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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Court of Appeals No. A-4222
Petitioner, ) Trial Court No. 4BE-91-445 Cr
)
v. )
) O P I N I O N
GREGORY ANGAIAK, )
)
Respondent. ) [No. 1287 - March 5, 1993]
________________________________)
Petition for Review from the Superior Court,
Fourth Judicial District, Bethel, Dale O.
Curda and James A. Hanson, Judges.
Appearances: Cynthia L. Herren, Assistant
Attorney General, Office of Special Prosecu
tions and Appeals, Anchorage, and Charles E.
Cole, Attorney General, Juneau, for Petition
er. Scott Jay Sidell, Law Office of Chris
Provost, Bethel, for Respondent.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
The State of Alaska petitioned us to review an order of
the superior court dismissing a felony prosecution against
Gregory Angaiak for violation of Alaska's speedy trial rule,
Criminal Rule 45. We granted the State's petition and ordered
formal briefing. We now reverse the superior court's decision.
On May 25, 1991, the Bethel District Attorney filed an
information charging Gregory Angaiak with two counts of first-
degree sexual abuse of a minor, AS 11.41.434(a)(1). Five days
later, on May 30, 1991, Angaiak was arrested on these charges.
On June 20, Angaiak waived preliminary hearing; he remained free
on bail pending the action of the grand jury. At this June 20
hearing, the court, the district attorney's office, and Angaiak's
attorney, Cathleen Connolly, agreed that Rule 45 had begun to run
on May 31, 1991 (the day following Angaiak's arrest) and would
expire on September 27, 1991.
For reasons that are not explained in the record,
Angaiak was not indicted on these sexual abuse charges until
September 12, 1991. When Angaiak's indictment was announced in
the superior court the next day (September 13), the district
attorney told the court that Angaiak had violated the conditions
of his release by contacting the victim. Based on the district
attorney's representations, Superior Court Judge Dale O. Curda
issued a warrant for Angaiak's arrest.1 Then, unprompted, Judge
Curda announced that Rule 45 would be tolled "from today until
... he's picked up on the warrant." Neither Angaiak nor his
attorney was present at this proceeding.
The officer who signed the return of the arrest warrant
certified that he arrested Angaiak in Toksook Bay on September
17, 1991. Angaiak was returned to Bethel and arraigned there on
the newly issued indictment on September 21, 1991. A represen
tative of the District Attorney's Office was present at Angaiak's
arraignment, but Angaiak's attorney was not.
At this arraignment, Judge Curda attempted to calculate
how much time should be added to the Rule 45 calculation because
of Angaiak's arrest. The judge incorrectly stated that the
warrant had been issued on September 12 (see footnote 1 above),
and then a state trooper incorrectly informed the judge that
Angaiak had been arrested the previous day, September 20. As a
consequence, Judge Curda decided that 8 days should be added to
the original Rule 45 expiration date of September 27, so that the
rule would expire on Saturday, October 5, allowing the trial to
begin as late as Monday, October 7, 1991.2 The court did not set
Angaiak's trial at this time, but instead scheduled a calendar
call hearing for September 24, 1991.
The calendar call hearing in Angaiak's case was held,
as scheduled, on September 24. Because notice of this hearing
did not reach Angaiak's attorney, Ms. Connolly, until shortly
before the hearing was to be held, Connolly's colleague, Myron
Angstman, appeared at the hearing on behalf of Angaiak.
At this calendar call, Judge Curda recited the
procedural history of the case, telling Mr. Angstman that Rule 45
originally was to have expired on September 27, 1991, but that
the court had added 8 days because of the arrest warrant. Judge
Curda said that he intended to set Angaiak's trial for October 7,
1991, in front of Judge James A. Hanson. The hearing ended with
the following conversation between the court, the district
attorney, and Angaiak's attorney:
THE COURT: [R]ight now [the defendant's
trial is] scheduled [for October] 7th ... in
front of [Judge Hanson].
MR. WALLACE [the prosecutor]: Well,
Your Honor, I guess [it] would be the State's
request ... to have it set sooner, if there's
a problem with Rule 45.
THE COURT: Uh-huh. Mr. Angstman?
MR. ANGSTMAN: I don't know if Ms. Con
nolly has received the grand jury tape yet or
not. I assume that she's in the process of
obtaining it. I certainly can't tell the
court today that there won't be motions or
that we will be ready for trial on [the] 7th
[of] October. I would suggest that the court
set another calendar call early next week,
and we can advise the court at that time if
we are going to be prepared for trial on the
7th ... or if there are motions that require
other action to be taken.
THE COURT: Okay. I'm just checking
here to see -- Judge Hanson is having a
calendar call at 3:30 p.m. on October 3rd, so
I'll go ahead and schedule an omnibus hearing
/ calendar call for that time. By then we'll
know whether there have been any motions
filed, and also [indiscernible] the trial
setting.
. . .
That will be the next court date, then,
October 3rd at 3:30 p.m. for omnibus hearing
/ calendar call. Anything further, Mr.
Wallace? And it will be [set for] trial
October 7th at 8:30 a.m..
MR. WALLACE: No, Your Honor, not at
this time.
THE COURT: All right. Mr. Angstman?
MR. ANGSTMAN: No.
THE COURT: We'll go off record.
At the omnibus hearing / calendar call on October 3,
Angaiak filed a motion to dismiss the charges for violation of
his right to speedy trial under Rule 45. On November 5, in a
written order, Judge James A. Hanson granted Angaiak's motion.
Judge Hanson found first that, notwithstanding Judge Curda's
earlier ruling, the issuance of the arrest warrant on September
13 had had no effect on the running of Rule 45. Second, Judge
Hanson found that Myron Angstman's request for another calendar
call could not be construed as a knowing waiver of Rule 45.
Judge Hanson wrote, "[I]t cannot be said that substitute counsel
Mr. Angstman should have known that the expiration date under
Rule 45 was September 27, 1991, and not October 7, 1991 as he was
informed at [the calendar call of September 24, 1991]."
Following Judge Hanson's dismissal of the case, the
State sought reconsideration of Judge Hanson's order. The State
argued that Angstman's request for an omnibus hearing and renewed
calendar call had been a request for a continuance under Rule
45(d)(2) that tolled Rule 45 for 9 days - from the day of the
request (September 24) until the omnibus hearing / calendar call
was held on October 3. Judge Hanson denied the State's motion
for reconsideration without pertinent comment.
On appeal, the State has abandoned the argument that
time should have been added to the Rule 45 calculation on account
of the September 13 warrant. Instead, the State raises two other
arguments. The State first argues that Angstman's failure to
object to the announced trial date of October 7 constituted a
waiver of Angaiak's Rule 45 rights. The State's second argument
is that the 9 days between September 24 and October 3 must be
excluded under Rule 45(d)(2) because they constituted a continu
ance granted at the request of the defense.
We reject the State's first argument. Before
Angstman's acquiescence in the October 7 trial date can be viewed
as a waiver of Rule 45, it must be shown that Angstman knew
enough about Angaiak's case (in particular, the events that
started and arguably tolled the running of Rule 45) to be aware,
or to have calculated, that the announced trial date violated
Rule 45. Andrew v. State, 694 P.2d 168, 171 (Alaska App. 1985),
aff'd as modified, 718 P.2d 471 (Alaska 1986); DeMille v. State,
581 P.2d 675, 677 (Alaska 1978); Buffington v. State, 745 P.2d
78, 79-80 (Alaska App. 1987). Judge Hanson found the opposite:
he concluded that Angstman, who attended the September 24
calendar call as a last-minute stand-in for Connolly, did not
know enough about Angaiak's case to understand the problem with
the October 7 trial date.
The State argues that Judge Hanson's finding is clearly
erroneous. The State points out that, even though Angstman was
stand-in counsel at the September 24 hearing, Judge Curda
detailed the procedural history of Angaiak's case at that hearing
and specifically told Angstman that the original Rule 45
expiration date had been September 27, 1991, that 8 days had been
added because the court had issued a warrant for Angaiak's arrest
after he violated the conditions of his release, that Rule 45 now
ended on Saturday, October 5, 1991 (allowing trial to commence on
Monday, October 7), and that the court intended to set Angaiak's
trial for that date - October 7 - unless someone objected. From
this, the State concludes that Angstman "had available to him all
the information needed to alert him that a trial date after
September 27th would violate Criminal Rule 45".
We disagree. While the State now implicitly concedes
that Judge Curda was mistaken when he added 8 days to the Rule 45
calculation, Judge Curda's error would not necessarily have been
clear to Angstman. Angstman, appearing in the case for the first
time, heard Judge Curda announce that the Rule 45 calculation had
already been extended in a previous ruling. While it is perhaps
conceivable that Angstman knew enough about the case to perceive
the error in Judge Curda's ruling, we consider that unlikely, at
least on the current record.3 The State has not convinced us
that Judge Hanson's finding is clearly erroneous.4
The State's second argument for reversing the superior
court's decision is that Angstman's request for a renewed
calendar call / omnibus hearing tolled the running of Rule 45
from the date of his request (September 24) until the date the
requested hearing was held (October 3), a total of 9 days.5 The
State characterizes these 9 days as a "period of delay resulting
from an adjournment or continuance granted at the timely request
... of the defendant and his counsel." Criminal Rule 45(d)(2).
The State relies on Miller v. State, 577 P.2d 1077
(Alaska 1978) (per curiam), and Henson v. State, 576 P.2d 1352,
1355-56 (Alaska 1978). However, as Angaiak correctly notes,
these two cases deal with defense requests to reset the
defendant's trial from a scheduled date to a later date.6
Neither Miller nor Henson addresses the situation presented in
Angaiak's case: a defense request, not to reschedule the trial,
but simply to hold another pre-trial hearing before the scheduled
trial date arrives.
A case much closer on its facts is Deacon v. State, 575
P.2d 1225 (Alaska 1978). In Deacon, a trial setting hearing was
held on January 14, 1976. At that time, trial was set for
January 26. However, at this hearing, "counsel for Deacon
requested an omnibus hearing to discuss various motions he
intended to make". Deacon's attorney expressly waived Rule 45
from January 14 until whenever the omnibus hearing concluded.
Id. at 1227. The omnibus hearing was held and concluded two days
later, on January 16. Id. The supreme court held that these two
days were to be excluded from the Rule 45 calculation. Id. at
1229-1230.7
The similarity of Deacon to Angaiak's case is fairly
evident. On September 24, 1991, Judge Curda held a trial-setting
conference in Angaiak's case; trial was set for October 7.
Angaiak's attorney told the court that, given the short time-
frame, the defense might not be ready for trial by October 7.
Angaiak's attorney also told the court that the defense might
have motions to file against the indictment. For these reasons,
Angaiak's attorney asked the court to set another hearing that
would function both as a calendar call and an omnibus hearing.
Without objection, the court set the renewed hearing for
October 3. Angaiak's case differs from Deacon in one
particular: Angaiak's attorney did not explicitly waive Rule 45
when he asked the court to set the omnibus hearing / calendar
call. However, we do not believe this distinction is
significant. Under Rule 45(d)(2), the defense request for a
continuance is the event that, of itself, tolls the running of
the speedy trial clock. There is no requirement that the defense
attorney explicitly waive Rule 45 when he or she requests the
continuance.
Angaiak responds that the October 3 hearing had no
effect on the trial date. Angaiak points out that, when his
attorney requested the second calendar call / omnibus hearing,
the superior court had already set trial for October 7. He
argues that the 9 days between September 24 and October 3 should
not be excluded from the Rule 45 calculation because the request
for the additional hearing on October 3 had no bearing on the
setting of the trial date.
We find that State v. Clouatre, 516 P.2d 1189 (Alaska
1973), forecloses Angaiak's argument. In Clouatre, the defen
dant's case had been dismissed on Rule 45 grounds, and the
government had filed a petition for review. The government noted
that Clouatre had filed a pre-trial suppression motion; relying
on Rule 45(d)(1), the government argued that the time necessary
to adjudicate this suppression motion should have been excluded
from the Rule 45 calculation. Clouatre replied that the time
should not be excluded because the superior court's decision of
his motion had not demonstrably affected the trial date. The
supreme court rejected Clouatre's position and instead
interpreted Rule 45(d) to mean that any event listed in
subsections (1) through (6) would toll the running of the rule,
regardless of whether that event actually delayed the defendant's
trial. Clouatre, 516 P.2d at 1191.
Applying Clouatre to Angaiak's case, we hold that the
9 days between September 24 and October 3, 1991 must be excluded
when calculating the time limit for bringing Angaiak to trial
under Rule 45. Adding 9 days to the original expiration date of
September 27, 1991 extends the Rule 45 deadline to October 6,
1991. That day was a Sunday, so, under Criminal Rule 40(a),
Angaiak's trial could have commenced on Monday, October 7, 1991.
Thus, Rule 45 had not yet expired when Angaiak filed his motion
to dismiss on October 3. The superior court should have granted
the State's motion for reconsideration.
Although we are reinstating the prosecution against
Angaiak, we wish to stress, both to the State and to the superior
court, the dangers inherent in the procedures used in this case.
First, there is absolutely no explanation of why the State failed
to seek Angaiak's indictment until 105 days after his arrest.
Second, on the day that this indictment was returned and the
court issued a warrant for Angaiak's arrest, the superior court
ruled that the deadline for bringing Angaiak to trial would be
extended by however long it might take to arrest Angaiak. This
ruling was both ex parte (that is, made at a hearing at which
only the State was represented) and sua sponte (that is, not in
response to any request by the prosecuting attorney) - fertile
conditions for the creation of judicial error. Had it not been
for the fortuity that Angaiak was arrested within a few days,
leading to the calendar call of September 24, Rule 45 would
likely have barred prosecution of the charges against Angaiak.
We strongly encourage trial judges to make Rule 45 rulings only
when both the government and the defense have had an opportunity
to litigate (or concede) the issue.
The decision of the superior court is REVERSED and this
case is REMANDED for renewed proceedings on the indictment.
_______________________________
1 When the judge issued the warrant, he dated it "September
12, 1991". However, this date is incorrect; the warrant was
issued pursuant to the request of the district attorney when the
indictment was announced in court on September 13.
2 Actually, even if the time attributable to the arrest
warrant were excludable from the Rule 45 calculation (an argument
the State has abandoned on appeal), only 4 days (September 13 -
17) would be added to the calculation. Thus, even with the
benefit of Judge Curda's ruling, the time for bringing Angaiak to
trial would have expired on Tuesday, October 1, 1991, not
Saturday, October 5.
3 We note that the State never sought to question Angstman
about his knowledge of the case as of September 24, 1991.
4 The facts suggest another potential waiver argument:
Even if Angstman did not know enough about the case to understand
that Judge Curda's 8-day extension of Rule 45 had been error,
Angstman did at least know (after he had heard Judge Curda's
summary of the procedural history of the case) that the judge's
ruling had created a Rule 45 issue, and that if Angaiak prevailed
on this issue, the time for bringing Angaiak to trial would
expire on September 27. Thus, it could be argued that Angstman,
when he requested an opportunity to file pre-trial motions and
agreed to a motion hearing date beyond September 27, sought this
continuance with the knowledge that the delay would allow his
colleague, Ms. Connolly, more time to consider and perhaps raise
a potentially dispositive issue. If so, then Angstman's
knowledge of the case was sufficient for his request (for an
omnibus hearing to be held later than September 27) to constitute
a waiver of Rule 45 for at least until the day after the
requested omnibus hearing. This argument was not raised in the
trial court or on appeal; we note but do not resolve it.
5 Implicit in the State's argument is the assertion that
Rule 45 was tolled again on October 3 when Angaiak filed his
motion to dismiss the charges. This does not appear to be
disputed.
6 The same is true of the three other Alaska cases that
directly construe Criminal Rule 45(d)(2): Stobaugh v. State, 614
P.2d 767, 769-770 (Alaska 1980); O'Dell v. Anchorage, 573 P.2d
1381, 1384 (Alaska 1978); and McKenzie v. Anchorage, 631 P.2d
514, 516 n.3 (Alaska App. 1981).
7 See also Dunbar v. State, 543 P.2d 409 (Alaska 1975),
another case in which the Alaska Supreme Court seemingly
indicated that a continuance of a pre-trial hearing would toll
the running of Rule 45. The defendant in Dunbar had filed
suppression motions, and a pre-trial hearing had been calendared
for December 18, 1973 to litigate those motions. The assistant
district attorney assigned to the case was ill on the scheduled
day, so prosecution and defense agreed to delay the hearing until
January 3, 1974. 543 P.2d at 411. On appeal, Dunbar conceded
that this 15-day period of time was excluded from the Rule 45
calculation. However, the supreme court viewed the matter as
covered, not by Rule 45(d)(2), but by Rule 45(d)(1), which
excludes periods of time "resulting from other proceedings
concerning the defendant, including ... motions to suppress[.]"
543 P.2d at 412 n.3.
