Alaskablawg

Court Opinions

The Alaska Court of Appeals and Supreme Courts have not issued any written decisions for the last few weeks.

Court Opinions

There were three court opinions issued by the Court of Appeals last week. The first, Greist v. State, deals with Blakely, again. The Alaska Court of Appeals has had a slew of cases recently dealing with Blakely. In this one, they decided that since Blakely excludes prior criminal conduct from what which must be submitted to the jury, the aggravator of a prior juvenile record that would count as a felony falls under this exception. This is just a reiteration of Edmonds v. State (filed July 29, 2005 and is likewise a reported decision).

Again dealing with Blakely, the Court of Appeals decided Simon v. State. In Simon, the defendant pled to a reduced sex assault charge and agreed to a sentence of a third offender, 3 - 5 years in this case. The court gave him 5 years to serve, nothing suspended. Alaska courts cannot give someone the maximum punishment unless they are a 'worst offender'. Siimon argued that whether he was a worst offender should have gone to the jury. COA disagrees, saying that he had specifically waived any Blakely argument (his plea came 6 weeks after Blakely); he had anticipated the possibility of his being sentenced to 5 years to serve. If his attorney had argued about Blakely, the deal could have been pulled off the table. Also, he had to concede some aggravators as part of the plea. Those would have made him a 'worst offender' and justified the 5 year sentence.

The last case is a lot more interesting. In State v. Gonzalez, Mr. Gonzalez was suspected of sexually abusing a young child in 1992. The State conducted an investigation and Mr. Gonzalez left Alaska, heading to Florida. He returned in 2002. In the interim, the State lost several pieces of evidence, such as tape recordings of witnesses, etc. When the State discovered he had returned, they filed charges based on the 1992 charges. Gonzalez argued that the charged should be dismissed for pre-indictment delay. Trial court agreed and the State appealed.

This case is important for a couple of reasons. First, motions to dismiss are reviewed on an abuse of discretion standard. Second, the mere passage of time and resulting loss of memory is insufficient to give cause for dismissal under Alaska law. This is because the loss of memory benefits the defendant just as much as the State. As such, the defendant has to show actual prejudice. In this case, he showed that several interviews that were potentially exculpatory were lost. Since the trial court did not abuse its discretion, the motion to dismiss was granted. This is a case involving good facts and also a good review of the law regarding pre-indictment delay in Alaska. Mark this case. It is a good win for Dan Lowery of the Public Defender Agency.

Bail in Alaska

There was also recently a very important 9th Circuit decision, United States v. Scott. Mr. Scott was arrested for drug charges in California. He was granted bail and as part of his release, the court required that he submit to urine test to show he was not using drugs. Someone came to his house to test him and he turned up positive for meth. So, they arrest him and search his house, finding a shotgun. He had a prior felony so he is charged in federal court as a felon in possession. 9th Circuit holds that you can't condition somebody's release upon waiving their 4th amendment rights. There is a big difference between pre-trial and post-trial release, i.e., parole or probation, because post-trial release involves somebody who's already been convicted. The 9th Circuit Blog, in a post by Steve Kalar, a friend of mine, has a good rundown of the decision here.

This case is huge for Alaska. There are only a few communities that really have any sort of bonding agencies that cover them: Anchorage, Fairbanks, and Juneau. Kenai and Palmer get some coverage out of Anchorage, and while those areas cover a great deal of the population, there are realistically no bail agencies out of Barrow, Nome, Kotzebue, Bethel, Dillingham, Unalaska or Kodiak. Imagine a $1500 bail. No bail agency's going to take only $150 to cover a bail like that when they would have to spend a minimum of $350 to go out to the community to recover a bail jumper. So, Alaska courts impose what is known as a 'third party custodian' and also performance bonds. This means that people have a court-ordered babysitter and that they have to follow certain conditions, such as no drinking, etc.

Well, it is going to be really hard to justify those searches after Scott. It's been a while since I've had a bail hearing (most of my clients are charged with various forms of murder. The last bail hearing the court reduced the initial $500,000 bail to $150,000). If my clients could afford that bail, they would not get me as a lawyer. Nonetheless, I would really like to see Alaska lawyers start to challenge these bogus bail conditions with Scott.

This case has some great language about the "special needs" required for a blanket search and general law enforcement needs most emphatically do not qualify as "special needs". Believing that someone is more likely to commit a crime because he has already been charged is 1) erroneous, and 2) not covered under special needs. As such, it's unconstitutional.

Read Kalar's take on it and read the decision. If you're from Alaska, print the decision and give it out to everybody, court, DA, client, court clerk, whoever, at your next bail hearing.

Court Opinions

It's been a while since I've posted (explanation will be posted in a bit) so I thought I would review recent Alaska cases. There's also a very important 9th Circuit case I want to talk about separately. So here they are:

In McDole v. State, Mr. McDole was convicted of theft for unlawfully receiving unemployment benefits. There were two issues in the case. The first dealt with whether he was a first or second felony offender for presumptive purposes. In Alaska, a person has to be off probation for ten years before prior felonies do not count for presumptive purposes. So, if you're convicted of a felony on 1/1/2006 and spend 2 years on probation, a conviction for any crime until 1/1/2018 will mean that you are a second felony offender for presumptive purposes. This means you get a) a higher sentence, and b) a loss of discretionary parole.

McDole was unconditionally discharged from probation in 1991. The state charged him with one aggregate count of felony theft. The thefts started in June, 2000 and went through 2002. McDole argued that since some of the thefts occurred in 2002, after the 10 years was up, he should not be considered a second felony offender for presumptive purposes. Court of Appeals doesn't buy it. The thefts started well before the October, 2001, date when the 10 year period would expire, so he's a second felony offender.

He also argued that the court erred by not sending an uncontested aggravator (history of similar conduct) to the jury. Court finds that this is a procedural error that was not disputed and so its analyzed under plain error (see Milligrock v. State, 118 P.3d 11 (Alaska App. 2005), applying plain error to undisputed aggravators). So, no relief for Mr. McDole under Blakely.

Next is Grossman v. State. Mr. Grossman was convicted of second degree murder for beating a fellow to death. He was sentenced to 99 years imprisonment. Grossman argued that the instructions regarding accomplice liability were flawed. Accomplice liability is a little complicated in Alaska. In order to convict someone as an accomplice, they must aid another in committing the crime "with the intent to promote or facilitate the commission of the offense." This means that the person convicted as an accomplice must have acted with the same mens rea as the principal. Under the murder 2 theory here, the state had to prove that Grossman intended to cause serious physical injury (and actually caused death) or he behaved with "extreme indifference to the value of human life".

Grossman's argument is that in the main case on this point, Riley v. State, 60 P.3d 204 (Alaska App. 2002)(ed. - essential reading for a study of accomplice liability), the Court had discussed conduct. He had committed only one act. Thus, according to Grossman, Riley requires more than 1 act and the jury instruction allowed a conviction for only one act. Court of Appeals doesn't agree. They hold that you can be convicted as an accomplice for only one act.

Grossman also argues his sentence was wrong based on Blakely. Problem is, murder 2 has a wide range of possible sentences, including 99 years. No aggravators or mitigators apply in murder sentences (including murder 2), so there was nothing for the court to send to the jury. This is complicated a little by an Alaska case, Page v. State, 657 P.2d 850 (Alaska App. 1983), establishing a 20-30 year benchmark guideline for murder 2 cases. COA holds that a common-law benchmark is not the same thing as a statutorily prescribed sentence. As such, Blakely doesn't apply.

Court Opinions

The Court of Appeals has released a few opinions in the past couple of weeks. Here's a recap:

In Moore v. State, the Court of Appeals dealt with the effect of a prior illegal search upon future searches. Some cops, including University police (the case is unclear why University cops in particular went to Moore's house) and a State Trooper, went to Moore's house during a child welfare check. These occur when the Office of Children's Services investigate reports of harm to a child. The cops provide protection. The University cop looks into a shed on the back of Moore's property and found a meth lab. He goes to tell the trooper, who is standing in front of the house. The trooper wants permission to search the house, based in part on what he describes as iodine stains on Moore's hands. Moore says he's a smoker.

The Trooper tells Moore that this is not true. He says that they have already looked in the shed and found a meth lab, so Moore admits he's cooking meth and consents to a search. He is indicted and challenges the search. Trial court finds that the search of the shed was illegal (no duh!), but then finds that the iodine on Moore's hands and the officer's smell was sufficient to give cause to request a search.

The Court of Appeals disagrees. A prior illegal search presumptively taints a related consent to search and there was nothing to break the causal connection between the illegal search and the consent. To allow a search in these instances, the government must show that the subsequent search or consent is insulated from the illegal act. Otherwise, the taint is presumed. The conviction was reversed.

in Greist v. State, the Court of Appeals continues to deal with the fallout from Blakely. Courts in Alaska can aggravate a felony sentence if the defendant has a juvenile conviction for an offense that would have been a felony if the defendant had been an adult. Greist's sentence was aggravated on this basis and he appealed, citing Blakely.

Not so fast, says the Court of Appeals. Even under Blakely, the jury does not have to find prior convictions beyond a reasonable doubt to aggravate a sentence. This clearly falls under this exception, so no error.

Court Opinions

There was one opinion issued yesterday, Ned., Jr., v. State. Mr. Ned was convicted of manslaughter and he appealed, raising three issues. The first is whether he was in custody for Miranda purposes. The second is whether his sentence violates Blakely. The third is whether the court exceeded its authority in the restitution order.

As far as Miranda, the court notes that Ned was questioned at his home by one officer. He was not in any restraints and this occurred in his own home. He volunteered to talk with one officer while another came in and out of the room. As such, he was not in custody for Miranda purposes.

The Court also rejects Ned's Blakely claim. He received a sentence of ten years with three suspended, seven to serve, for the DUI manslaughter. 7 years is the presumptive for DUI manslaughter. The court relied upon an aggravator that he used a dangerous instrument, the car, to add the suspended three years. The Court of Appeals holds that seven years is the presumptive sentence for DUI manslaughter (as opposed to 5 years for manslaughter in general). Blakely is thus not triggered because he was not sentenced to time to serve above the presumptive. However, the Court notes that the trial court relied on an aggravator that is contained in the statute. In other words, he got 7 years instead of 5 because it was a DUI homicide, and then the court increased the sentence because he used a car. This is impermissible double-dipping, if you will, prohibited by AS 12.55.125(c)(2). So the three years suspended time is vacated.

The last issue is one that makes this case beneficial to defense attorneys. The funeral for the decedent was held in Evansville and many people had to fly into Evansville to attend the funeral. The court ordered that Mr. Ned pay for those costs, even for people who did not meet the statutory definition of "crime victim". The Court of Appeals held this was error. They point out that using the 'but for' test to determine restitution exposes a defendant in a criminal case to more pecuniary liability that he would face in a civil case. So the Court of Appeals holds that Ned has to pay for the travel expenses of those who are "victims" under AS 12.55.185(17)(C). The order to pay restitution for those who do not meet this definition is vacated.

Court Opinions

The Court of Appeals has issued a few interesting decisions in the last couple of weeks. Here are the highlights:

in Edmonds v. State, the Court of Appeals holds that Blakely does not really affect a sentencing judge's decisions about whether sentences for different crimes must be served consecutively or concurrently.

Swarner v. State deals with the proper procedures for extradition cases. It is a rather technical case but good reading if you are representing someone facing extradition.

In Crane v. State, the Court of Appeals holds that "lawyers" qualify as counsel for the 6th amendment right to counsel. This may seem rather obvious, but Alaska is blessed (cursed?) with a fair number of "constitutionalists". These are the people who argue that the state has no authority to require a driver's license, that they can take out UCC liens on themselves to prevent criminal jurisdiction from attaching, etc. One of their theories is that the state Bar association is unlawfully licensing "attorneys" and not "counselors at law". The Court of Appeals points out that 200 years ago, there was a difference between attorneys and counselors but there isn't now. I would anticipate that this case will not be the subject of extensive review in subsequent appellate decisions, but I also think it will be handy to give a copy of this to clients who demand a "counselor", not a lawyer.

State v. Anderson is a really bad decision. Anderson was in jail on suspicion of robbery. Cops come to suspect him in another robbery/homicide. So, they get a friend of his to go to his jail cell and be a snitch. No Miranda warnings are given. Trial court suppressed the statements but Court of Appeals reverses. They hold that the psychological pressures of a police interrogation aren't there with a police snitch. So, no warnings needed.

Degrate v. State continues in the long line of cases saying that courts do not have the authority to govern how the department of corrections (DOC) supervises an inmate. In this case, Degrate wanted the court to order DOC to order him to be released for electronic monitoring at home. Court says that the separation of powers prevents the judiciary from telling the executive branch what to do with prisoners.

Last comes Haag v. State. Haag was convicted of robbery. He challenged his indictment, arguing that the state failed to present exculpatory evidence and that the officer improperly commented on his invoking his Fifth Amendment rights. Court of Appeals holds that the evidence requested by Haag isn't really exculpatory and that the comment on the right to remain silent was not harmful because a) the DA gave a limiting instruction right away, and 2) the other evidence would have supported indicting Haag anyway.

Haag challenges his arrest and stop, but Court notes that he was near the scene mere minutes after the robbery and he was running away. While the witness did incorrectly identify the robber as black (Haag was white), it was dark, Haag's clothing was dark, he was wearing dark gloves, and the witness described the robber as wearing a ski mask. So, the stop is justified. The cops, though, take Haag to the two witnesses. This show-up was analogous to prior show-up identifications upheld by Alaska cases.

Last, Haag challenges his sentence as violating Blakely. Court holds that the sentencing court's reliance on an aggravating factor proven to the court does violate Blakely. Court analyzes Blakely's affect on Alaska's sentencing statutes. This is the first real discussion of how Blakely and Alaska statutes interact so this is mandatory reading for any attorney in Alaska who handles criminal law in any form. Even though Haag was sentenced almost a year before Blakely, because his appeal was active, Blakely is retroactive to him. COA holds that trial courts cannot rely upon aggravators that are proven to a court, not a jury, by less than proof beyond a reasonable doubt because this would violate the rule in Blakely (big surprise). The case is remanded for re-sentencing and the Court of Appeals does not deal with the question of whether a jury must hear about a disputed aggravator. The Court of Appeals retains jurisdiction over the sentencing. Nothing further has been issued on this case. I will post on the case if anything further is posted.

Court of Appeals Opinions

The Court of Appeals issued no published opinions last week.

July 8, 2005 Court Opinions

The Court of Appeals issued one decision last Friday, and it's a good one. In Kelly v. State, Mr. Kelley was charged with various counts of sexual abuse of a minor for sexual contact with someone under the age of sixteen. Mr. Kelly was 19 at the time. He tried to introduce evidence that on the night this happened, he had told a friend he thought she was sixteen (the age of consent in Alaska). Court wouldn't let it in. Kelly appealed, arguing that it should have been allowed in as a state of mind exception to the hearsay rule.

Court of Appeals agrees, noting that the statement was not given to prove she was in fact sixteen. Rather, his belief about her age was relevant under applicable statutes. It should have come into evidence. Judge Mannheimer concurred to write that in his opinion, there is no spontaneity requirement under the 803(3) exception to hearsay (state of mind). So even if a statement is not spontaneous, it should still be admitted it if shows a then existing state of mind. Conviction reversed for a new trial.

Court Opinions

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.