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Humphrey v. State2/3/1999
3973 NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited for any proposition of law, nor as an example of the proper resolution of any issue.
Trial Court No. 3AN-S96-9055CR
MEMORANDUM OPINION AND JUDGMENT
No. 3973
Appeal from the District Court, Third Judicial District, Anchorage, Sigurd E. Murphy, Judge.
A jury convicted Robert Humphrey of fourth-degree assault and third-degree criminal mischief, both class A misdemeanors, and acquitted Humphrey of another count of fourth-degree assault. Humphrey appeals only his assault conviction. We affirm.
On November 22, 1996, Jamie Jensen, a radio dispatcher for the Alaska State Troopers, received a 911 telephone call reporting that her boyfriend was breaking into the female caller's home. The 911 tape was played for the jury; on it, the caller, R.B., was screaming that her boyfriend was at that time breaking in the door, and sounds of wood splintering could be heard in the background. Jensen dispatched two troopers, including Alaska State Trooper Jeffrey Slamin, to the scene of the reported domestic violence. When Slamin arrived at the residence, he heard muffled crying and arguing coming from a bedroom; as Slamin approached, Humphrey and R.B. came out of the bedroom. Slamin interviewed R.B., who was crying and appeared upset and to have been drinking, for almost an hour. Without objection, photographs that Slamin had taken of the interior and exterior of the house and of R.B.'s apparently fresh bruises and cuts were admitted as exhibits for the jury. Although Slamin did not testify to the contents of the interview, after the interview Humphrey was arrested for assaulting both R.B. and M.B. (R.B.'s six-year-old son) and for criminal mischief for damaging a door.
R.B. did not testify at the trial. M.B. testified (after some prompting) that he had seen Humphrey on top of R.B. in the bathtub, both of them naked and fighting; that R.B. had told M.B. to call 911; and that Humphrey had then gotten up to grab M.B. In addition, R.B.'s father testified regarding his repairs to the door frame and Humphrey's paying him for the job.
At the Conclusion of the trial, the jury convicted Humphrey of assault against R.B. and of criminal mischief, but acquitted him of assault against M.B.
On appeal, Humphrey first contends that District Court Judge Sigurd E. Murphy should have suppressed evidence or dismissed the case because the victim, R.B., did not testify and so Humphrey was unable to confront her.
This was Humphrey's second trial for these offenses; R.B. had testified at a first aborted trial, in which a mistrial had been declared because R.B. had asserted her Fifth Amendment right against self-incrimination. The prosecutor had announced at the beginning of the second trial that the state would not call R.B. as a witness. Humphrey's trial attorney then moved that the case be dismissed because the state had not granted immunity to a critical witness who had asserted her right against self-incrimination and refused to testify, citing State v. Echols, a case in which this court had affirmed such a dismissal. The prosecutor confirmed that the state would not grant immunity to R.B. Humphrey's attorney then stated, as an offer of proof, that if R.B. were granted immunity, she would testify that both R.B. and Humphrey had been drinking and using drugs, that R.B. in a confused state had suddenly decided to drive M.B. to the dent
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