Notice: This opinion is subject to formal
correction before publication in the Pacific
Reporter. Readers are requested to bring
typographical or other formal errors to the
attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
THE COURT OF APPEALS OF THE STATE OF ALASKA
ROY M. BLOOMQUIST, )
) Court of Appeals No. A-3396
Appellant, ) Trial Court No. 3AN-S89-4731CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1224 - May 15, 1992]
)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, David C. Stewart, Judge.
Appearances: Roy M. Bloomquist, pro se,
Girdwood, Susan Orlansky, Assistant Public
Defender, and John B. Salemi, Public
Defender, Anchorage, for Appellant. Shelley
K. Chaffin, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Charles E. Cole, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats, Judge,
and Andrews, Superior Court Judge.*
[Mannheimer, Judge, not participating.]
COATS, Judge.
Roy M. Bloomquist was convicted, following a jury
trial, of assault in the third degree, a class C felony, and
criminal trespass in the second degree, a class B misdemeanor.
AS 11.41.220(a)(1); AS 11.46.330(a)(1). Acting Superior Court
Judge David C. Stewart sentenced Bloomquist to an aggregate
prison term of forty-two months with thirty-six months suspended.
Judge Stewart also ordered that Bloomquist be placed on probation
for a period of five years following his release from
confinement. Bloomquist appeals, raising several issues. We
remand to the trial court for further proceedings, retaining
jurisdiction of the case. On the evening of July 13,
1989, Bloomquist, his wife Debra Bloomquist, and their friend
Lorna Betts met at Alyeska Resort in Girdwood, Alaska, where
Betts and Debra Bloomquist worked. Betts told the Bloomquists
that she had seen a winch in the yard of Lucille and Gary
Hotchkiss. Roy Bloomquist suspected Gary Hotchkiss of having
stolen Bloomquist's winch a year earlier, and Betts' description
of the winch she had seen seemed to confirm Bloomquist's
suspicions. Bloomquist became "sort of excited" and wanted to
retrieve the winch that night. Bloomquist visited the residence
of Trooper Michael Opalka to enlist his aid, but he found no one
at home. The Bloomquists and Betts then drove in separate
vehicles to the Hotchkiss residence.
Although they arrived at around midnight, there was
still light outside. Where Betts had earlier seen a winch, they
now found only an indentation in the grass. Bloomquist knocked
on the door of the Hotchkiss residence. Sixteen-year-old Adrian
Hotchkiss answered the door and told Bloomquist his father was
asleep. Bloomquist insisted on speaking with Gary Hotchkiss and
remained at the door until the adult Hotchkisses awakened.
Bloomquist demanded his winch, and the Hotchkisses denied having
it. The Hotchkisses told Betts that the winch she had seen had
belonged to Gary Hotchkiss' brother.
Gary Hotchkiss left the house and backed Bloomquist
away from the house and toward Bloomquist's van, motioning with
his hands and shouting at Bloomquist to leave Hotchkiss'
property. Lucille and Gary Hotchkiss testified that Gary
Hotchkiss was not touching or pushing Bloomquist, but Lorna Betts
testified that Hotchkiss was pushing and striking Bloomquist with
his fists, and Debra Bloomquist testified that Hotchkiss was
pushing and swinging at Bloomquist without the punches
connecting. When Bloomquist reached his van, he pulled out a
wooden club and struck Hotchkiss over the head. The witnesses
differed over whether Hotchkiss fell to the ground, but all
agreed Hotchkiss was bleeding as a result. Bloomquist then
retrieved a rifle from his van. Lucille and Gary Hotchkiss
testified that Bloomquist pointed the rifle at Gary Hotchkiss and
that Debra Bloomquist interposed herself between the gun and
Hotchkiss, saying "Don't shoot him"; Betts and Debra Bloomquist
testified that Hotchkiss called for Adrian Hotchkiss to get his
gun, that Bloomquist did not point his rifle at anyone, and that
Debra Bloomquist never urged him not to shoot.
The Hotchkisses returned to their house, and the
Bloomquists remained outside to search for Roy Bloomquist's
glasses, which had come off during the struggle. Bloomquist then
drove away in his van. Betts and Debra Bloomquist talked with
the Hotchkisses about the winch for fifteen minutes before
leaving. A grand jury indicted Bloomquist for two
counts of assault in the third degree and one count of criminal
trespass in the second degree. The first assault count was for
causing physical injury to Hotchkiss by striking him with the
club, and the second count was for placing Hotchkiss in fear of
serious physical injury by pointing the rifle in his direction.
AS 11.41.220(a)(2); AS 11.41.220(a)(1).
The jury acquitted Bloomquist of the first assault
count, apparently accepting Bloomquist's argument that he struck
Hotchkiss with the club in self-defense. The jury convicted
Bloomquist of the second assault count and the criminal trespass
count.
Bloomquist first contends that Judge Stewart erred in
denying Bloomquist's request to reopen the evidence so that he
could testify on his own behalf.
After Debra Bloomquist had finished testifying,
Bloomquist sought and received a brief recess to determine
whether there would be additional defense witnesses. After the
break, Bloomquist's counsel informed the court that he and
Bloomquist had discussed Bloomquist's testimony and had mutually
decided that Bloomquist would not take the stand. Judge Stewart
stated, "That's fine. It is your decision, Mr. Bloomquist,
whether you want to [testify]. And obviously your attorney is
available for giving you advice on whether to testify, and it is
your choice, not [defense counsel's] choice whether you should
testify." Bloomquist answered, "That's correct." Bloomquist
then rested his case. The state presented two rebuttal
witnesses, who testified regarding the credibility of Betts and
Lucille Hotchkiss, and rested. Judge Stewart then informed the
jury that it had heard all the evidence, that, after another
break, it would hear closing arguments and jury instructions, and
that the court would then submit the case to the jury for its
decision.
The parties and the court then discussed jury
instructions. During this same break, defense counsel notified
the court that, against counsel's advice, Bloomquist was moving
to reopen the evidence so that he could testify on his own
behalf. Judge Stewart denied the motion, finding that Bloomquist
had voluntarily waived his right to testify. After the break,
before closing arguments that same day, Bloomquist moved the
court to reconsider its decision not to allow him to reopen his
case and testify. Judge Stewart denied the motion. In denying
Bloomquist's request, Judge Stewart found that Bloomquist had
personally waived his right to testify after having a full
opportunity to consult with his attorney.
"The constitutional right to testify [at trial] is both
personal to the criminal defendant and fundamental to the dignity
and fairness of the judicial process." LaVigne v. State, 812
P.2d 217, 219 (Alaska 1991)(citations omitted). Bloomquist does
not contend his waiver of the right to testify was invalid or
involuntary. Instead, Bloomquist argues that Judge Stewart
abused his discretion in refusing to allow Bloomquist to reopen
his case after he changed his mind about whether to testify.
The major case which Bloomquist relies on is United
States v. Walker, 772 F.2d 1172 (5th Cir. 1985). In Walker, the
defendant informed the court he was under too much emotional
pressure to testify "right now" or "today." Defendant then
rested his case that day, a Friday, and the state called two
"apparently insignificant" rebuttal witnesses and closed. The
following Monday, before closing arguments, defendant moved to
reopen his case so he could testify, and the trial court denied
the motion. Id. at 1175-76, 1181.
The appellate court noted that the reopening of a
criminal case was within the sound discretion of the trial court.
However, the court set out the following factors for the trial
court to consider:
"In exercising its discretion, the court must
consider the timeliness of the motion, the
character of the testimony, and the effect of
the granting of the motion. The party moving
to reopen should provide a reasonable
explanation for failure to present the
evidence in its case-in-chief. The evidence
proffered should be relevant, admissible,
technically adequate, and helpful to the jury
in ascertaining the guilt or innocence of the
accused. The belated receipt of such testi-
mony should not `imbue the evidence with
distorted importance, prejudice the opposing
party's case, or preclude an adversary from
having an adequate opportunity to meet the
additional evidence offered.'"
Id. at 1177 (quoting United States v. Thetford, 676 F.2d 170, 182
(5th Cir. 1982) (quoting United States v. Larson, 596 F.2d 759,
778 (8th Cir. 1979)), cert. denied, 459 U.S. 1148 (1983)).
The Walker court held that the trial court had abused
its discretion. The appellate court concluded that the
defendant's untimeliness was minor under the circumstances,
because, had defendant elected to take the stand on Friday, the
testimony would likely have carried over into Monday morning
anyway. The court stated that the character of the proffered
evidence weighed very heavily in favor of defendant, because it
was the testimony of a criminal defendant who had not previously
taken the stand in his own trial. The court concluded that the
record did not show that the effect of granting defendant's
motion would have prejudiced the state's case. Finally, the
court concluded that the reasonableness of defendant's excuse of
emotional inability to testify on Friday "mildly favor[ed]"
defendant's position, as it was "apparently bona fide and not
significantly unreasonable," as opposed to a desire to "delay the
proceedings" or "gain a strategic advantage over the government."
Walker, 772 F.2d at 1177-85. Similarly, in People v. Johnson,
504 N.E.2d 178, 181 (Ill. App.), appeal denied, 511 N.E.2d 433
(Ill. 1987) and Mayfield v. State 468 A.2d 400, 409-10 (Md. App.
1983), appellate courts have found that trial courts have abused
their discretion where the trial courts have denied defendants
who have rested their cases the right to reopen their case to
testify.
The state argues that a defendant must demonstrate
injustice or prejudice from the omission of the proffered
evidence in order to show that the trial court abused its
discretion in not reopening the case. See State v. Hie, 575 A.2d
265, 266 (Conn. App. 1990); Blankenship v. Commonwealth, 740
S.W.2d 164, 168 (Ky. App. 1987); State v. Baker, 785 S.W.2d 132,
136 (Tenn. Crim. App. 1989); Gray v. State, 797 S.W.2d 157, 160
(Tex. App. 1990). However, none of these cases involves a
defendant who has not testified at all and moves to reopen the
case in order to testify. Where the defendant moves to
reopen his case to testify on his own behalf, we believe that the
standards which the Fifth Circuit set out in United States v.
Walker are appropriate for resolving this issue. Those factors
are: 1) the timeliness of the motion; 2) the character and
importance of the testimony the party desires to present; 3) the
effect of granting the motion, particularly any prejudice to the
state's case; and 4) the reasonableness of the grounds asserted
for the request to reopen the evidence, as contrasted with
evidence that the defendant's motion was motivated by a desire to
"delay the proceedings" or to "gain a strategic advantage over
the government." Id. at 1177-85.
From the record, it appears that Judge Stewart's
decision denying Bloomquist's motion to reopen the case so that
he could testify was based on Judge Stewart's conclusion that
Bloomquist had already waived his right to testify. This was
simply not a sufficient reason to justify denying Bloomquist's
motion.
Bloomquist never made any showing concerning the nature
of the testimony he proposed to give. However, Bloomquist points
out that since Judge Stewart denied his motion to reopen the case
on the ground that Bloomquist had waived his right to testify, he
never had an opportunity to establish what he would have said if
he had been allowed to testify at his trial. Bloomquist suggests
that we remand the case to allow him to make an offer of proof as
to what his testimony would have been. We believe that this is
appropriate. We accordingly remand the case to allow Bloomquist
to make an offer of proof. After he has done so, the court
should allow the parties to establish and argue the factors which
the court applied in United States v. Walker. Based upon the
Walker factors, the superior court shall determine whether the
court should have reopened the case to allow Bloomquist to
testify at his trial. The trial court shall make written
findings. This court will retain jurisdiction.
Bloomquist raises another issue which we will deal with
summarily at this time. Bloomquist contends that Judge Stewart
erred in failing to suppress statements which he made to a state
trooper. Bloomquist contends that his taped statement to Trooper
Opalka should have been suppressed because it was involuntary and
was not recorded properly. The issues in a suppression motion
involve mixed questions of law and fact; this court will accept
the trial court's factual findings unless they are clearly
erroneous and will independently determine whether a confession
was volun-tary. Tagala v. State, 812 P.2d 604, 607 (Alaska App.
1991). We find that Judge Stewart's findings are supported by
the record and find that Bloomquist's statements were voluntary
and that the state did not obtain the statements in violation of
either Bloomquist's Miranda rights, see Miranda v. Arizona, 384
U.S. 436, 475 (1966), or the recording requirements set forth by
the Alaska Supreme Court in Stephan v. State, 711 P.2d 1156, 1162
(Alaska 1985) (basing holding upon state Constitution).
The case is REMANDED.
_______________________________
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
