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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
DAVID E. MILES, )
) Court of Appeals No. A-3556
Appellant, ) Trial Court No. 3KN-89-1137
Cr
)
v. )
) O P
I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1199 - February 7,
1992]
________________________________)
Appeal from the Superior Court, Third Judi
cial District, Kenai, Brian Shortell, Judge.
Appearances: Leslie A. Hiebert, Assistant
Public Advocate, and Brant G. McGee, Public
Advocate, Anchorage, for Appellant. Kenneth
M. Rosenstein, Assistant Attorney General,
Anchorage, and Charles E. Cole, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
David E. Miles participated in two sales of cocaine to
a police undercover agent. He was indicted on two counts of
misconduct involving a controlled substance in the third degree,
AS 11.71.030(a)(1). Miles asked the superior court to suppress
the tape recordings of his conversations with the undercover
agent. When the superior court denied Miles's motion, Miles and
the State reached a plea agreement. Miles pleaded no contest to
one count of third-degree misconduct involving a controlled
substance, and Miles and the State stipulated that Miles could
appeal the superior court's denial of his motion to suppress the
tape recordings. Cooksey v. State, 524 P.2d 1251 (Alaska 1974).
Miles filed the agreed-upon appeal and he has briefed
the suppression issue. In its responding brief, the State argues
that the plea agreement is improper under the refinement of the
Cooksey rule announced by the Supreme Court in Oveson v.
Anchorage, 574 P.2d 801, 803 n.4 (Alaska 1978).
At common law, a plea of guilty or no contest
constituted a waiver of all non-jurisdictional defects in a
criminal prosecution. Cooksey, 524 P.2d at 1255. In Cooksey,
the Alaska Supreme Court altered this common-law rule, allowing a
defendant to plead no contest yet at the same time reserve the
right to appeal an issue litigated in the trial court. Cooksey,
524 P.2d at 1256-57.
In Oveson, the Supreme Court refined and limited the
Cooksey rule. The court announced:
[A]ppeals under the Cooksey doctrine will not
be approved unless it is clearly shown, and
the parties have stipulated with trial court
approval, that our resolution of the issue
reserved for appeal will be dispositive of
the entire case.
Oveson, 574 P.2d at 803 n.4.
In the present case, Miles and the State told the
superior court that Miles's motion to suppress the tape
recordings of his conversations with the undercover agent was
"dispositive" because, without these tape recordings, the State
would probably elect not to go forward with the prosecution. The
superior court apparently accepted this stipulation. However,
under Oveson and ensuing decisions, this court must independently
evaluate whether an issue is dispositive for Cooksey purposes.
See, for example, Heuga v. State, 609 P.2d 547, 548 (Alaska
1980), and Cronin v. Anchorage, 635 P.2d 840, 842 (Alaska App.
1981).
Past cases have not provided a clear definition of what
kind of issue is "dispositive" for Cooksey purposes. See C.
Pengilly, Post-Plea Appeal of "Dispositive" Issues, 5 Alaska Law
Review 221 (1988). The parties in this case took the position
that suppression of evidence becomes "dispositive" if the
prosecutor would decline to pursue the case in the absence of
that evidence, regardless of the legal sufficiency of the
remaining evidence. We reject this definition of "dispositive"
for several reasons.
If the categorization of an issue as "dispositive"
hinged on the prosecuting attorney's personal view of the
evidence in the case, it would be almost impossible for this
court to discharge the responsibility imposed by Oveson -- the
duty of independently reviewing the issue preserved for appeal to
make sure it is truly dispositive. The decision of a prosecutor
to pursue criminal charges in the absence of particular evidence
is often a judgement call based on that prosecutor's experience,
workload, and temperament. A prosecutor's evaluation of the
likelihood of success without the questioned evidence (i.e., the
likely credibility and convincing power of the remaining
evidence) will almost always rest on intangible factors that
cannot be independently assessed by this court.
Moreover, there is always the possibility that an over
worked prosecutor's view of whether evidence is crucial to the
case will be consciously or unconsciously influenced by the
knowledge that calling an issue "dispositive" will mean the
disappearance of that case from the trial calendar. This same
knowledge might also influence the defense attorney and the trial
court judge to acquiesce in the prosecutor's evaluation.
Another objection to such a subjective definition of
"dispositive" -- perhaps the most important objection -- is that
it leaves the appellate courts vulnerable to having the parties
"thrust upon us the determination of hypothetical and abstract
questions". Heuga, 609 P.2d at 548. An appellate court should
not undertake to decide a legal question simply because it is
interesting or simply because the parties would like to have the
question answered.
Under Alaska Criminal Rule 43(a), the prosecution has
unfettered discretion to dismiss a criminal case up until the
commencement of trial. Thus, if the dispositiveness of an issue
depended on the subjective intention of the prosecutor, virtually
any issue could become "dispositive" if the prosecutor were
willing to commit the state to dismiss the case in the event the
defendant prevailed on that issue. Had the Supreme Court
contemplated this result in Oveson, it certainly would not have
required an independent judicial finding that the issue preserved
for appeal is dispositive.
We believe that the proper definition of a "disposi
tive" issue can be derived by examining the underlying purposes
of the Supreme Court's insistence that the issue preserved for
appeal be dispositive. One reason for this requirement is to
insure that the issue preserved for appeal will be strenuously
litigated in the trial court, so that the resulting appellate
record will be adequate for meaningful review. Another reason
for the requirement is to avoid having issues presented on appeal
in an evidentiary vacuum. There are times when a particular
witness's testimony or a particular piece of evidence may have
obvious crucial importance to the litigation; examples are the
drug or the weapon in a drug or weapon possession case. More
often, however, the ultimate importance of particular evidence to
the litigation -- and, more to the point, whether erroneous
admission of this questioned evidence would require reversal of a
criminal conviction -- cannot be evaluated without knowing the
rest of the government's case. Justice would not be served if
Cooksey pleas could be employed to evade the harmless error rule
that would normally govern appellate resolution of the
defendant's evidentiary claim if he or she went to trial.
In the present case, suppression of the tape recordings
of Miles's conversations with the undercover agent clearly poses
no legal impediment to the State's pursuit of this prosecution.
Despite suppression of the tapes, the police agent could still
testify about these conversations, could still testify that Miles
participated in the two drug sales, and could still provide the
evidentiary foundation for admission of the drugs. State v.
Glass, 583 P.2d 872, 877, 880 (Alaska 1978). This evidence, if
admitted, would be sufficient to take the case to the jury.
Thus, even if we ruled on appeal that admission of the tapes had
been error, we would still have to decide whether that error was
"reversible" -- whether a conviction supported by legally
sufficient evidence should nonetheless be reversed because of the
admission of the tapes. The Alaska Supreme Court has cautioned
us that we are not to decide such an issue in a "factual
vaccuum". State v. Wickham, 796 P.2d 1354, 1357-58 (Alaska
1990).
To safeguard the proper functioning of the
Cooksey/Oveson rule, we now hold that an issue is "dispositive"
for Cooksey purposes only if resolution of the issue in the
defendant's favor would either legally preclude the government
from pursuing the prosecution or would leave the government
without sufficient evidence to survive a motion for judgement of
acquittal at the conclusion of the government's case. We adopt a
judgement of acquittal standard because it provides a more
objective benchmark than a test that hinges on the prosecutor's
strategic evaluation of the chances for a favorable verdict.
In the future, to comply with the Cooksey/Oveson rule,
the prosecuting attorney, as an officer of the court, must
certify that the issue which the defendant proposes to appeal is
dispositive, either because a ruling in the defendant's favor
would, as a matter of law, bar continuation of the prosecution or
because a ruling in the defendant's favor would leave the
government with insufficient evidence to withstand a motion for
judgement of acquittal at the conclusion of the government's
case. Both the defense attorney and the judge must concur in the
prosecutor's assessment.
Of course, it will remain the obligation of this court
to independently evaluate the propriety of Cooksey pleas.
Oveson, 574 P.2d 801. Nevertheless, under the standard that we
adopt today, we anticipate that trial judges, prosecutors,
defense attorneys, and this court will generally agree on what
constitutes a proper Cooksey issue.
We recognize that criminal cases will, from time to
time, give rise to important questions of law which, although not
"dispositive", are nonetheless deserving of immediate appellate
resolution. Our holding does not preclude, nor is it intended to
discourage, either or both parties from petitioning this court
for interlocutory review under Alaska Appellate Rule 402 in such
cases. Alternatively, if the parties concur that the only
crucial aspect of the case is a non-dispositive legal issue and
that there are no material factual disputes to be litigated, the
parties may agree to hold a trial on stipulated facts or upon the
grand jury record, thus obtaining an appealable judgement.
Returning to the present case, the issue Miles
attempted to preserve for appeal is not "dispositive" as we have
defined that term today. We must therefore dismiss Miles's
appeal for lack of jurisdiction. Because Miles entered his no
contest plea in reliance on his ability to litigate the
suppression issue on appeal, he must now be given an opportunity
to withdraw his plea. Cooksey, 524 P.2d at 1256.
This appeal is DISMISSED and this case is REMANDED to
the superior court to allow Miles to withdraw his plea.
