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Freeman v. State3/27/2002
Rule 404(b)(4) allows the state to introduce evidence of other "crimes involving domestic violence" committed by the defendant. Alaska Statute 18.66.990(3) defines "crimes involving domestic violence" as a crime against a person under AS 11.41 committed by a household member against another household member. Given AS 18.66.990's definition of "crimes involving domestic violence," it appears that Judge Link properly could have concluded that Freeman committed the crime of reckless endangerment.
Reckless endangerment is when a person "recklessly engages in conduct which creates a substantial risk of serious physical injury to another person." Freeman admitted he fired a pistol in a house that he knew contained people. J.I. was one of the people present. While he testified that he did not point the weapon at anyone, he admitted he fired the weapon to quiet everyone down. Freeman apparently was intoxicated at the time. We believe this conduct fits within the definition of reckless endangerment.
Assuming that Freeman committed the crime of reckless endangerment and that this was a crime involving domestic violence, a substantial question still exists whether admission of this evidence would be proper under Evidence Rule 403. Rule 403 directs trial courts to exclude evidence where the unfair prejudice outweighs the probative value of the evidence. But we do not need to resolve this question. Our review of the record convinces us that the evidence against Freeman was strong. We believe it is extremely unlikely that evidence he fired a gun at the stereo had any appreciable effect on the jury's verdict. We accordingly conclude, if admission of this evidence was error, the error was harmless.
The convictions are AFFIRMED.
MANNHEIMER, Judge, concurring.
I concur that Freeman's conviction should be affirmed for the reasons explained in the majority opinion. I write separately to address one point: Freeman's claim that he should have been allowed to impeach Martin's credibility by presenting the testimony of therapist Cheryl Toppa.
According to Freeman's offer of proof, Toppa would testify that during one or more therapy sessions, J.I. (Martin's mother) expressed the belief that Martin had lied to her about various matters. Even if this assertion had been true, the proposed evidence was inadmissible for two reasons.
First, it was hearsay. Freeman wanted Toppa to testify that she heard J.I. make certain statements, and Freeman wanted to introduce J.I.'s statements for the truth of the matter asserted (that Martin was untruthful). The proposed testimony fell squarely within Evidence Rule 801(c)'s definition of hearsay, and the testimony was therefore barred by Evidence Rule 802.
Second, the proposed testimony was protected by the psychotherapist-patient privilege codified in Evidence Rule 504(b). Toppa was a nurse clinician who was assisting psychiatrist Robert Wald in evaluating Martin. J.I. made statements to Toppa to aid the diagnosis and treatment of her son. Evidence Rule 504(b) declares:
A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of diagnosis or treatment of the patient's physical, mental or emotional conditions ... between or among the patient, the patient's physician or psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the physician or psychotherapist, including members of the patient's family.
In this case, Martin was the patient, Toppa was a nurse who was participating in Martin's diagnosis or treatment under the direction of Dr. Wald
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