Veeder v. Municipality of Anchorage (12/18/98) ap-1612
NOTICE: Formal errors in the text of this opinion can
be corrected before the opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal errors to the attention of
the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: twhitman@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
KIPTON VEEDER, )
) Court of Appeals No. A-6413
Appellant, ) Trial Court No. 3AN-M94-9324CR
)
v. )
) O P I N I O N
MUNICIPALITY OF ANCHORAGE, )
)
Appellee. ) [No. 1612 - December 18, 1998]
______________________________)
Appeal from the District Court, Third Judicial
District, Anchorage, Paul E. Olson, Judge.
Appearances: Jason A. Steen, Gorton &
Associates, Anchorage, for Appellant. Carmen E. ClarkWeeks,
Assistant Municipal Prosecutor, and Mary K. Hughes, Municipal
Attorney, Anchorage, for Appellee.
Before: Coats, Chief Judge, Mannheimer and
Stewart, Judges.
STEWART, Judge.
Kipton Veeder had his probation revoked following a
hearing on September 26, 1996. He appeals, claiming that it was
error for the judge to admit hearsay evidence during the revocation
hearing, and that the Municipality failed to establish the veracity
of its unavailable witness. We affirm.
Facts and proceedings
Veeder, who was on probation for previous offenses, was
charged with committing a domestic violence assault on July 6, 1996.
With this charge pending, the Municipality filed to revoke Veeder's
probation. The trial for the criminal case was set for September
26, 1996; because the same facts were used as the basis for the
petition to revoke, the revocation hearing was also set for
September 26, 1996. The victim in the criminal case, who was
subpoenaed, failed to appear, so the Municipality did not proceed
with the criminal case. Although the Municipality had received a
warrant to secure the victim's appearance, it decided to proceed on
the revocation case without her because there was no indication that
she would be found in the near future.
Veeder objected to the court's admitting the victim's
statements in evidence, arguing that it was inadmissible hearsay.
The court ruled that under Evidence Rule 101(c)(2), the "hearsay
statements of the victim . . . would be admissible" in the probation
revocation proceedings. The Municipality also introduced testimony
from two police officers and introduced six photographs. Veeder
presented no evidence.
After the parties argued, the judge revoked Veeder's
probation. Veeder now appeals, primarily asserting that Alaska
Evidence Rule 101(c)(2) does not apply to misdemeanor revocation
hearings.
Discussion
Veeder contends that Evidence Rule 101(c)(2) does not
apply to misdemeanor revocation proceedings because the commentary
to the rule states that "[t]he rules of evidence have not been
regarded as applicable to sentencing or probation proceedings, where
great reliance is placed upon the presentence investigation and
report." [Fn. 1] Veeder claims that the commentary only describes,
and therefore only applies to, felony probation proceedings because
presentence reports are not supplied, requested or required in
misdemeanor cases. We find Veeder's claim meritless.
Evidence Rule 101(c)(2) provides that the evidence rules
are not applicable to:
Proceedings relating to extradition or
rendition; sentencing, probation, or parole; issuance of criminal
summonses, or of warrants for arrest or search; and summary
contempt.
This language is clear and unambiguous, and Veeder bears the heavy
burden of demonstrating a contrary intent. [Fn. 2] Veeder's
citation to the rules commentary, his sole evidence of contrary
intent, does not demonstrate that Rule 101(c)(2) does not apply to
misdemeanor cases.
Moreover, under Evidence Rule 101(a), the Alaska Rules of
Evidence apply in all proceedings in the courts of the State of
Alaska, except as otherwise required by the state or federal
constitutions, or provided for by enactment of the state
legislature, by some provision of Rule 101, or by other rules
promulgated by the Alaska Supreme Court. Therefore, Rule 101(c)(2)
applies to proceedings in district courts. [Fn. 3] Other than his
reliance on the statement in the rules commentary, Veeder has not
cited any authority or rule that would, under Rule 101(a), make
subsection (c)(2) inapplicable to proceedings in district courts.
Under Veeder's interpretation of the commentary, Rule 101(c)(2)
would never apply to revocation proceedings in the district court,
despite the clear and unambiguous language of Rule 101(a), simply
because district courts do not have jurisdiction over felonies. We
reject this interpretation.
We conclude that Evidence Rule 101(c)(2) applies to
proceedings relating to probation revocation in misdemeanor cases.
We further conclude that Judge Olson did not err in ruling that the
rules prohibiting hearsay did not apply in Veeder's probation
revocation hearing and did not err in admitting the victim's
statements during the hearing.
Finally, Veeder contends that, under Hamilton v. State,
[Fn. 4] the Municipality did not establish the veracity of the
unavailable witness. Even assuming that Hamilton applies here,
Veeder never testified, so the prosecution's obligation to establish
the declarant's veracity was not triggered. [Fn. 5]
Conclusion
We AFFIRM the judgment of the district court.  In the Court of Appeals of the State of Alaska
Kipton Veeder, )
) Court of Appeals No. A-06413
Appellant, )
v. ) Order
)
Municipality of Anchorage, )
)
Appellee. )Date of Order: 12/18/98
)
)
Trial Court Case # 3AN-94-09324CR
Before: Coats, Chief Judge, Mannheimer and Stewart, Judges.
On consideration of the Municipality's motion to publish the memorandum opinion and
judgment No. 3927, issued on November 25, 1998,
It Is Ordered:
1. The motion to publish is Granted.
2. Memorandum Opinion and Judgment No. 3927, issued on November, is Withdrawn
and Opinion No. 1612 is issued today in its place.
Entered by direction of the court at Anchorage, Alaska on December 18, 1998.
Clerk of the Appellate Courts
Marilyn May
cc: Court of Appeals Judges
Judge Olson
Central Staff
Trial Court Appeals Clerk
Publishers
Distribution:
Jason A. Steen
Gorton & Associates
737 M Street
Anchorage AK 99501
James L. Walker
Deputy Municipal Attorney
420 L Street #100
Anchorage AK 99501
FOOTNOTES
Footnote 1:
Commentary to Alaska
Evidence Rule 101(c)(2).
Footnote 2:
See Sonneman v. Knight, 790
P.2d 702, 707 (Alaska 1990);
Ward v. State, 758 P.2d 87, 89-
90 n.5 (Alaska 1988). See alsoTallent v. State, 951 P.2d 857,
860 (Alaska App. 1997)
(citations omitted).
Footnote 3:
District courts are courts
of limited jurisdiction, and do
not hear felony cases. AS
22.15.060 provides in part
that:
(a) The district
court has jurisdiction
(1) of the
following crimes:
(A) a
misdemeanor, unless otherwise
provided in this chapter;
(B) a
violation of an ordinance of a
political subdivision;
(C) a
violation of AS 04.16.050 or AS
11.76.105;
(2) to
provide post-conviction relief
under the Alaska Rules of
Criminal Procedure, if the
conviction occurred in the
district court.
(b)
Insofar as the criminal
jurisdiction of the district
courts and the superior court
is the same, such jurisdiction
is concurrent.
Footnote 4:
771 P.2d 1358 (Alaska App.
1989).
Footnote 5:
See id. at 1363.
