Wood v. State

SINGLETON, Judge,

dissenting.

I agree with the court’s resolution of most of the issues in this case. I am satisfied, however, that if Wood requested an opportunity to cross-examine M.G. regarding her showing him nude photographs of herself (published in a national magazine), and disclosing to him that she had acted in pornographic movies and “live” sexual performances, then the trial court abused its admittedly great discretion in precluding such cross-examination. See, e.g., Garner v. State, 711 P.2d 1191, 1197 (Alaska App.1986) (Singleton, J., concurring and dissenting) (recognizing deference appellate courts should give to trial courts’ broad discretion). The difficult question for me is whether Wood ever specifically requested such an opportunity.

The majority is apparently convinced that Wood was only interested in offering extrinsic evidence of M.G.’s professional background in order to suggest that she was the kind of woman who readily consented, indeed pursued, sexual relations with passing acquaintances. If this were the offer of proof, I agree that the trial court was within its discretion in rejecting *368it. See A.R.E. 404. I also agree with the trial court and the majority that the fact that M.G. engaged in this conduct, standing alone, is of limited significance and, but for her disclosure to Wood, could properly have been excluded. Wood was, however, entitled to cross-examine M.G. regarding her relationship with him, in order to show that the relationship was sexual, not platonic.

While the trial court is correct that Wood and his witnesses described an ongoing sexual relationship and that Wood predicated his understanding of M.G;’s behavior on that relationship, it must be remembered that M.G. denied any sexual involvement with Wood whatsoever.1 In her testimony their prior relationship was purely platonic. She testified that she had made it clear to him that under no circumstances did she wish to have sexual relations with him. In contrast, Wood testified that she, not he, instigated a sexual relationship and that she did so within a week of her having, in a provocative way, broached the subject of her prior “modeling” experiences. Apparently, she not only .mentioned having starred in pornographic movies but, if Wood is to be believed, described to him in graphic detail the nature of her performances.

Given M.G.’s testimony, that she had absolutely no sexual interest in Wood whatsoever, I believe he was denied his constitutional right to confront her when he was prevented from cross-examining her regarding the conversations in question. Let me stress that I am not suggesting that counsel should have been permitted to cross-examine M.G. about the circumstances surrounding her acting and modeling, or the feelings that those activities generated in her. A fortiori, I am not suggesting that Wood should have been permitted to introduce extrinsic evidence regarding M.G.’s prior activities. The trial court could well have precluded extrinsic evidence and restricted cross-examination to the conversation between M.G. and Wood. Failure to permit that limited cross-examination, in my view, denied Wood a fair trial.2

While the issue is close, I do not believe that Wood abandoned the right to cross-examine M.G. by concentrating on seeking court permission to offer extrinsic evidence. See Richey v. State, 717 P.2d 407, 411-13 (Alaska App.1986) (Singleton, J., dissenting) (criticizing a finding of waiver of cross-examination under similar circumstances).

. Had M.G. conceded a past sexual relationship, but contended that she had broken up with Wood, I would agree that the evidence was properly rejected. Let me stress that I am not suggesting that a prior sexual relationship would excuse Wood’s beating an unwilling former lover into submission. My point is that while Wood admitted striking M.G., he stated that they had intercourse at a later time under circumstances in which he could reasonably believe that she was not acquiescing out of fear.

A jury might find this testimony more believable if they thought, as Wood testified, that he and M.G. had a prior sexual relationship in which arguments, albeit never violent ones, were frequently settled in bed. Conversely, if the jury believed M.G. that she had never willingly had sexual relations with Wood, a jury might find her injuries conclusive proof that she did not consent to sexual relations on April 11.

. Henry Bain testified as a witness on Wood’s behalf at the hearing on the state’s motion for a protective order. Bain said that he furnished M.G. accomodations, at Wood’s request, when she was having difficulty with her boyfriend. Bain indicated that M.G. brought up her acting and modeling career and showed him provocative pictures. He also testified that she initiated sexual contact with him. However, it is not clear that the two events, i.e., showing the pictures and suggesting sex, occurred at the same time. If they did, the jury might infer that M.G. used these activities as a prelude to, or ploy in aid of, seduction. This inference would strengthen Wood’s testimony that their relationship was sexual.

The trial court and the majority place great emphasis on what they take to be Wood’s concession that M.G.’s sexual activities did not influence Wood’s perceptions of M.G. I believe this statement is taken out of context. Wood testified that he was in love with M.G. and in this sense her past behavior did not influence his opinion of her, i.e., make him like her less. Wood never suggested that her actions did not lead him to believe that she was interested in him sexually; the whole tenor of his testimony indicates otherwise.