thus, it appears that the true basis of the defense attorney's objection to Dossett's testimony was not a lack of notice. Rather, the real underlying dispute concerned the proper characterization of Dossett's testimony under the Alaska Rules of Evidence. In effect, the defense attorney was arguing that Dossett should be prohibited from testifying, not because the prosecutor failed to give the defense advance notice of Dossett's testimony, but rather because the prosecutor failed to perceive that a portion of Dossett's anticipated testimony might qualify as "expert" testimony under Evidence Rule 702 rather than lay testimony under Evidence Rule 701.

As Judge Coats explains in the lead opinion, the trial judge resolved this dispute by ruling that Officer Dossett's testimony would be confined to lay opinion, and by inviting the defense attorney to object if Dossett overstepped that boundary and began to offer expert opinion. (See our explanation of the distinction between "lay" and "expert" opinion in Carter v. State, 235 P.3d 221, 224-25 (Alaska App. 2010).)

The trial judge's approach was one reasonable method of resolving the problem. However, I think there is good reason to question the underlying premise of the defense attorney's argument — the premise that, if Dossett's testimony had been expert testimony, Pickering would have been entitled to prevent the State from presenting Dossett's testimony.

It is one thing to exclude a witness under Criminal Rule 16(b) or (c) when a litigant fails to honor their legal duty to apprise the opposing party of the witness's anticipated testimony. See Harris v. State, 195 P.3d 161 (Alaska App. 2008). It is a different matter to invoke the same remedy against a litigant who fully discloses the anticipated testimony but fails to perceive that a portion of that testimony qualifies as "expert" opinion under Evidence Rule 702.

Criminal Rule 16(a) states that the primary purposes of pre-trial discovery are to minimize surprise, afford the opportunity for effective cross-examination, and satisfy the constitutional guarantee of due process. Because the State fully disclosed the anticipated content of Officer Dossett's testimony, it appears that these purposes were met. Pickering may have had an evidentiary objection to portions of Dossett's testimony (if, in fact, Dossett's testimony verged into expert opinion, and if Dossett did not have the necessary expertise to offer such opinions), but Pickering could not claim surprise as to the content of the testimony.

I turn now to a second aspect of this case: Pickering's claim that Evidence Rule 404(b) barred evidence of his threat to shoot Rocky Jones at the 49er Bar. To properly analyze this claim, it is important to understand that this evidence was not introduced to prove Pickering's general character for violence, but rather his particular emotions with respect to his wife, and his willingness to use violence when those emotions were aroused.

As this Court explained in Smithart v. State, Evidence Rule 404(b)(1) prohibits the admission of evidence of a defendant's other wrongful acts in one specific context:

if the only relevance of those other wrongful acts is to show that the defendant is a person who, by nature, engages in such wrongful acts, and if there is no connection between those prior acts and the episode being litigated other than the assumption that people of a certain character would act the same way on both occasions.

Smithart, 946 P.2d 1264, 1271 (Alaska App. 1997).

Reversed on other grounds in Smithart v. State, 988 P.2d 583 (Alaska 1999).

In Pickering's case, the prior wrongful act was Pickering's assault on his wife at the bar and his accompanying threat to Jones, after Jones attempted to intervene. This was not a situation where the sole connection between Pickering's current crime (the alleged homicide) and his prior wrongful act "[was] the assumption that people of a certain character would act the same way on both occasions." Rather, the connection between these two events was case-specific: the challenged evidence tended to demonstrate Pickering's emotional and assaultive reaction when he found himself in conflict with a particular person, his wife.

The Alaska Supreme Court acknowledged and relied on this distinction in Frink v. State, 597 P.2d 154, 169-170 (Alaska 1979) (upholding the admission of evidence of the defendant's violence toward people who were romantically connected with his girlfriend) and Adkinson v. State, 611 P.2d 528, 532 (Alaska 1980) (upholding the admission of evidence of the defendant's assaultive reaction toward people trespassing on his land). The same distinction applies to Pickering's case, and the challenged evidence was therefore properly admitted.

EARL E. PICKERING JR., Appellant, v. STATE OF ALASKA, Appellee.

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