In keeping with prior travel posts, I am blogging now from the Anchorage airport, on my way to NCDC. It is very nice of Alaska airlines to provide wireless internet service, especially since I'm behind on giving court opinion updates. There have been several opinions, including a rather substantial one today from the Alaska Supreme Court.
The first decision is State v. Koen, about search warrants. Alaska troopers had probable cause to believe that Koen had child porn on his computer, so they went and got a search warrant to search the computer. The only problem is that there was no discussion of where the computer with child porn was located. They merely said, "Koen's got child porn on his computer. Give us a search warrant for the first house on the right on Green Timbers Drive." There was nothing to connect the computers and Koen's residence with the house on Green Timbers drive.
The State argued that it was reasonable to infer that the first house on the right on Green Timbers Drive was in fact Koen's house. The court agrees that this is reasonable, but there are other reasonable inferences that would mean that the computer was somewhere else. A record for a search warrant cannot be supplemented by off-the-record testimony. This record does not tie the house with the child porn, so the evidence obtained from the search warrant was suppressed. This is a standard application of good case law.
The next decision is State v. Cameron. In Cameron, the Court of Appeals dealt with what a prosecutor needs to do to fulfill her duty to provide exculpatory evidence to the grand jury. Cameron, through counsel, advised the DA that he would like to testify before the grand jury. The DA did not call Cameron to testify. Cameron moved to dismiss, arguing that, while he had no right to testify, when he indicated he wanted to testify, it was the grand jury, not the DA, who should make the decision about whether he testifies. Trial court agreed and dismissed the indictment. Court of Appeals disagrees.
First, they find that the exculpatory evidence that must be provided to the grand jury is not mere inconsistent statements or evidence that helps a defendant. Rather, it is evidence that tends to negate guilt. The evidence proposed would not tend to negate guilt per se. Rather, it is the defendant's version of events. The court believed this was a better area for a trial jury than a grand jury. To allow this would essentially to make the grand jury proceeding a mini-trial. The COA found other jurisdictions that have followed this rule about a defendant's testimony.
The upshot is that while a DA has to provide exculpatory evidence to the grand jury, absent extremely unusual circumstances, determined on a case by case basis, the rule about exculpatory evidence before the grand jury does not mean that a defendant automatically gets to testify.
The next case is an interesting one: Snyder v. State. Snyder was charged with sex assault two for allegedly sexually penetrating someone who was incapacitated (this means she was blacked out). The complaining witness talked about how she was scared of what Snyder had done to her. Snyder said that the sex was consensual. At trial, Snyder wanted to call 2 witnesses who would say that they saw the complaining witness come into the store where Snyder worked. She interacted with Snyder and showed no sign of fear. Trial court excluded the evidence, saying it was no particularly probative.
Court of Appeals disagreed. They recognized that similar testimony had been previously excluded, but they distinguished the cases. In the previous case, Kitchens v. State, 898 P.2d 443 (Alaska App. 1995), the defendant wanted to introduce evidence about how the complaining witness was "carefree" when discussing a return to the city where she had been sexually assaulted. The trial court found that evidence unduly speculative. The court of appeals disagreed and held that the trial court erred in excluding the evidence. The court of appeals, though, determined that the error was harmless because the defendant had confessed and he was able to cross-examine the complaining witness about the demeanor evidence he had wanted to present.
There was no such corroboration or ability to cross-examine in this case. As such, it was prejudicial error on the part of the trial court. Snyder's conviction was reversed.
The last case, decided today, was not really an opinion but an order. The trial court, Court of Appeals, and the Supreme Court has been dealing with the sentencing of Peter Michael for the past several years. There is a long procedural history, but I won't bore you (too late! I hear from the back). In Michael v. State, the Supreme Court decided what standard of appellate review was required to prove aggravators and mitigators for criminal sentencing.
What's that you say? Blakely did away with aggravators and mitigators? Yes, sort of. It used to be that in Alaska, a person sentenced to a presumptive term could only have that sentence increased if the court found that certain aggravators had been proven. For example, if the presumptive term is eight years, then the court could not tack on any time, even suspended time, unless certain aggravators were proven to the trial court. Then, along comes Blakely. In response to Blakely, the Alaska legislature amended the sentencing scheme to allow pretty much the same sentencing as before by giving judges discretion to sentence within a certain range. So whereas before, the court could only give someone more than 8 years, even if the excess was suspended, if aggravators were proved, now, the court can sentence between 8 and 12 years, even if no aggravators are proved. Aggravators and mitigators can now be considered for where in the discretionary range a sentence should fall. Thus, Blakely will not change this order.
Part of the confusion has come in that appellate courts revise sentences on a clearly mistaken basis. So, everybody assumed that aggravators and mitigators would be examined using the same standard. Not so says the Supreme Court. Because aggravators and mitigators are a combined question of law and fact, they are to be reviewed de novo. This is a rather significant and good development in Alaska sentencing law. It will certainly affect advice I give clients when determining whether to appeal.
That should catch me up on outstanding Alaska criminal appellate decisions. I am going to be boarding in a few minutes so blogging will resume later. In the meantime, if you are ever in an airport, I would highly suggest that, if at all possible, you make some effort to join the Board Room or whatever executive area (for lack of a better term) the airline offers. The seats and amenities are substantially nicer and if you have to spend any significant time sitting in airports, it is worth doing.