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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
WESLEY ALLEN MINCH, )
) Court of Appeals No. A-5243
Appellant, ) Trial Court No. 1KE-91-328 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1518 - March 14, 1997]
______________________________)
Appeal from the Superior Court, First Judicial
District, Ketchikan, Thomas M. Jahnke, Judge.
Appearances: David W. Rosendin, Ketchikan, for
Appellant. James L. Hanley, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
Wesley Allen Minch appeals his conviction for fourth-
degree misconduct involving a controlled substance (possession of
cocaine), AS 11.71.040(a)(3)(A). He contends that his trial was
held outside the time limits of Alaska's speedy trial rule, Criminal
Rule 45. He also contends that the trial judge mistakenly denied
his challenge for cause to one of the prospective jurors.
With regard to the speedy trial issue, we conclude that
Minch has no claim; his trial was held within the time limits of
Criminal Rule 45. With regard to the challenge of the prospective
juror, we agree with Minch that the trial judge should have granted
his challenge for cause, but we conclude that Minch has failed to
show that he was prejudiced by the trial judge's error.
The speedy trial issue
On March 8, 1991, Minch was served with a summons charging
him with possession of cocaine with intent to deliver. (EN1) This
event started the running of Criminal Rule 45. See Criminal Rule
45(c)(1). (For purposes of calculating the Rule 45 time limit, Day
1 was March 9th. Nickels v. State, 545 P.2d 163, 165 (Alaska
1976).)
Due to various procedural events and continuances
requested by Minch's attorney, Minch's pre-trial motions were not
decided until October 1, 1991. (Readers interested in the details
will find them in the following footnote. (EN2)) On October 4th
(three days after deciding the pre-trial motions), the superior
court held a conference to set the date for Minch's trial.
The court indicated that it would set Minch's trial for
November 12th. However, Minch's attorney told the court that the
State had made an attractive plea offer and that the "likelihood of
this [case] going to trial [was] very low". For this reason,
Minch's attorney told the court, he would prefer a later trial date.
The court suggested a new trial date of January 21, 1992, and
Minch's attorney agreed to this date.
In their briefs, the parties offer competing calculations
of how much countable time had elapsed under Rule 45 at the time of
this trial scheduling conference. However, it makes no real
difference how much time had run on October 4, 1991. At that
October 4th conference, Minch's attorney explicitly agreed to a new
trial date of January 21, 1992. This date was 109 days in the
future þ manifestly outside the normal limits of Rule 45. By
agreeing to this date, Minch waived his right to demand an earlier
trial. State v. Andrew, 718 P.2d 471 (Alaska 1986); Westdahl v.
State, 592 P.2d 1214 (Alaska 1979); Drake v. State, 899 P.2d 1385
(Alaska App. 1995). And, as will be explained next, no further time
elapsed under Rule 45 between this agreed-upon trial date of January
21, 1992, and the date on which Minch's trial was finally held:
May 10, 1993.
Minch's trial was not held on January 21, 1992. Two weeks
before the scheduled trial (on January 7th), Minch asked for a
continuance until April 21st; he explicitly waived his speedy trial
rights until that day.
Nor was Minch's trial held on April 21, 1992. Two weeks
before the scheduled trial (on April 7th), Minch's attorney notified
the court that there would be no trial þ that Minch would be
changing his plea. With Minch's approval, the court set a change-
of-plea hearing for April 17th.
For reasons that do not appear in the record, the change-
of-plea hearing was rescheduled for April 22nd. On that day,
Minch's attorney asked for a continuance of the hearing until late
May. The court obliged, rescheduling the change-of-plea hearing for
May 29th.
On May 29th, the parties appeared in court so that Minch
could enter his plea. However, Minch wished to enter a Cooksey plea
and preserve an issue for appeal. See Cooksey v. State, 524 P.2d
1251 (Alaska 1974). The prosecutor told the court that he did not
think Minch's issue was dispositive. In order to preserve Minch's
right to appeal, the parties agreed that they would prepare a
stipulated statement of facts. The idea was that Minch would be
tried on these stipulated facts, the court would find him guilty,
and then Minch would be free to raise issues on appeal as if he had
gone through a full-blown trial.
Because the parties were treating Minch's guilt as a
foregone conclusion, the court began to prepare for sentencing. The
judge ordered preparation of a pre-sentence report, and he ordered
the parties to file their notices of aggravating and mitigating
factors by June 12th. The court scheduled a hearing on aggravating
and mitigating factors for June 26th, and the court scheduled the
sentencing hearing for July 27th.
The State filed its aggravators on June 2nd. Minch filed
his mitigators on June 16th. Then, on June 25th (the day before the
scheduled hearing on aggravators and mitigators), the parties
stipulated to continue that hearing until July 2nd. The parties
later stipulated to another continuance until the week of July 20th.
On July 23rd, Minch asked for yet another continuance of this
hearing. The court rescheduled the aggravators/mitigators hearing
for August 4th.
As it turned out, the August 4th hearing was not devoted
to aggravators and mitigators; Minch, who was supposed to be in
attendance, did not show up. (His attorney told the court that
Minch had to be at work that day.) Instead, the parties discussed
the information that should appear in the pre-sentence report.
Apparently because there had been no trial and the parties had yet
to prepare their stipulated statement of facts, the court directed
the parties to file affidavits for purposes of the pre-sentence
investigation.
The parties did not return to court until November 30th.
The judge expected to sentence Minch at that time, but Minch's
attorney objected. Minch told the court that he and the State had
never prepared the stipulated set of facts for the court to use in
finding Minch guilty. In fact, the defense attorney said, Minch had
decided to reject the State's offer: he now wished to go to trial.
In response, the court set a trial date of December 29, 1992.
On December 17th, the parties appeared in court and Minch
announced that he intended to seek dismissal of the charge based on
a violation of Rule 45. The court pointed out that litigation of
a Rule 45 motion would probably "string [the proceedings] out"
because the court would have to set a new motion schedule. Minch
said he was agreeable to this; he asked the court to reschedule the
trial for March 22, 1993, and he waived his rights under Rule 45
until that date. The court ordered Minch to file his Rule 45 motion
by December 28th.
For reasons that are not explained in the record, Minch
did not file his Rule 45 motion until March 10, 1993. (Trial was
scheduled for March 22nd.) When the parties appeared in court on
March 19th for the trial call, the State argued that the court
should deny Minch's Rule 45 motion because it was so tardy. Given
these unresolved issues, the judge canceled the jury trial set for
March 22nd; instead, he calendared a motion and trial-setting
conference for March 22nd.
At this conference on March 22nd, Minch waived his speedy
trial rights and agreed to a new trial date of May 10, 1993. Minch
was finally tried on May 10, 1993, more than two years after he was
served with the summons.
Despite this two-year delay in bringing Minch to trial,
we conclude that Rule 45 was not violated. As explained above,
Minch agreed to a trial date of January 21, 1992 when he knew that
this date fell outside the normal Rule 45 time limit. Then, with
this January trial date approaching, Minch agreed to an even later
trial date: April 21, 1992. Thus, the Rule 45 "clock" could not
expire until after April 21st.
The next significant event occurred on April 7, 1992 (two
weeks before Minch's scheduled trial). On that day, Minch announced
to the court that he would be changing his plea. When Minch
declared that he intended to change his plea, Rule 45 was satisfied.
This court resolved this issue ten years ago in a nearly identical
case, Morris v. State, 734 P.2d 1012 (Alaska App. 1987).
The defendant in Morris told the court that he intended
to waive trial and change his plea. A change-of-plea hearing was
calendared, but the hearing was continued when the parties could not
agree on the particulars of Morris's prior convictions. 734 P.2d
at 1013. Ultimately, the plea agreement fell apart; the defendant
never changed his "not guilty" plea, and the court set a new date
for the defendant's trial. Id. at 1013-14. As that trial date
approached, the defendant filed a motion to dismiss the case under
Rule 45. When the trial court denied this motion, Morris pleaded
no contest, reserving his right to appeal the Rule 45 issue. Id.
at 1014.
On appeal, this court held that Morris's announcement that
he intended to change his plea "had the same effect ... as an entry
of plea". Morris, 734 P.2d at 1014. That is, Morris's announcement
terminated the running of Rule 45.
This same rule applies to Minch's case. When Minch
announced on April 7, 1992 that he intended to change his plea, this
satisfied Rule 45. Minch's case does, however, involve a few
additional wrinkles that merit discussion.
Minch's change of plea was to have occurred on April 22,
1992. But when the parties appeared in court on that day, Minch
asked the court to continue the change-of-plea hearing until May 29,
1992. And, as explained above, when the parties came to court on
May 29th, Minch announced that he would not be entering a Cooksey
no contest plea because a Cooksey plea would not allow him to
preserve non-dispositive issues for appeal. Instead, Minch told the
court, he now agreed to be tried þ and to be found guilty þ on a
stipulated statement of facts that the parties would draw up in the
near future. Based on Minch's announcement, the court began the
sentencing process þ ordering a pre-sentence report and setting a
filing deadline for the parties' proposed aggravating and mitigating
factors.
While it is true that Minch told the court on May 29th
that he would not be entering a no contest plea, Minch did not tell
the court that he now wished to go to trial. Instead, Minch told
the court that he had reached a revised agreement with the State
that would allow him to preserve non-dispositive issues for appeal.
Under this revised agreement, the court would find Minch guilty on
stipulated facts.
As explained above, the trial court did not view this
revision as a material change in the agreement. The court's
response to Minch's announcement (that he wished to be found guilty
on stipulated facts) was to order preparation of a pre-sentence
report and to set a filing deadline for the parties' proposed
aggravators and mitigators.
We, too, conclude that this change in the agreement was
of no consequence. Under either version of the agreement (Cooksey
plea or a guilty verdict on stipulated facts), Minch intended for
the court to find him guilty without trial of the factual merits of
the State's case. For Rule 45 purposes, either version of the
agreement had the same effect as a formal change of plea. Thus, any
delays following Minch's initial change-of-plea announcement on
April 7, 1992 are irrelevant. As this court declared in Morris, 734
P.2d at 1014, Rule 45 "is a speedy-trial rule, not a speedy-
sentencing rule".
The next relevant event occurred six months later, on
November 30, 1992. On that day, Minch told the court that his
agreement with the State had collapsed and that he now intended to
re-assert his right to trial. By virtue of Minch's decision, the
Rule 45 clock was extended by a reasonable amount of time (a minimum
of 30 days) to allow the superior court to work Minch's case back
into its trial calendar. See Petersen v. State, 838 P.2d 812, 814-
15 (Alaska App. 1992). (EN3)
At a hearing two weeks later, Minch agreed to a trial date
of March 22, 1993. Then, on March 22nd, Minch explicitly agreed to
a new trial date of May 10, 1993 þ which is when his trial finally
took place. This trial date did not violate Rule 45.
Minch's challenge to the prospective juror
One of the prospective jurors called for Minch's case was
Michael Louthan, a police officer at the Ketchikan Gateway Borough
Airport. During voir dire, the prosecutor asked Louthan whether his
job would affect how he viewed the case. Louthan replied,
"Somewhat." Louthan explained that he would probably give a fellow
law enforcement officer's testimony more weight than testimony
offered by a person who was not a law enforcement officer, although
he would not "have [any] problem" deciding the case in favor of the
defendant if it turned out that the police had made a mistake.
During the defense portion of the voir dire, Minch's
attorney asked Louthan about his statement that he would give more
weight to a fellow officer's testimony. Louthan replied that he had
an objective basis for this preference: "[I]n ... over ten years
of law enforcement," Louthan said, he had never "[been given] any
false information ... by a law enforcement officer[.]"
Defense counsel asked the court to dismiss Louthan from
the panel. The court denied this challenge for cause. Defense
counsel then again asked Louthan if he would favor the testimony of
a police officer over the testimony of someone he did not know.
When Louthan responded that this possibility did exist, Minch's
attorney again requested that Louthan be dismissed for cause.
Before deciding Minch's challenge, the court asked Louthan
if he could be a fair juror. Louthan replied, "Yes." Apparently
based on Louthan's answer, the court again denied Minch's challenge
for cause.
When a party asserts on appeal that the trial judge should
have granted a challenge for cause to a prospective juror, this
court reviews the trial judge's decision under the "abuse of
discretion" standard. Mitchell v. Knight, 394 P.2d 892, 897 (Alaska
1964); Young v. State, 848 P.2d 267, 269 (Alaska App. 1993). Here,
we conclude that the trial judge abused his discretion.
Alaska Criminal Rule 24(c) lists the grounds for
challenging a prospective juror. Under Rule 24(c)(3), a prospective
juror should not serve on the jury if they "show[] a state of mind
which will prevent [them] from rendering a just verdict". Under
Rule 24(c)(4), a prospective juror should not serve if they "[have]
opinions ... which would improperly influence [their] verdict".
Officer Louthan candidly admitted that he would weigh the testimony
of police officers more heavily than the testimony of other people.
Louthan's predisposition to believe police testimony was manifestly
relevant when evaluating whether he should serve as a juror in a
criminal case.
True, Louthan declared that he could decide Minch's case
fairly. However, our review of Louthan's entire voir dire leaves
us with the firm impression that Louthan mistakenly believed that
his preference for police testimony was entirely consistent with a
"fair" decision. The trial judge should have granted Minch's
challenge for cause.
Nevertheless, we conclude that Minch was not prejuemptory
challenges to remove Louthan from the panel.
Minch argues that, because he ultimately used all of his
peremptory challenges, and because he was forced to use one of these
peremptories to get rid of Louthan, we must presume that he was
prejudiced by the trial judge's error. In other words, Minch asks
us to make two assumptions, one factual and one legal. The factual
assumption is that, had Minch possessed one more peremptory
challenge, he would have exercised it against one of the jurors who
ultimately decided his case. The legal assumption is that, because
this hypothetically pre-emptible juror sat on Minch's case, Minch
suffered prejudice.
We are unwilling to adopt Minch's reasoning. First, there
is nothing in the record to support the assumption that Minch would
have used another peremptory challenge if he had had one. Minch
never asked the superior court to give him additional peremptory
challenges, nor did he argue in any other fashion to the trial court
that the jury-selection process had left him with a panel that could
not be fair. Even on appeal, Minch makes no argument that the
jurors who decided his case were unable to be fair.
Moreover, even assuming that Minch would have exercised
one more peremptory challenge if he had had one, this fact alone is
not sufficient to demonstrate prejudice. As the supreme court
clarified in Bohna v. Hughes, Thorsness, Gantz, Powell & Brundin,
828 P.2d 745 (Alaska 1992),
Peremptory challenges are ... not an end
in themselves, but rather a means to an end:
an impartial jury. Where a party receives an
impartial jury, the issue of peremptories is
moot. The question is ... whether [the party
challenging the trial court's ruling] obtained
a fair jury despite the imbalance of
peremptories.
Bohna, 828 P.2d at 762-63.
In other words, it is not enough for Minch to prove that
the trial judge should have dismissed Louthan for cause, thereby
giving Minch one more peremptory challenge for potential use on
another juror. "A party has a right to an impartial jury, [but] not
to have certain individuals on the jury[.]" Bohna, 828 P.2d at 763
n.46. In addition to proving that the trial judge made an erroneous
ruling on his challenge for cause, Minch must also demonstrate some
reason to believe that one or more of the jurors who decided his
case were, in fact, not fair.
Minch makes no argument and offers nothing in the record
to show that the jurors who comprised his jury panel were unfair.
We therefore conclude that, although the trial judge should have
granted Minch's challenge of Louthan, Minch was not prejudiced by
this error.
Conclusion
Minch was brought to trial within the time limits of
Criminal Rule 45. The trial court should have dismissed prospective
juror Louthan for cause, but Minch was not harmed by this error.
Accordingly, the judgement of the superior court is AFFIRMED.
ENDNOTES:
1. Minch was tried on this charge; the jury found him guilty of
the lesser included offense of simple possession of cocaine.
2. Minch was arraigned on March 12th and an attorney was
appointed to represent him. Minch was released on his own
recognizance. On March 29th, Minch consented to a 21-day tolling
of Rule 45 so that his preliminary hearing could be delayed.
However, on April 11th (before this 21-day period had expired),
Minch was indicted (thus obviating the need for a preliminary
hearing).
Minch was to have been arraigned on this indictment on April
17th, but Minch was not present in court. (His attorney had
apparently made a mistake about the scheduled day.) The arraign-
ment was therefore continued until April 22nd, at which time Minch
pleaded not guilty. The superior court set an omnibus hearing for
May 2, 1991.
For reasons that are not explained in the record, the omnibus
hearing was not held until May 10th. At that time, Minch's
attorney asked the court to extend the deadline for filing pre-
trial motions. The court gave Minch until June 21st, and trial was
set for September 25th.
On June 21st, the parties stipulated to a further extension of
the motions deadline; the court extended the deadline to July 2nd.
On July 2nd, Minch's attorney asked that the deadline be extended
to July 15th. Minch's attorney missed the July 15th deadline. On
July 29th, Minch's attorney belatedly asked for yet another
extension of the motions deadline.
Finally, on August 2, 1991, Minch filed a motion seeking
suppression of the evidence against him. The State filed its
opposition two weeks later. The court held an evidentiary hearing
on this motion on August 27th, but deferred ruling until a
necessary transcript could be obtained. From the record, it
appears that the transcript was received on September 3rd, at which
time Minch's motion was formally under advisement.
With Minch's suppression motion under advisement, Minch's
trial (previously scheduled for September 25th) was not held. On
September 26th, the court granted Minch permission to travel to
Idaho.
The superior court denied Minch's suppression motion on
October 1, 1991.
3. Under the current version of Rule 45(c), the speedy trial
clock is reset to 120 days and begins running afresh when a
defendant is allowed to withdraw a plea of guilty or no contest.
See Rule 45(c)(6). This current version of the rule did not take
effect until July 1993.
