Memorandum decisions of this Court do not create legal precedent.
Judge MANNHEIMER.
Seth Martin Timmer was convicted of third-degree assault for strangling his girlfriend. In this appeal, Timmer argues that he was prejudiced by the trial court's rulings regarding discovery and the trial court's denial of a related defense motion to continue the trial. Timmer also argues that the trial court erred when it allowed the State to introduce evidence of an incident where Timmer strangled another girlfriend. Finally, Timmer argues that the trial court committed plain error by allowing the prosecutor to comment (during final argument) on Timmer's decision not to take the stand at his trial.
For the reasons explained in this opinion, we conclude that none of these claims has merit, and we therefore affirm Timmer's conviction.
In May 2011, Timmer was living in Sitka with his girlfriend, Jessica Marthaller. In the early morning hours of May 6th, after Timmer had been drinking and Marthaller was trying to sleep, the two of them got into a physical altercation. Marthaller began the physical encounter by slapping Timmer; Timmer responded by grabbing Marthaller by the throat — squeezing until Marthaller could no longer breathe.
At one point, Timmer relaxed his grip and Marthaller was able to yell at him to get off of her. But Timmer then grabbed Marthaller by the throat again.
Friends of Timmer's — an adult couple and their two children — were staying with Timmer and Marthaller in their apartment. One of the adults, Robert Mayville, heard the altercation and heard Marthaller yelling. Mayville went to the door of Timmer and Marthaller's bedroom, and he heard two slaps. Mayville then opened the door to the bedroom and looked in. According to his later testimony, Mayville did not see Timmer strangling Marthaller, nor did he see Timmer on top of Marthaller. In other words, Mayville testified that he neither heard nor saw Timmer assault Marthaller.
When Mayville entered the room, Timmer began to argue with him, questioning his right to enter the bedroom. As the two men argued, Marthaller left the apartment and went to her father's house. There, she told her stepmother about the assault. Later that morning, Marthaller went to the Sitka police station and reported the assault.
Sitka Police Sergeant David E. Johnson interviewed Marthaller, and he took photographs of her neck. These photographs showed that Marthaller's neck was red, and there appeared to be small injuries to the tissues. Marthaller later testified that, as a result of the strangling, there were "a couple of days [when] it was very, very hard to swallow, to cough, or [to] sneeze", and that her throat hurt if she laughed. In addition, her voice was hoarse for a couple of days.
Based on this incident, Timmer was charged with third-degree assault under AS 11.41.220(a)(1)(B) — recklessly inflicting physical injury by means of a dangerous instrument (i.e., using his hands to strangle Marthaller).
Several months prior to Timmer's trial, the prosecutor gave notice that, pursuant to Alaska Evidence Rule 404(b)(4), the State intended to introduce evidence that Timmer had committed two acts of domestic violence against a former girlfriend, C.C. In both instances, these acts of domestic violence consisted of Timmer's strangling C.C. or grabbing her by the neck. The superior court granted the State's motion and ruled that C.C. would be allowed to testify about these assaults.
On March 1, 2012, four days before Timmer's trial was scheduled to begin, Timmer's attorney asked the superior court to order the State to disclose (1) all audio reports and photographs concerning these two prior incidents; (2) information concerning a comment that the prosecutor had made about "other witnesses" who would purportedly testify that Robert Mayville might have a reason to "slant" his testimony in Timmer's favor; and (3) information regarding a recent interview with Marthaller's stepmother.
In conjunction with requesting this discovery, Timmer's attorney asked for a continuance of the trial, both to give the prosecutor time to produce the requested materials and to allow the defense attorney to analyze the new materials and make tactical decisions based on these materials.
The parties came to court the next day (March 2nd) to present their arguments regarding these discovery requests and the defense request for a continuance. But at this hearing, Timmer's attorney told the court that the State had already provided him with all the relevant information in its possession; the defense attorney assured the court that "the State has answered my request for discovery."
The defense attorney stated that he was not withdrawing his request for a continuance, but he offered no explanation of why he still needed one.
The superior court ruled that the defense discovery requests were moot, given what had transpired at the March 2nd hearing. The court also denied the defense attorney's request for a continuance.
On appeal, Timmer argues that the superior court committed error by denying his discovery requests "simply to preserve [the] trial date". This is a mischaracterization of what occurred. The superior court denied the discovery requests as moot — because Timmer's attorney assured the court that the discovery had already been made.
To the extent that Timmer now asserts that his discovery requests were not moot, that argument is not preserved.
Turning to Timmer's related request for a continuance of the trial, the superior court denied this request for two reasons: First, Timmer had already received a lengthy continuance of the trial. Second, Timmer's attorney had been given notice six months earlier that the State intended to introduce evidence of Timmer's prior bad acts, and the defense attorney had received the police reports concerning these prior incidents almost a month earlier (on February 6th).
In the absence of a claim that a judge misunderstood the material facts or applied the wrong law, the granting or denial of a continuance is within the discretion of the trial judge. Thus, to prevail on his claim of error, Timmer must show that the superior court abused its discretion.
In his brief, Timmer mentions the fact that the superior court denied his request for a continuance, but he never explains why the court might have been wrong to do so. Timmer's argument of this point consists of a single conclusory assertion (an assertion contained in a section heading) that the court "erred in denying [his] ... request for [a] continuance". And Timmer offers nothing to show that the denial of his request for a continuance prejudiced the preparation of his defense or otherwise prejudiced his rights. Such briefing constitutes a waiver of any claim of error.
During jury selection, one of the prospective jurors stated that he could not be impartial with regard to Marthaller because he "[had] just remembered" that a friend of his once said that Marthaller had falsely accused him of assault some ten years before. But the prospective juror also stated that he knew none of the facts personally — that his knowledge of this alleged event was just "word of mouth".
When jury selection was complete, Timmer's attorney asked the superior court to compel the State to produce any and all information that might exist pertaining to whether Marthaller had ever made any prior accusations of assault. In other words, the defense request was not limited to the alleged accusation that the prospective juror had mentioned, nor was it even limited to false allegations. When the court questioned the defense attorney regarding all this other information included within his discovery request, the attorney was unable to explain how any of this information was relevant to the defense case, or how it would be admissible at trial.
With regard to the prospective juror's answers on voir dire, Timmer's attorney indicated that he already knew the name of the prospective juror's friend, and he told the court that there had been "attempts" to contact this friend. But the defense attorney did not elaborate on those "attempts". And even though the prospective juror suggested that he could call his friend and inquire about the earlier incident, Timmer's attorney did not ask the court to pursue the juror's offer.
After hearing all of this, the superior court denied the defense attorney's discovery request. The court pointed out that, as yet, there was no admissible evidence that Marthaller had ever previously accused anyone of assault, much less accused them falsely. The court additionally noted that, during the prospective juror's voir dire, the juror testified that he did not think the police had been involved — indicating that there would be no police report. Timmer's attorney offered no information to the contrary.
Given this record, Timmer has not shown that the superior court's decision was clearly untenable or unreasonable. We conclude that Timmer has failed to show that the superior court abused its discretion when the court denied his discovery request.
As we have already explained, the superior court granted the State's request to introduce evidence that Timmer had committed two acts of domestic violence against a former girlfriend, C.C. In both instances, Timmer was intoxicated, he got into an argument with C.C., and he then assaulted her — either by strangling her or grabbing her by the neck. This evidence was introduced under Alaska Evidence Rule 404(b)(4), which states that "[i]n a prosecution for a crime involving domestic violence ..., evidence of other crimes involving domestic violence [committed] by the defendant against the same or another person ... is admissible."
This Court's decision in Bingaman v. State, 76 P.3d 398 (Alaska App. 2003), contains an extensive discussion of the admissibility of "other crimes" evidence under Alaska Evidence Rules 404(b)(2)-(4). We laid out a number of factors that a trial judge should consider when the State seeks to introduce evidence under these provisions, and we also emphasized that a trial judge should weigh the probative value of this evidence against its potential for unfair prejudice under Evidence Rule 403. Bingaman, 76 P.3d at 415-16.
When the superior court ruled on the State's motion to introduce evidence of Timmer's earlier assaults on C.C., the court discussed the Bingaman factors at great length. The court concluded that Timmer's assaults on C.C. were "certainly ... relevant" — that these earlier assaults were "eerily similar" to conduct alleged in the present case. The court also concluded that it was unlikely that evidence of these two prior acts would cause the jury to decide the present case on improper grounds, or distract them from the elements at issue in the present case.
Ultimately, the superior court concluded that the evidence of the prior assaults was directly relevant, that the evidence was more probative than prejudicial, and that any potential for unfair prejudice could be adequately handled by a jury instruction that cautioned the jurors about the limited purpose of the evidence. These conclusions are amply supported by the record, and Timmer has not shown that the court abused its discretion by allowing the State to introduce this evidence.
Timmer chose not to take the stand at his trial. However, the jury heard evidence that, when Timmer was interviewed by the Sitka police, he offered a version of events that contradicted Marthaller's testimony at trial.
Timmer's defense in this case was that Marthaller was not truthful when she testified that Timmer assaulted her. At trial, there was significant evidence that (viewed in a light favorable to Timmer) supported this defense. And during the defense attorney's closing argument, he argued at length that there were good reasons to conclude that Marthaller was not a credible witness. At one point, the defense attorney characterized Marthaller's version of events as a "fairytale".
The prosecutor, too, viewed the case as boiling down to the question of Marthaller's credibility. During the opening portion of the State's summation, the prosecutor argued that Marthaller's version of events was the credible one. The prosecutor acknowledged that Timmer's statement to the police contradicted Marthaller's testimony. But the prosecutor urged the jurors to consider, when they weighed the credibility of these competing versions of events, that Marthaller had taken the stand and had submitted to cross-examination.
When the prosecutor made this argument, she expressly reminded the jurors that Timmer was under no obligation to testify at trial — and that the jurors were forbidden from holding Timmer's decision against him. Nevertheless, the prosecutor asked the jurors to consider that Timmer's statement to the police was not testimony.
Timmer's attorney did not object to any of the prosecutor's remarks on this subject. And the prosecutor did not return to this subject when she gave her rebuttal summation (even though, as we have already explained, the defense attorney directly attacked Marthaller's credibility during his closing argument).
On appeal, Timmer argues that the prosecutor's remarks constituted plain error — an impermissible adverse comment on Timmer's decision not to take the stand at trial. But Timmer's entire argument of this point consists of two sentences: an assertion that the prosecutor's argument "amounted to a comment on Mr. Timmer['s] failing to subject himself to cross-examination", followed by a conclusory assertion that such arguments "[are] clearly improper and should result in reversal of the resulting conviction."
The issue is substantially more complex than that. The question is whether, taking the prosecutor's remarks in context, Timmer has shown either (1) that the prosecutor "manifestly intended" her remarks to be understood as an adverse comment on Timmer's failure to testify, or (2) that the prosecutor's remarks "[were] of such character that the jury would naturally and necessarily take [them] to be [an adverse] comment on the failure of the accused to testify."
In Hill v. State, 902 P.2d 343 (Alaska App. 1995), this Court addressed a situation very similar to Timmer's. The defendant in Hill had made an out-of-court statement to the police that contradicted the State's evidence. During final argument, the prosecutor summarized the State's evidence, and then the prosecutor turned to Hill's version of events and argued why Hill's out-of-court statement should not be considered credible.
The prosecutor emphasized that Hill was not under oath, nor was he cross-examined, when he gave his statement to the police — in contrast to the testimony given by the State's witnesses. The prosecutor reminded the jurors that Hill had a constitutional right not to testify. But the prosecutor pointed out that a primary reason for subjecting witnesses to cross-examination under oath was to test the truth of their testimony.
This Court held that the prosecutor's argument was proper. We noted that the prosecutor did not suggest that Hill's failure to take the stand indicated that he was guilty or that he had something to hide. Rather, the prosecutor asked the jurors, when they weighed the credibility of Hill's out-of-court statement, to consider the fact that Hill was not under oath and was not cross-examined. We concluded that this argument, when viewed in context, "[permissibly] focused ... on elements rendering Hill's out-of-court statement worthy of doubt." The argument "was not manifestly intended as an adverse comment on Hill's failure to testify; nor would the jury naturally and necessarily have taken it as such." Hill, 902 P.2d at 345.
In Timmer's brief to this Court, he mentions the Hill decision — but only in a string citation that purports to be authority for his conclusory assertion that the prosecutor's argument in his case was improper. In fact, Hill is authority for the opposite conclusion — for the conclusion that the prosecutor's argument was permissible.
Given the holding in Hill, and given the similarity between the facts of Hill and the facts of Timmer's case, Timmer has failed to show that the prosecutor's argument to the jury amounted to plain error.
The judgement of the superior court is AFFIRMED.
