PAULO v. STATE, A-8948 (Alaska App. 2-6-2008)

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Docket Number

Court of Appeals No. A-8948.

Attorney(S)

Beth G. L. Trimmer, Assistant Public Advocate, Palmer, and Joshua P. Fink, Public Advocate, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.

Judges

David Mannheimer

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PETER D. PAULO JR., Appellant, v. STATE OF ALASKA, Appellee.

MEMORANDUM OPINION AND JUDGMENT

COATS, Chief Judge.

Peter D. Paulo Jr. was indicted by a grand jury for assault in the second degree for recklessly causing serious physical injury to twenty-three-month-old A.H. At the grand jury proceeding the prosecutor did not present evidence contained in two videotaped interviews with T.B., A.H.'s four-year-old brother, nor did the prosecutor present T.B. as a witness. Paulo moved to dismiss the indictment, claiming that the videotaped interviews were exculpatory evidence that the State was required to present to the grand jury. Superior Court Judge Patricia A. Collins denied the motion. After reviewing the videotapes of the interviews, Judge Collins concluded that "T.B. was clearly unable to perceive facts accurately or relate facts intelligibly" — in other words, Judge Collins found that T.B. did not meet the test for witness competency under Alaska Evidence Rule 601. Judge Collins also concluded that the interviews, when considered as a whole, did not constitute exculpatory evidence that the State was required to present to the grand jury. Paulo appeals this decision. We affirm.

AS 11.41.210(a)(2).

Factual and procedural background On June 2, 2003, twenty-three-month-old A.H. sustained significant injuries at his home in Juneau. The parties do not contest that A.H. and his four-year-old brother, T.B., were being watched that day by Paulo. The parties also do not contest that the children's mother, C.H., was not at home when A.H. sustained his injuries. Witnesses at the grand jury testified that Paulo asserted that he was in another room when he heard a noise, and when he reached the living room, he found A.H. lying motionless on the floor. (Paulo initially asserted that A.H. fell off the couch. But at trial, the defense argued that T.B. had attacked A.H., causing him to hit his head on a piece of exposed wood on the couch.)

Paramedics took A.H. to Bartlett Regional Hospital where he was treated by Dr. George W. Brown. A CT scan revealed evidence of a subdural hematoma — bleeding under the lining of the dura in the brain. Dr. Brown determined that A.H. likely required the treatment of a neurosurgeon. There were no neurosurgeons in Juneau, so Dr. Brown arranged for A.H. to be med-evacuated to Seattle, Washington for treatment at Harborview Medical Center. At the grand jury proceeding, Dr. Brown testified that, in addition to the head injury, A.H. had bruising on his face, his abdomen, and below and behind his right ear. Dr. Brown also testified that bruising behind the ears is an indication of shaken baby impact syndrome — a pattern of bleeding, usually on the surface of the brain, caused by rapid acceleration and deceleration forces.

Once in Seattle, Dr. Naomi Sugar, an attending physician at Harborview Medical Center, evaluated A.H. At the grand jury proceeding, Dr. Sugar testified that A.H. had extensive bruises on his face, behind his ear, and on his abdomen. Dr. Sugar also testified that A.H.'s liver enzymes were elevated, but were much more elevated eight hours earlier at Bartlett Regional Hospital. Dr. Sugar explained to the grand jury that when liver enzymes spike and then fall within twenty-four hours in an injured child, it is most consistent with blunt abdominal trauma. Dr. Sugar testified that her diagnosis of A.H. "was inflicted head trauma and probably inflicted bruises." She further explained that the term inflicted "encompasses a number of different kinds of head injuries that can result when a large person either hits or strikes or shakes or throws a young — a smaller person, a much smaller person, violently." Dr. Sugar also testified that the constellation of A.H.'s injuries were not the result of falling two or three feet from a couch onto a carpet.

Jill Robinson, a paramedic who responded to the scene of the injury, testified at the grand jury proceeding that "[t]he injuries to the child were very inconsistent with what the man at the house said had happened to [A.H.]." Robinson testified that in her experience "[c]arpet would not cause [the] injuries that he had," and that she "actually patted the carpet and pushed on it to see if there was padding underneath and to see if it was soft, and it was just normal carpet. In fact, it was shag carpet, which is quite a bit thicker than most carpet is."

Officer Paul Hatch, a twelve-year officer with the Juneau Police Department, also testified at the grand jury proceeding. Officer Hatch testified to bruising on A.H.'s body, including injuries that potentially showed a pattern of finger marks. During his grand jury testimony, a grand juror asked Officer Hatch where four-year-old T.B. was located when A.H. supposedly fell off of the couch. Officer Hatch responded that T.B. was located in the living room with A.H. The juror asked whether Officer Hatch interviewed T.B., and Officer Hatch responded affirmatively that T.B. had been interviewed. The juror then asked Officer Hatch to tell the grand jury what T.B. said during his interview. Before Officer Hatch answered, the prosecutor interrupted and asked Officer Hatch:

The Prosecutor: Let me just — was the interview — was [T.B.] articulate enough to really figure out whether he could understand what he observed that day?

Officer Hatch: I would say no.

The Prosecutor: Okay. [Did T.B. have] any bruises on him?

Officer Hatch: Not that I know of, no. We looked at him. He was at the Child Advocacy Center, which is a separate child interviewing location. Officer Erickson actually did the interview with him, with the forensic interviewer out there, but there were no mentions of any kind of marks on him that were obvious.

There was no further discussion at the grand jury proceeding of the contents of T.B.'s interview. The prosecutor did not present the two videotaped interviews of T.B. to the grand jury, nor did the prosecutor call T.B. as a witness.

Paulo submitted a motion to dismiss the indictment claiming that the State (1) did not present sufficient evidence to support an indictment; (2) unfairly created the impression that inadmissible and damaging (to the defense) statements of a four-year-old witness were in the State's possession; and (3) failed to present exculpatory evidence to the grand jury. Paulo asserted that in the videotaped interviews, T.B. "fully corroborates the defendant's statement to the police about how the injury occurred, by saying that his brother fell and the defendant tried unsuccessfully to revive him with water [and] then laid him on the floor."

Judge Collins denied Paulo's motion to dismiss. After reviewing the videotaped interviews, Judge Collins found that "T.B. was clearly unable to perceive facts accurately or relate facts intelligibly." Judge Collins pointed out that, during the second interview, T.B. denied ever living with his mother, with whom he had resided since birth. She also noted that T.B. "graphically picked up a doll and began slamming it against the floor when questioned about Paulo's discipline." Judge Collins found that T.B.'s testimony would almost certainly have been more confusing than helpful to the grand jury since T.B. could not be trusted to accurately differentiate between reality and fiction. Therefore, Judge Collins determined that the State "did not err in failing to put an incompetent witness on the stand at grand jury." In addition, Judge Collins found that "the videotaped statements [were] not, when considered as a whole, exculpatory to Mr. Paulo."

Why we uphold Judge Collins's decision

On appeal, Paulo argues that the videotaped interview of T.B. on the evening of the incident constituted exculpatory evidence. Paulo points out that during this interview "T.B. repeatedly said that `[A.H.] fell when he was playing on the couch.'" Paulo also argues that the prosecutor "failed to inform the [g]rand [j]ury of the exculpatory nature of T.B.'s interview." He asserts therefore that the grand jury was unable to make an informed decision whether to review the interview tapes.

Alaska Rule of Criminal Procedure 6(q) states, in relevant part:

When the grand jury has reason to believe that other available evidence will explain away the charge, it shall order such evidence to be produced and for that purpose may require the prosecuting attorney to subpoena witnesses.

The Alaska Supreme Court has previously explained that, while on its face Criminal Rule 6(q) seems to place a duty on the grand jury, the actual duty is on the prosecutor. This requirement "stems from our view that `before the accused suffers any of the grave inconveniences which are apt to ensue upon the return of a felony indictment, there should be a reliable determination made as to the probability of his guilt.'" Therefore, the Alaska Supreme Court has interpreted Criminal Rule 6(q) to require prosecutors to present exculpatory evidence to the grand jury because "if the prosecutor does not present exculpatory evidence to the grand jury, it probably will not hear such evidence."

Cameron v. State, 171 P.3d 1154, 1157 (Alaska 2007) (citation omitted).

Preston v. State, 615 P.2d 594, 602 (Alaska 1980) (quoting State v. Gieffels, 554 P.2d 460, 465 (Alaska 1976)).

Frink v. State, 597 P.2d 154, 165 (Alaska 1979).

This court has not interpreted the term "exculpatory evidence" broadly. Instead, the term has been defined narrowly; it refers "only to `evidence that tends, in and of itself, to negate the defendant's guilt.'" While the "line between exculpatory evidence and simple inconsistent evidence cannot be clearly delineated," the "prosecutor does not have to develop evidence for the defendant [or] present every lead possibly favorable to the defendant."

Cathey v. State, 60 P.3d 192, 195 (Alaska App. 2002) (quoting State v. McDonald, 872 P.2d 627, 639 (Alaska App. 1994)).

Preston, 615 P.2d at 603 n. 24.

Frink, 597 P.2d at 166.

In ruling on the motion to dismiss the indictment, Judge Collins reviewed the videotaped interviews. After reviewing the interviews, she concluded that "T.B. was clearly unable to perceive facts accurately or relate facts intelligibly. T.B.'s demeanor and responses during each interview is that of an easily distracted child that would not be able to understand an oath and who could not be relied upon to accurately remember or relate factual events."

Judge Collins stated that "had [T.B.] testified before the grand jury, his testimony would almost certainly have been more confusing to the jury than helpful since, based on his interviews, he could not be trusted to accurately differentiate between reality and fiction." She concluded that T.B. was not competent to testify and that the State had "a duty to limit evidence presented to the grand jury to admissible evidence." Judge Collins also found that, considering T.B.'s videotaped statements in their entirety, T.B.'s statements were not exculpatory to Paulo.

Judge Collins cited Criminal Rule 6(r).

We have independently reviewed the videotaped statements. It is clear that Judge Collins did not abuse her discretion in finding that, based upon the videotaped interviews, T.B. was not a competent witness. Furthermore, Judge Collins did not err in concluding that T.B.'s "testimony would almost certainly have been more confusing to the jury than helpful" and that the videotaped statements were not exculpatory. We therefore affirm Judge Collins's decision denying Paulo's motion to dismiss the indictment.

AFFIRMED.

MANNHEIMER, Judge, concurring.

Under Frink v. State and subsequent cases, a prosecutor seeking an indictment from a grand jury is obliged to apprise the grand jurors of exculpatory evidence known to the State. The current appeal presents the issue of whether a prosecutor's duty to present exculpatory evidence to the grand jury includes a duty to present the out-of-court statements of a witness who is not competent to testify to the grand jury in person.

597 P.2d 154, 165-66 (Alaska 1979), interpreting Alaska Criminal Rule 6(q).

Alaska Criminal Rule 6(r) defines the scope of the evidence that may be presented at a grand jury proceeding. Rule 6(r)(1) states, "Evidence which would be legally admissible at trial shall be admissible before the grand jury."

Read literally, this sentence merely codifies the rule that all evidence that would be admissible at trial will likewise be admissible at a grand jury proceeding. However, the Alaska cases construing Criminal Rule 6(r) have interpreted this language as codifying the inverse proposition as well: i.e., any evidence that would not be admissible at trial is also not admissible at a grand jury proceeding (unless some other provision of law authorizes it).

See State v. McDonald, 872 P.2d 627, 638 (Alaska App. 1994); Stern v. State, 827 P.2d 442, 445-46 (Alaska App. 1992); Bright v. State, 826 P.2d 765, 769 (Alaska App. 1992); State v. Green, 810 P.2d 1023, 1027 (Alaska App. 1991); Boggess v. State, 783 P.2d 1173, 1176 (Alaska App. 1989).

Alaska Evidence Rule 601 bars the testimony of any proposed witness who is "incapable of communicating concerning the matter so as to be understood by the court and jury". In Paulo's case, the superior court found that four-year-old T.B. was not competent to be a witness under the standard codified in Evidence Rule 601. After viewing the two videotaped interviews of T.B., Judge Collins found that T.B. "was clearly unable to perceive facts accurately or relate facts intelligibly". This ruling is not challenged on appeal.

Instead of arguing that Judge Collins was mistaken and that T.B. was in fact competent to testify to the grand jury, Paulo takes the position that Judge Collins's ruling is irrelevant. Paulo argues that even though T.B. was not competent to testify at the grand jury hearing, the State was nevertheless obliged to apprise the grand jury of some of the out-of-court statements that T.B. made during the two interviews — because these out-of-court statements seemingly exculpate Paulo.

In other words, Paulo argues that even though T.B. could not lawfully have testified to the grand jurors in person, the State was obliged to present a hearsay account of what T.B. said during the interviews, because some of what T.B. said during those interviews could reasonably be construed to be "exculpatory".

As explained above, Criminal Rule 6(r) forbids a prosecutor from presenting inadmissible evidence to the grand jury. Here, the superior court found that T.B. was not competent to be a witness. This means that the prosecutor could not lawfully have called T.B. to testify in person at the grand jury hearing.

Conceivably, Alaska Evidence Rules 803 and 804 (the rules that define the exceptions to the hearsay rule) might allow the introduction of hearsay in certain circumstances even though the person who made the out-of-court statement is currently incompetent to testify. (I say "conceivably" because this issue has not been briefed.) However, Paulo advances no argument based on any provision of Evidence Rule 803 or 804.

Instead, Paulo's argument is based solely on the proposition that, if some of what T.B. said to the interviewers could reasonably be construed as "exculpatory", then the prosecutor was obliged to present those out-of-court statements to the grand jury, even though those statements were not admissible under any provision of the Alaska Evidence Rules.

Paulo's argument is not supported by any case law I could find. Court decisions and statutes from other states uniformly bar grand juries from relying on the testimony of witnesses who are not lawfully entitled to testify.

For instance, § 114-1 of the Illinois Code of Criminal Procedure governs the circumstances under which a defendant may seek dismissal of an indictment. Subsection (a)(9) of this statute provides that "the court may dismiss the indictment . . . upon . . . the [ground that] . . . [t]he indictment is based solely upon the testimony of an incompetent witness." ( See People v. Jones, 166 N.E.2d 1, 4 (Ill. 1960), holding that, for purposes of this statute, an "incompetent" witness is a witness who is disqualified by law, "such as one disqualified because of complete mental derangement".)

Likewise, North Carolina Statute § 15A-955(3) authorizes the dismissal of an indictment if "[a]ll of the witnesses before the grand jury on the bill of indictment were incompetent to testify".

In Lane v. Second Judicial Dist., Washoe County, 760 P.2d 1245 (Nev. 1988), the Nevada Supreme Court struck down an indictment because it was primarily based on the testimony of two witnesses who did not have personal knowledge of the subject matter of their testimony (and who were not otherwise authorized to testify as experts). The court explained,

[Under Nevada law], "[t]he grand jury can receive none but legal evidence, and the best evidence in degree, to the exclusion of hearsay or secondary evidence." N[evada] R[evised] S[tatutes] 172.135(2). The opinion testimony of two individuals, who were not present at the time of the alleged sexual assault, that the complainants consented to the acts was neither legal nor the best evidence. NRS 50.025 provides that to be competent to testify, a witness must have personal knowledge of the subject of his testimony. Thus, the two witnesses called by the deputy district attorney, who were not present at the time in question, were incompetent to testify as to the alleged victims' consent.

760 P.2d at 1257.

See also Ex parte Stiles, 958 S.W.2d 414, 424 (Tex.App. 1997), and State v. Sink, 685 S.W.2d 403, 405 (Tex.App. 1985), both of which are premised on the rule that it is improper for a grand jury to hear the testimony of an incompetent witness.

Moreover, I conclude that Paulo is mistaken when he asserts that some of T.B.'s statements can reasonably be viewed as exculpatory. It is true that, at various points in the interviews, T.B. asserted that Paulo was not in the room when the victim was injured, and that Paulo had done nothing to hurt the victim. Taken in isolation, these statements appear to be exculpatory. But the key phrase here is "taken in isolation".

Taking the interviews as a whole (and this Court has watched both videotapes in their entirety), the record clearly supports Judge Collins's conclusion that T.B. was incapable of presenting a coherent narrative and incapable of responding to questions in a meaningful manner.

During the interviews, when T.B. was questioned about how the victim came to be injured, T.B. often failed to respond. And when T.B. did respond to these questions, he often gave incoherent responses that did not answer the questions posed to him. Moreover, when T.B. did answer the interviewers' questions in a meaningful manner, his answers were often irreconcilably contradictory. For example, T.B. both asserted that his mother was present when the victim was injured and also denied that she was present.

In other words, as Judge Collins found, there is no reasoned basis for concluding that any single statement during these interviews, or any selected handful of statements, represents the truth of what happened or even T.B.'s honest recollection of what happened. T.B. was found to be incompetent precisely because he could not coherently describe what he observed or remembered of that incident.

For this reason, even though some of T.B.'s statements, taken in isolation, suggest that Paulo did not assault the victim, I conclude that these statements are not "exculpatory evidence" within the meaning of Frink and Criminal Rule 6(q).

PETER D. PAULO JR., Appellant, v. STATE OF ALASKA, Appellee.

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