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Wardlow v. State (6/2/00) ap-1676
Wardlow v. State (6/2/00) ap-1676
NOTICE
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: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JERRY S. WARDLOW, )
) Court of Appeals No. A-6988
Appellant, ) Trial Court No. 3AN-95-6919 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1676 June 2, 2000]
)
Appeal from the Superior Court, Third Judicial
District, Anchorage, Milton M. Souter, Judge.
Appearances: William F. Dewey, Anchorage, for
Appellant. John A. Scukanec, Assistant Attorney General, Office of
Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
In September 1995, Jerry S. Wardlow beat, raped, and then
kidnapped a woman. A jury convicted Wardlow of second-degree
assault, two counts of first-degree sexual assault, and kidnapping.
[Fn. 1] For these crimes, Superior Court Judge Milton M. Souter
sentenced Wardlow to a composite sentence of 60 years to serve.
Wardlow now appeals his convictions and his sentence. He
alleges that he was denied his right to a speedy trial under Alaska
Criminal Rule 45. Wardlow also contends that the superior court
should have suppressed an inculpatory statement that he made to the
police following his arrest. In addition, Wardlow asserts that the
superior court should not have allowed the State to introduce
evidence of his previous assault on another woman. And Wardlow
argues that the superior court violated the constitutional guarantee
against double jeopardy when the court amended the verdict after the
jurors declared that they had made a mistake when they originally
announced their decision. Finally, Wardlow contends that his
sentence is excessive.
For the reasons explained here, we affirm Wardlow's
convictions and his sentence.
Facts of the case
On the evening of September 16, 1995, Jerry Wardlow and
a friend of his, Shawn McManners, met S.M. in a bar in downtown
Anchorage. After having a few drinks together, Wardlow, McManners,
and S.M. left the bar and went to a grocery to buy beer. They then
went to McManners's apartment, where they watched TV and continued
drinking. At some point, McManners asked Wardlow and S.M. to leave.
Wardlow's camper was parked outside McManners's house.
As he and S.M. were leaving, Wardlow asked S.M. if she wanted to
have another beer with him. S.M. agreed, and she accompanied
Wardlow into his camper.
Once inside the camper, Wardlow gave S.M. a beer and then
sat down next to her on a bed. Wardlow then began "fidgeting".
Without warning, he hit S.M. on the head with a hammer. S.M. fought
back, but Wardlow started choking her, and she lost consciousness.
She testified that she remembered Wardlow hitting her with the
hammer at least six times.
When S.M. regained consciousness, Wardlow was tying her
up with ropes and removing her shoes and pants. S.M. testified that
Wardlow was angry because she had defecated and urinated in her
pants while Wardlow was choking her. When Wardlow finished tying
S.M. up, he raped her. S.M. testified that Wardlow penetrated her
vaginally, anally, and orally.
When Wardlow finished assaulting S.M., he told her that
he was going to "take [her] out the road and do whatever he want[ed
with her] for two weeks or however long [she] last[ed] without food
or water, and then he was going to kill [her]." With S.M. tied up
inside the camper, Wardlow went outside, hitched the camper to his
truck, and drove off.
While Wardlow was driving, S.M. managed to free herself
from the ropes. Using a hammer, she pried open the door of the
camper. When Wardlow stopped for a red light at the intersection
of the New Seward Highway and Northern Lights Boulevard, S.M. ran
screaming from the camper, naked from the waist down, with her coat
wrapped around her and with Wardlow's hammer still in her hand.
S.M. ran toward a gas station where Anchorage Police Officer Glen
Daily happened to be conducting a routine traffic stop.
Officer Daily saw S.M. running toward him, screaming that
she had been raped. She pointed toward a truck pulling a camper
that was stopped at the intersection. Officer Daily got into his
patrol car and began pursuing Wardlow's vehicle. Daily stopped
Wardlow at a parking lot off Tudor Road.
When Daily ran Wardlow's name through the police computer,
he discovered that there was an outstanding felony warrant for
Wardlow's arrest. Daily arrested Wardlow on this warrant and placed
him in the patrol car. At this time, he did not advise Wardlow of
his Miranda rights [Fn. 2], nor did he interrogate Wardlow. While
Daily was driving Wardlow to the police station, Wardlow asked where
he was being taken. Daily replied that he was taking Wardlow to the
police station at Tudor Road and Bragaw Street. Wardlow then
stated, "About all they can do for me at Tudor and fucking Bragaw
is lick the shit off my dick." [Fn. 3]
At trial, Wardlow testified to an exculpatory version of
events. He claimed that S.M. had willingly come to his camper and
had consented to have sex with him. According to Wardlow, they both
undressed and began to have intercourse when Wardlow realized that
S.M. was menstruating. Wardlow told S.M. that he was no longer
interested in having sex, but that she was welcome to stay the
night. S.M. went to sleep in Wardlow's sleeping bag.
As he was going to sleep, Wardlow noticed a strong odor
in the trailer and realized that S.M. had defecated in his sleeping
bag. Wardlow tried to wake S.M., but he was initially unable to
rouse her. When he was finally was able to wake S.M., she began to
struggle with him. Wardlow told S.M. that he wanted her to clean
up and leave. He then went outside the camper so that she could
have some privacy. Wardlow claimed that he returned to the camper
30 minutes later and, assuming that S.M. had already left, he
hitched up the camper and drove off.
Wardlow's claim that he was denied a speedy trial under
Criminal Rule 45
Wardlow and the State initially agreed to a trial date of
August 11, 1997. When it appeared that another trial would preempt
this date, Wardlow's attorney and the prosecutor met with Judge
Souter to discuss alternative trial dates. The parties agreed that,
as things stood, Rule 45 would expire on September 8th. The problem
was that Judge Souter was scheduled to begin a vacation on August
23rd, and he would not return to work until Monday, September 15th.
Wardlow's attorney declared that she preferred to delay
Wardlow's trial until after Judge Souter returned; she wanted Judge
Souter to preside over the trial because of his familiarity with the
pre-trial rulings on evidentiary issues. With the defense
attorney's concurrence, the prosecutor filed a motion asking Judge
Souter to schedule Wardlow's trial for September 22nd.
When Judge Souter received this motion, he instructed his
law clerk to call Wardlow's attorney and inform her that he would
not grant the continuance unless she filed a personal waiver of Rule
45 by Wardlow. The defense attorney assured the law clerk that the
waiver would be forthcoming. Based on the defense attorney's
assurance, Judge Souter granted the continuance, set Wardlow's trial
for September 22nd, and left for vacation.
Judge Souter actually returned to his chambers on Friday,
September 13th, and he checked the court file to make sure that
Wardlow's Rule 45 waiver had been received. He discovered that no
waiver had been filed. The judge immediately instructed his
secretary to call Wardlow's attorney and remind her about the
waiver. The defense attorney met with Wardlow on the next business
day Monday, September 15th and Wardlow signed a written waiver
of Rule 45. The defense attorney filed this waiver during the noon
hour.
At this point, things began to unravel. Shortly after
Wardlow signed the waiver, he repented his decision and he
instructed his attorney to withdraw the waiver. Just before the
close of business on the 15th, the defense attorney returned to
court with a motion seeking to withdraw the previously filed waiver.
Indeed, the defense attorney did more than simply file a motion:
she made strenuous efforts to retrieve the waiver document and
remove it from the court file.
Judge Souter was alerted to this problem, and he called
the parties into court the next day Tuesday, September 16th to
formally ascertain Wardlow's position on Rule 45. At this hearing,
Wardlow told Judge Souter that he wished to repudiate his earlier
waiver. The judge immediately scheduled Wardlow's trial for the
following day September 17th.
Wardlow responded by moving to dismiss the case based on
an asserted violation of Rule 45. Judge Souter (and, later,
Superior Court Judge Eric T. Sanders) denied Wardlow's motion.
On appeal, the parties have focused much of their
attention on Wardlow's written waiver of Rule 45.
The State argues that, once Wardlow filed his written
waiver, Judge Souter was entitled to rely on that waiver until
Wardlow affirmatively indicated that he had changed his mind. The
State further argues that, even though Wardlow withdrew his waiver
a few hours after it was filed, Wardlow's change of heart did not
vacate the waiver ab initio. Rather, as this court held in State
v. Jeske [Fn. 4], the waiver was effective until Judge Souter
affirmatively ascertained that Wardlow was no longer willing to
waive his rights under Rule 45. That happened on September 16th.
Wardlow's trial began the next day. Thus, the State reasons,
Wardlow was brought to trial within the time limits of Rule 45.
Wardlow takes a different view of matters. According to
Wardlow, the waiver that he executed on September 15th was
prospective only. That is, Wardlow claims that he never intended
to waive the Rule 45 violation that had already occurred. (Rule 45
was initially to have expired on September 8th.) Rather, Wardlow
asserts, he was only willing to waive the seven days from the
signing of the waiver document (September 15th) until the scheduled
trial date of September 22nd. Wardlow insists that, even when he
signed the written waiver on September 15th, he nevertheless
reserved his right to seek dismissal of his case because he was not
tried on or before September 8th.
This is a dubious interpretation of events. As explained
above, Wardlow's attorney promised Judge Souter that Wardlow would
waive all of the time from September 8th until the newly-scheduled
trial date of September 22nd. And the defense attorney's later
actions indicate that she viewed the document as a waiver of all the
intervening time. She not only filed a motion to withdraw the
document, but she even tried to physically remove the document from
the court file. One would not expect the defense attorney to take
these actions if she thought that, even after the written waiver was
filed, Wardlow still had the right to claim that Rule 45 had expired
on September 8th.
But we need not resolve this issue of fact. Even if
Wardlow had never executed the written waiver, Rule 45 was waived
when Wardlow's attorney joined in the prosecutor's motion to set
Wardlow's trial for September 22nd. As explained above, the defense
attorney knew that Rule 45 was to expire on September 8th, she knew
that Judge Souter would not return to work until after that date,
and she wanted to hold Wardlow's trial at a time when Judge Souter
would be able to preside. When Wardlow's attorney consented to a
trial date of September 22nd, knowing that it fell outside the Rule
45 expiration date, she waived Wardlow's right to challenge that
trial date. [Fn. 5] This is true even though Wardlow was not
physically present or even consulted when his attorney agreed to the
September 22nd date. [Fn. 6]
Wardlow points out that Judge Souter stated that he did
not intend to grant the motion to continue Wardlow's trial unless
he received a written Rule 45 waiver from Wardlow. Based on Judge
Souter's statement, Wardlow argues that the judge intended to
abrogate the normal rule of waiver established by the supreme court
in DeMille and Westdahl that, despite DeMille and Westdahl, Judge
Souter decided to insist that Wardlow provide written ratification
of his attorney's action. Wardlow contends that he should have been
allowed to call Judge Souter as a witness so that the judge could
verify Wardlow's interpretation of the judge's pre-trial ruling.
We note that, when the Rule 45 issue was litigated in the
superior court, Wardlow never asked to have Judge Souter testify.
Moreover, we believe that Judge Souter's remarks indicate only a
healthy caution based on his years of experience in the criminal
justice system. It is doubtful that Judge Souter really meant that
he would refuse to extend the September 8th Rule 45 expiration date
until he received a written waiver from Wardlow. Such a ruling
would effectively give Wardlow the unilateral power to dismiss the
prosecution (by refusing to execute the waiver until after September
8th).
But in any event, the defense attorney's knowing
acquiescence in the September 22nd trial date constituted a waiver
of Wardlow's Rule 45 rights regardless of Judge Souter's subjective
intention. Both we and the supreme court have repeatedly stressed
that Rule 45 must be interpreted based on an objective appraisal of
events rather than the subjective interpretations or expectations
of the parties. [Fn. 7] We again reaffirm this view of the rule.
Even if Judge Souter had wished to, he could not abrogate the
interpretation of Rule 45 adopted by the supreme court in DeMille
and Westdahl. Once Wardlow's attorney agreed to the September 22nd
trial date (knowing that Rule 45 would otherwise expire before
then), the waiver of Rule 45 was complete.
Because Wardlow appeared in court on September 16th and
repudiated the waiver, he might argue that the Rule 45 clock started
ticking again the next day, September 17th. [Fn. 8] On the other
hand, our decisions in Sundberg v. State [Fn. 9] and Petersen v.
State [Fn. 10] indicate that Judge Souter would have been justified
in adding several days to the Rule 45 calculation in order to work
Wardlow's case back into the trial calendar or in telling Wardlow
that he would have to wait until the scheduled trial date of
September 22nd.
But we need not speculate about these matters. When
Wardlow repudiated the waiver, Judge Souter responded by setting
Wardlow's trial for the very next day. Wardlow was therefore
brought to trial within the time limits of Rule 45, and the superior
court properly denied his motion to dismiss the charges.
Judge Souter's decision to allow the State to introduce
evidence of Wardlow's prior assault on another woman
Before Wardlow's trial began, the prosecutor requested
permission to introduce the testimony of three women who claimed to
have been sexually assaulted by Wardlow. Judge Souter held a series
of hearings at which the testimony of these three alleged victims
was previewed.
Wardlow's niece, G.E., testified that, nine years before,
Wardlow pushed her to the floor and had intercourse with her. Judge
Souter excluded this testimony because he found that there was no
clear evidence as to whether this act of intercourse had been non-
consensual, and also because he was concerned that evidence of
incest would create an undue risk of unfair prejudice.
A second woman, R.L., was a prostitute; she testified that
she accepted a ride from Wardlow on Friday evening, September 16,
1995 the night before Wardlow's attack on S.M. in the present
case. R.L. testified that, as they neared their destination,
Wardlow pulled his truck to the side of the road, then grabbed R.L.
and threatened to cut her throat if she screamed. Believing that
Wardlow was about to rape her, R.L. ran from the truck. Judge
Souter excluded this testimony because R.L. was unable to identify
Wardlow in court.
The State's third witness, P.P., testified that she had
been picked up by Wardlow in the spring of 1993 (two and a half
years before the events in the present case). P.P. was living on
the street at this time. Wardlow asked if P.P. wanted a "date", but
she declined and said that she just wanted a ride. They drove to
the Northway Mall. Wardlow parked his vehicle, and P.P. used some
crack cocaine. Wardlow then asked P.P. if she would have sex with
him. When P.P. asked for money, Wardlow declared that he was "going
to take it".
Wardlow pushed P.P. down into the seat and told her to
take her clothes off. She removed one leg of her pants. Wardlow
attempted to have sex with her, but he was unable to achieve an
erection. At one point, P.P. tried to draw attention to the vehicle
by hitting the horn. Wardlow grabbed her and started to choke her.
He then threatened P.P. in words that echoed his threat to S.M. in
the present case. Wardlow told P.P. that "if [she] tried to do
anything like that again, he was going to ... kill [her] and take
[her] out in the woods [where] no one would ever find [her] again."
Hearing this threat, P.P. "freaked out" and managed to
escape from the vehicle. She called the police, but she did not
report the incident as an attempted rape until more than two years
later, when she saw the newspaper report of Wardlow's rape of S.M..
Judge Souter ruled that, under Evidence Rule 404(b)(3),
the State would be permitted to introduce P.P.'s testimony if
Wardlow raised a defense of consent. [Fn. 11] As explained above,
Wardlow did in fact testify that his sexual activity with S.M. had
been consensual. The State was therefore allowed to introduce
P.P.'s testimony.
Wardlow's attorney argued that, even if P.P.'s testimony
was admissible under Rule 404(b)(3), this evidence still should be
excluded under Evidence Rule 403 because its probative value was
outweighed by its potential for unfair prejudice. [Fn. 12] But
Judge Souter ruled that Evidence Rule 403 did not apply to evidence
admitted under Rule 404(b)(3). The judge based his ruling on the
fact that the legislature had enacted Rule 404(b)(3) expressly to
authorize evidence of a defendant's prior sexual assaults. Under
former law, such evidence would generally have been excluded as
unfair "propensity" evidence. But now, Judge Souter reasoned, the
legislature had changed the law to allow the introduction of this
evidence to prove the defendant's propensity to commit sexual
assaults the very purpose that would have been declared unfairly
prejudicial under prior law. From this, the judge concluded that
the legislature did not want trial judges to engage in Rule 403
balancing when the State offered this kind of evidence.
Judge Souter's ruling that P.P.'s testimony was
admissible under Evidence Rule 404(b)(3)
Wardlow argues that P.P.'s testimony was not admissible
under Evidence Rule 404(b)(3). On its face, Rule 404(b)(3)
authorizes the admission of evidence of a defendant's other sexual
assaults and attempted sexual assaults whenever a defendant is
charged with sexual assault and raises a defense of consent. In
contrast, Rule 404(b)(3)'s sibling provision, Rule 404(b)(1), bars
evidence of other crimes if the evidence is being offered to prove
"propensity" that is, "if the sole purpose for offering the
evidence is to prove the character of the person in order to show
that the person acted in conformity [with that character during the
episode being litigated]". But Wardlow contends that Rule 404(b)(3)
implicitly incorporates this same ban on "propensity" evidence. He
further contends that P.P.'s testimony was offered for this
forbidden purpose to prove that Wardlow was a man who
characteristically committed sexual assaults on women. Wardlow thus
concludes that the State should not have been allowed to introduce
P.P.'s testimony.
Wardlow is wrong: Evidence Rule 404(b)(3) does not
incorporate the same ban on propensity evidence as Rule 404(b)(1).
Section (b)(3) of Evidence Rule 404 was enacted by the legislature
in direct response to decisions of this court that limited the
State's ability to introduce evidence of a defendant's prior sexual
crimes when, in a prosecution for sexual assault or attempted sexual
assault, the defendant asserted that the sexual activity was
consensual. [Fn. 13] In particular, the legislature was reacting
to this court's construction of Evidence Rule 404(b)(1) our
decision that Rule 404(b)(1) barred the State from introducing
evidence of a defendant's other sexual assaults if that evidence was
offered solely to prove the defendant's proclivity to sexually
assault women. [Fn. 14]
In response to Velez and similar decisions
construing the language of current Rule 404(b)(1), the legislature
amended Evidence Rule 404(b) by adding subsections (b)(2) and
(b)(3). These provisions authorize the introduction of evidence
concerning the defendant's other wrongful acts even though that
evidence would otherwise be barred by Rule 404(b)(1).
Clark v. State, 953 P.2d 159, 163 (Alaska App. 1998).
In other words, the legislature specifically intended to
authorize the admission of evidence which, under former law, would
have been excluded because it proved only the defendant's
"propensity" to engage in sexual assault. [Fn. 15] Even assuming
that P.P.'s testimony could be characterized as purely "propensity"
evidence that is, even if her testimony was relevant only to show
that Wardlow is a man who characteristically engages in sexual
assaults on women, Rule 404(b)(3) nonetheless declares that this
testimony is admissible.
Judge Souter's ruling that any evidence admissible
under Evidence Rule 404(b)(3) can not be excluded under Evidence
Rule 403
Although we reject Wardlow's interpretation of Evidence
Rule 404(b)(3), we agree with him that Evidence Rule 403 continues
to apply to this type of evidence. Even when evidence of a
defendant's other crimes is admissible under 404(b)(3), a trial
judge is still obliged to weigh the probative value of this evidence
against its potential for unfair prejudice and to exclude the
evidence if the preponderant effect is unfair prejudice. In the
legislative commentary to the sibling provision, Rule 404(b)(2), the
legislature expressly stated that it wanted trial judges to apply
the Rule 403 balancing test when the State proposes to introduce
evidence of a defendant's other acts of sexual abuse of minors:
The intent of the legislature is that, if the
court finds that such prior bad acts are relevant to a disputed fact
at trial ... , the court must still balance the probative impact
against the prejudicial effect of the evidence pursuant to Evidence
Rule 403.
1988 House Journal 2332. We recently affirmed this legislative
intent in State v. Bingaman, where we declared that Rule 403 applies
to evidence that is admissible under Rule 404(b)(2) (4). [Fn. 16]
Judge Souter was therefore mistaken when he declared that he was
powerless to exclude evidence under Rule 403 once he found that this
evidence was admissible under Rule 404(b)(3).
However, Judge Souter was right in one aspect of his
analysis. When evidence of other sexual assaults and attempted
sexual assaults is admissible under Rule 404(b)(3), and when the
probative value of this evidence is weighed against its potential
for unfair prejudice, the trial judge's assessment of "unfair
prejudice" no longer includes the fact that the evidence tends to
prove the defendant's propensity to engage in sexual assault. As
Judge Souter correctly recognized, the legislature enacted Rule
404(b)(3) precisely because it wanted evidence of other assaults to
be admissible to prove a defendant's assaultive propensity. This
legislative purpose would be defeated if Rule 403 were interpreted
to make the other crimes evidence "unfairly prejudicial" just because
the evidence was relevant in the way the legislature intended.
Although the "propensity" aspect of other crimes evidence
does not make it unfairly prejudicial, a Rule 403 balancing may
still result in exclusion of the evidence. Indeed, Judge Souter
himself apparently engaged in an instance of this balancing when he
prohibited the State from introducing evidence relating to Wardlow's
purported sexual assault on his niece, G.E.. As noted above, Judge
Souter excluded this evidence for two reasons. First, the judge was
not convinced that the sexual activity between Wardlow and G.E. was
non-consensual. Of course, if the sexual activity was consensual,
then this evidence would not be admissible under Rule 404(b)(3)
because the incident would not qualify as a sexual assault or
attempted sexual assault.
But Judge Souter also gave a second reason for excluding
the evidence: even assuming that Wardlow had assaulted his niece,
the jury's consideration of Wardlow's case was likely to be unfairly
prejudiced if the jurors heard evidence of an incestuous assault.
This was a plausible factor to be considered under Rule 403. Even
though evidence of Wardlow's assault on his niece might have been
relevant to prove his propensity to engage in sexual assault (a
propensity that the legislature has now declared to be relevant),
the evidence also tended to prove incest a circumstance that might
lead the jury to decide the case based on antagonistic emotion or
other improper factors. [Fn. 17] Pursuant to Rule 403, Judge Souter
might have excluded the testimony on this basis or, alternatively,
he might have limited the testimony by preventing any reference to
the fact that G.E. was Wardlow's niece.
But P.P.'s testimony had no similar irrelevant and
prejudicial aspect to it. Indeed, Wardlow's assault on P.P. was
analogous in several key respects to Wardlow's assault on S.M..
Both assaults occurred when Wardlow invited women to enter his
vehicle. In both instances, Wardlow choked or attempted to choke
his victims. And in both instances, Wardlow told his victims that
he would take them out to the woods where no one could find them.
These shared characteristics indicate that Wardlow's assault on P.P.
might have had a case-specific relevance that would make it
admissible even under Evidence Rule 404(b)(1). [Fn. 18] In any
event, they do not detract from the admissibility of the evidence
under Rule 404(b)(3).
On appeal, Wardlow asserts that the evidence of his
assault on P.P. should have been excluded under Rule 403 because it
was "inflammatory" and because it "unfairly ... tip[ped] the scales
toward conviction". But behind this rhetoric, Wardlow's basic
contention is that the legislature is constitutionally prohibited
from authorizing the admission of other crimes evidence to prove
"propensity" i.e., to prove a person's character when character
is being offered as circumstantial evidence that the person acted
true to character during the episode being litigated. We rejected
this argument in Allen v. State [Fn. 19], and we reaffirm that
decision here.
Summary of our decision on this question
Evidence Rule 404(b)(3) authorizes the admission of
evidence of a defendant's other sexual assaults and attempted sexual
assaults when, in a trial for sexual assault, the defendant raises
a defense of consent. Evidence of these other assaults is
admissible to prove a defendant's propensity to sexually assault
women; that is, the evidence is admissible under Rule 404(b)(3) even
though it would be excluded under Rule 404(b)(1).
When evidence of other assaults is admissible under Rule
404(b)(3), a trial judge must still consider whether the evidence
should be excluded or limited pursuant to Evidence Rule 403.
Although the tendency of the evidence to prove the defendant's
propensity to commit sexual assaults can no longer be deemed "unfair
prejudice", other aspects of the evidence can be unfairly prejudicial
(or can be cumulative, misleading, or confusing).
In Wardlow's case, Judge Souter committed error when he
refused to consider whether P.P.'s testimony should be excluded
under Rule 403. However, P.P.'s testimony was obviously relevant;
this evidence tended to show that Wardlow had a propensity to
sexually assault women. Further, Wardlow has failed to identify any
aspect of P.P.'s testimony that was "unfairly prejudicial" in the
sense of tending to deflect the jury from proper consideration of
the case. Instead, Wardlow argues that he was unfairly prejudiced
precisely because P.P.'s testimony was probative in the way that the
legislature intended. This is not "unfair prejudice" under Evidence
Rule 403. Thus, even though Judge Souter committed error when he
failed to assess P.P.'s testimony under Rule 403, that error was
harmless. [Fn. 20]
The admissibility of Wardlow's volunteered statement to Officer
Daily while Wardlow was being transported to the police station
As explained above, S.M. escaped from Wardlow's camper
when Wardlow stopped for a red light. She approached Officer Glen
Daily and told him that the man driving the camper had raped her.
Daily pursued Wardlow and, a few minutes later, he performed a
traffic stop of Wardlow's vehicle. When Daily ran Wardlow's name
through the police computer, he discovered that there was an
outstanding felony warrant for Wardlow's arrest. Daily arrested
Wardlow on this warrant and placed him in the patrol car.
While Wardlow was sitting in the patrol car, he asked to
be taken to jail so that he could contact an attorney and then go
to bed. Officer Daily had a cellular phone with him a personal
phone that he paid for himself. The officer did not offer to let
Wardlow use this phone to call an attorney. Instead, he began
driving Wardlow to a police station.
While they were en route, Wardlow asked where he was being
taken. Daily replied that he was taking Wardlow to the police
station at Tudor Road and Bragaw Street. Wardlow then declared,
"About all they can do for me at Tudor and fucking Bragaw is lick
the shit off my dick."
On appeal, Wardlow argues that, once he expressed the
desire to speak with an attorney, Officer Daily was obliged to offer
Wardlow the use of his cellular phone and to let Wardlow make the
telephone call before he transported him to the police station.
Wardlow relies on AS 12.25.150(b), which states that "[i]mmediately
after [being arrested], a prisoner shall have the right to telephone
or otherwise communicate with the prisoner's attorney and any
relative or friend".
Wardlow contends that, when the statute speaks of
"immediate" telephone calls, this means that an arresting officer
must allow a suspect to make the calls from the field, before the
suspect is transported to a police station or other place of
detention, if a telephone is available. Thus, Wardlow argues, when
Officer Daily failed to offer Wardlow the use of his cellular phone,
the officer violated Wardlow's statutory right to make an "immediate"
phone call. Wardlow further contends that his ensuing statement
(concerning the services available at the police station) was the
unlawful fruit of Daily's decision not to offer his cellular phone
to Wardlow.
AS 12.25.150(b) guarantees an arrestee the right to make
at least two telephone calls immediately following their arrest
one to an attorney, another to a relative or friend. [Fn. 21] Two
major decisions of the Alaska Supreme Court have defined what
constitutes an "immediate" phone call. In Zsupnik v. State [Fn. 22],
the court ruled that when an arrested motorist is brought to a
police station for a breath test, the motorist is ordinarily
entitled to place the phone calls before the police administer the
breath test. And in Smith v. State [Fn. 23], the court ruled that
an arrestee who is brought to a police station before being taken
to jail is entitled to make these phone calls from the police
station that the police have no authority to make the arrestee
to wait until they arrive at the jail.
But Zsupnik and Smith do not resolve the issue Wardlow
raises. Both Zsupnik and Smith involved arrestees who were at a
police station when they requested their phone calls. Wardlow
asserts that the statutory right to communicate with an attorney
arises as soon as the police take physical custody of an arrestee
that if the arrestee asks for a telephone call, and if some type
of telecommunications equipment is available at the scene of the
arrest, the police must immediately honor the arrestee's request.
It is not clear that Wardlow's case actually raises this
issue. As explained above, Wardlow did not expressly ask to make
an immediate phone call to his attorney. Rather, it appears that
he asked to be allowed to call his attorney as soon as he arrived
at the jail. If that is what Wardlow asked for, Zsupnik and Smith
already provide the answer to Wardlow's case: the police were
obliged to honor Wardlow's request. But even assuming that Wardlow
expressed a desire to immediately communicate with his attorney, we
conclude that Officer Daily could lawfully delay this phone call
until he and Wardlow arrived at the police station.
Wardlow's argument poses a question of statutory
interpretation one that is made more difficult because the
provision granting arrestees the right to "telephone or otherwise
communicate" with attorneys, relatives, and friends was enacted in
1957, long before the advent of our current mobile communications
technology. [Fn. 24] When our legislature decreed forty years ago
that arrestees should have the right to "immediately" communicate
with their attorneys, the legislature was not thinking of police
officers carrying cellular telephones or laptop computers capable
of sending wireless faxes and e-mail.
But upon reflection, we believe that the availability of
new portable communications technology does not affect the working
of the statute. Instead, we conclude that an arrestee's statutory
right to "immediate" communication with attorneys, relatives, and
friends normally does not attach until the arrestee is brought to
a place of detention such as a police station or a jail.
The supreme court's decisions in Zsupnik and Smith stress
an arrestee's right to immediate communication. But both of those
cases involved suspects who had already been brought to a place of
detention (a police station), and the question was whether the
police could make the suspects wait for their phone calls until the
police delivered them to jail. We believe that different policies
govern situations in which the officer and the arrestee (or
arrestees) are still in the field.
Until a police officer brings an arrestee to a place of
detention, the situation remains volatile. An arrestee may be
motivated to try to escape, destroy evidence, or even attack the
officer. The officer is often in sole charge of the arrestee.
Because of these circumstances, we do not interpret AS 12.25.150(b)
to require an arresting officer to stop on the way to the police
station so that an arrestee can use a pay phone. Any rule that
obliged an arresting officer to let the arrestee leave the patrol
car and use a telephone in a public place would entail an
unjustified to risk to the officer and to other members of a public.
For similar reasons, we believe that the legislature did
not intend to require arresting officers to relinquish portable
communication devices to an arrestee while the officer and the
arrestee are still in the field. An officer may need a cellular
telephone (or other portable device) to summon aid or to otherwise
communicate with fellow officers. The cellular telephone would be
unavailable to the officer while it was in the possession of the
arrestee, and it is conceivable that the arrestee might not
willingly return the phone to the officer.
It is, of course, possible to argue that the circumstances
of arrests will vary considerably from case the case, and there will
be times when handing a cellular phone to an arrestee will pose no
significant danger to anyone. We could interpret the statute to
require that each case be analyzed on its own facts: the
seriousness of the charge for which the person was arrested, the
arrestee's level of intoxication and/or aggressiveness, the
arrestee's past history of crime, violence, and resistance to the
police, the relative number of officers and arrestees, the time of
day, and other similar considerations. But such a rule would
inevitably lead to uncertainty and litigation. Officers in the
field, faced with an arrestee's request for a telephone call, would
have to quickly assess all these factors. The factors might often
point toward differing conclusions, and a wrong decision might mean
suppression of a considerable amount of evidence.
Moreover, a rule of case-by-case analysis would not
achieve significant benefits to arrestees. The interval between an
arrest and the arrestee's arrival at a police station or jail is
generally short. Further, any interrogation during this interval
must be preceded by Miranda warnings, or the arrestee's answers will
be suppressed.
When we weigh these competing considerations, we conclude
that the purposes of the statute and the presumed intent of the
legislature are served better by a rule that defines a particular
event the arrestee's arrival at a place of detention as the
event that triggers the arrestee's right to make a phone call. We
wish to make it clear, however, that we will not allow the police
to use this rule as a ploy for denying arrestees their right to make
phone calls. If a defendant asks to telephone an attorney, a
friend, or a relative after they are taken into custody, and if the
defendant proves that the police unreasonably delayed bringing the
defendant to a place of detention, this will establish a violation
of the defendant's rights under AS 12.25.150(b).
Applying this construction of the statute to Wardlow's
case, we conclude that Officer Daily did not violate Wardlow's
rights under AS 12.25.150(b) when he refrained from offering his
cellular phone to Wardlow. Daily could lawfully require Wardlow to
wait until they arrived at the police station. The superior court
therefore properly denied Wardlow's motion to suppress the statement
he made while riding in the patrol car.
The superior court's decision is also supportable on an
alternative basis. Even assuming that Officer Daily was obliged to
offer his cellular phone to Wardlow so that Wardlow might
immediately telephone an attorney, his failure to do so did not
taint Wardlow's ensuing statement about what the officers might do
for him at the Tudor and Bragaw police station. Wardlow's statement
was not the product of interrogation; rather, it was a volunteered
statement that did not respond to or flow from anything previously
said between Wardlow and the officer. As explained above, Wardlow
initiated the conversation by asking Daily where he was being taken.
Daily answered this neutral question by informing Wardlow that he
was taking him to the police station at Tudor and Bragaw whereupon
Wardlow made his incriminatory statement.
The United States Supreme Court has repeatedly held that
even after a defendant is formally charged with a crime and the
defendant's Sixth Amendment right to counsel has attached, this
constitutional right to counsel is not violated when police officers
listen to and report a defendant's volunteered statements. Rather,
the right to counsel is violated only when the police (or their
agents) interrogate the defendant:
[T]he Sixth Amendment is not violated whenever
by luck or happenstance the State obtains incriminating
statements from the accused after the right to counsel has attached.
... [A] defendant does not make out a violation of that right
simply by showing that an informant, either through prior
arrangement or voluntarily, reported his incriminating statements
to the police. Rather, the defendant must demonstrate that the
police and their informant took some action, beyond merely
listening, that was designed deliberately to elicit incriminating
remarks.
Kuhlmann v. Wilson, 477 U.S. 436, 458-59; 106 S.Ct. 2616, 2629-630;
91 L.Ed.2d 364 (1986). As the Supreme Court stated in Brewer v.
Williams, the protection of the Sixth Amendment "[does not] come into
play if there [is] no interrogation". [Fn. 25]
We conclude that the same rule applies when the police
violate a suspect's statutory right to contact counsel under AS
12.25.150(b). Thus, even if Officer Daily had violated this statute
when he refrained from offering Wardlow the use of his cellular
telephone, this would not require suppression of Wardlow's statement
because this statement was not the product of interrogation.
For all of these reasons, we conclude that Wardlow's
statement to Officer Daily was admissible against Wardlow at his
trial.
The amendment of the verdicts to reflect the jury's decision
Wardlow was tried on several counts. Count I charged him
with kidnapping S.M., and Counts II through IV charged Wardlow with
engaging in different types of non-consensual sexual penetration of
S.M.. Count II charged vaginal penetration, Count III charged anal
penetration, and Count IV charged fellatio.
Late in the afternoon of October 3, 1997, Wardlow's jury
returned its verdicts. Judge Souter read these verdicts aloud:
The Court: Verdict One: "We, the jury,
find the defendant ... guilty of kidnapping as charged in Count
I of the indictment ... ."
Verdict Two: "We, the jury, find the
defendant ... not guilty of sexual assault in
the first degree as charged in Count II of the indictment ... ."
Verdict Three: "We, the jury, find the
defendant ... guilty of sexual assault in the first degree as
charged in Count III of the indictment ... ."
Verdict Four: "We, the jury, find the
defendant ... guilty of sexual assault in the first degree as
charged in Count IV of the indictment ... ."
After reading these verdicts, Judge Souter polled the
jurors with respect to each verdict. Count by count, the judge
first asked the jurors to raise their hands if they concurred in the
verdict, and then he asked the jurors to raise their hands if they
disagreed with the verdict. All twelve jurors indicated their
assent to the verdicts as read. Judge Souter accepted the verdicts,
then thanked the jurors for their service and excused them.
Eleven of the twelve jurors immediately returned to the
jury room to collect their belongings. (The twelfth juror stayed
behind in the courtroom to discuss the forensic evidence with the
prosecutor.) Judge Souter went into the jury room and made himself
available for questions. During the ensuing discussion, the judge
was asked to explain the possible sentence that Wardlow faced for
the various convictions. As the judge was explaining the counts and
the sentencing ranges, the jury forewoman spoke up and said that she
feared that there might have been a mistake in the verdicts.
The forewoman told Judge Souter that the jury had found
Wardlow guilty of Count II (vaginal penetration) and not guilty of
Count IV (fellatio). But Judge Souter had announced these verdicts
the other way around: "not guilty" with respect to Count II, and
"guilty" with respect to Count IV. Hearing this, Judge Souter
immediately called the jurors and the parties back into the
courtroom, and he went back on the record. This was no more than
two minutes after the jury had been excused.
The judge summarized for the parties what had occurred in
the jury room, and he declared that he had not asked the jurors any
questions concerning how they had reached their verdicts. Judge
Souter then clarified that the theory of prosecution underlying
Count II was vaginal penetration, and that the theory underlying
Court IV was fellatio. He asked the jurors whether they found
Wardlow guilty or not guilty of Count II; they replied "guilty".
He polled the jury, and all twelve jurors raised their hands to
affirm that they had found Wardlow guilty on that count. The judge
then repeated this process for Count IV. The jurors announced that
they had found Wardlow "not guilty" on that count.
Having questioned the jurors on these matters, and having
received their unanimous responses, the judge again excused the
jurors. Twenty minutes had elapsed since the jurors were first
excused. Judge Souter subsequently entered judgement against
Wardlow in accordance with what the jurors had told him: "guilty"
on Count II and "not guilty" on Count IV.
On appeal, Wardlow argues that Judge Souter violated the
constitutional guarantee against double jeopardy when he allowed the
jurors to revise their announced verdict on Count II to reflect a
verdict of "guilty". (Wardlow does not challenge the judge's
decision to amend the verdict on Count IV to "not guilty".)
Wardlow's contention is governed by our decision in
Davidson v. State. [Fn. 26] In Davidson, we held that a trial judge
is authorized to ask jurors to clarify their verdict "when it appears
that the written verdict may not accurately convey their group
decision". [Fn. 27] Just as in Davidson, Judge Souter "did not ask
[Wardlow's] jurors to justify their verdict or to explain how they
arrived at their decision. Rather, he asked the jurors to clarify
what their decision had been." [Fn. 28] Having resolved the
confusion, Judge Souter was authorized to amend the verdicts so that
they accurately reflected the jurors' decision. This procedure did
not violate the double jeopardy clause. [Fn. 29]
Wardlow's attack on his sentence
Wardlow was convicted of kidnapping and two counts of
first-degree sexual assault. He asserts that the composite sentence
he received for these crimes is excessive. (Wardlow was also
convicted of second-degree assault, but he does not challenge his
sentence for this crime; this sentence was entirely concurrent with
Wardlow's other sentences.)
Kidnapping is punishable by a sentence of between 5 and
99 years' imprisonment. [Fn. 30] First-degree sexual assault is
punishable by a sentence of between 0 and 30 years' imprisonment.
[Fn. 31] Because Wardlow was a third felony offender, he faced a
presumptive term of 25 years' imprisonment on the two sexual assault
counts. [Fn. 32] (There are no presumptive terms for kidnapping.)
Judge Souter sentenced Wardlow to a total of 30 years'
imprisonment for the two sexual assault convictions. For the
kidnapping conviction, Judge Souter imposed a consecutive sentence
of 30 years to serve (50 years with 20 years suspended). Thus,
Wardlow's composite sentence is 60 years to serve.
In Williams v. State [Fn. 33], this court reviewed and
analyzed Alaska cases involving challenges to sentences imposed on
defendants convicted of kidnapping and rape (first-degree sexual
assault). Based on our analysis of these cases, we established
benchmark sentencing ranges for defendants convicted of these
offenses. For first felony offenders, a composite term of 20 years
or less will normally be appropriate. [Fn. 34] For defendants who
have a prior felony conviction but whose criminal history is not
extensive enough to qualify them as "dangerous offenders", the
composite term normally should not exceed 30 years to serve even
when the rape involves significant violence or multiple acts of
penetration. [Fn. 35] Sentences exceeding 30 years to serve
normally should be reserved for defendants who commit a kidnapping
of prolonged duration or whose criminal history demonstrates that
they are persistent, violent criminals. [Fn. 36]
Wardlow's sentence of 60 years to serve obviously lies at
the upper end of the Williams benchmark ranges, and Wardlow contends
that this sentence can not be justified under the Williams criteria.
Wardlow argues that his case shares the characteristics of cases
within the second Williams benchmark range, and thus his sentence
should not exceed 30 years to serve.
Wardlow points out that his kidnapping of S.M. was of
relatively short duration. He acknowledges that he has several
prior felonies, but he contends that these past offenses do not
demonstrate the kind of persistent violence that might justify a
sentence exceeding 30 years. However, Wardlow's argument overlooks
several factors that make his case more serious than it might first
appear.
It is true that Wardlow's prior convictions have mainly
been for non-violent crimes. Among Wardlow's prior felonies, only
his 1973 robbery conviction involved violence; and even in that
case, the firearm used in the crime was unloaded. But Wardlow has
been in intermittent trouble with the law for the past quarter
century. His first offenses were committed in 1971, when he was 20
years old. He is now 46. In those twenty-six years, Wardlow has
been convicted of five felonies (three burglaries, one robbery, and
an arson), as well as approximately one dozen misdemeanors and
serious driving offenses. A lengthy criminal record of this type
is an appropriate sentencing consideration, even when the
defendant's current offense is not particularly serious. [Fn. 37]
But Judge Souter found that Wardlow's current offense was
particularly serious, and the record supports this conclusion. As
Judge Souter noted, Wardlow tied S.M. up and inflicted numerous
injuries on her; most notably, he hit S.M. on the head with a
hammer. Then, after Wardlow sexually assaulted S.M., he kept her
tied up in the back of the camper and attempted to drive away with
her. Based on Wardlow's statements to S.M., Judge Souter found that
Wardlow intended to "hold [S.M.] indefinitely so that he could
[sexually assault] her, however often and however long he wished,
and then he was going to discard her by killing her."
Moreover, based on P.P.'s testimony, Judge Souter found
that Wardlow had previously engaged in a similar attempt to kidnap
and rape another woman. This incident occurred in the spring of
1993 about two and a half years before the events in the present
case. In that prior case, as in the present case, Wardlow
threatened to kill his victim.
Although Judge Souter recognized that Wardlow did not fit
the definition of "dangerous offender" formulated by the American
Bar Association and employed by this court in a number of cases [Fn.
38], the judge found that Wardlow was a "dangerous offender" within
the common meaning of that phrase, and he further found that Wardlow
was a "worst offender" as that term has been defined in Alaska
sentencing cases. [Fn. 39]
Finally, and perhaps most significantly, Judge Souter
recognized that Wardlow's case was different in one key respect from
the kidnapping/rape cases summarized in Williams. Williams analyzed
cases in which the defendant committed kidnapping as a prelude to
a rape, or as a means of committing rape. In contrast, Wardlow's
kidnapping of S.M. occurred after he sexually assaulted her.
Wardlow did not kidnap S.M. so that he could accomplish
the sexual assaults charged in the indictment. Judge Souter
concluded that Wardlow's motive for the kidnapping was completely
separate "a wholly different crime [from the charged sexual
assaults], and a horrendous one at that". The judge found that
Wardlow intended to hold S.M. "[as] a sex slave and then ... discard
her like a piece of worn-out property when he was through with her"
by killing her.
Judge Souter's finding, which is amply supported by the
record, makes Wardlow's case more analogous to Morrell v. State [Fn.
40] and Post v. State [Fn. 41], cases in which the Alaska Supreme
Court upheld sentences of life imprisonment for kidnapping and rape.
As this court recognized in Williams [Fn. 42], the offenses in
Morrell and Post were significantly more serious than a typical
kidnapping/rape because the defendants in those cases intended to
hold their victims indefinitely and to repeatedly sexually assault
them. Judge Souter found that Wardlow intended to do the same thing
and then to kill his victim. Wardlow's plan was thwarted only
by the fortunate chance that S.M. managed to free herself and escape
from Wardlow's camper while she was still in the middle of the city,
where she could find help.
Having independently reviewed the record, we conclude that
the facts of Wardlow's current offense, his lengthy criminal record,
and his previous attempt to kidnap and rape another woman all
support Judge Souter's conclusion that Wardlow's case is unusually
aggravated and that Wardlow should receive a sentence significantly
above the 20- and 30-year benchmark ranges announced in Williams.
We find that Wardlow's composite sentence of 60 years to serve is
not clearly mistaken. [Fn. 43]
Conclusion
For the reasons explained here, we uphold Wardlow's
convictions and his sentence. The judgement of the superior court
is AFFIRMED.
FOOTNOTES
Footnote 1:
AS 11.41.210(a), AS 11.41.410(a), and AS 11.41.300(a),
respectively.
Footnote 2:
See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d
694 (1966).
Footnote 3:
When Daily heard Wardlow make this statement, he immediately
pulled over and transcribed Wardlow's words.
Footnote 4:
823 P.2d 6 (Alaska App. 1991).
Footnote 5:
See DeMille v. State, 581 P.2d 675, 677 (Alaska 1978).
Footnote 6:
See Westdahl v. State, 592 P.2d 1214, 1217-18 (Alaska 1979) (At
the defendant's arraignment, the defense attorney agreed to a trial
date beyond the time limits of Rule 45. Even though the defendant
was not personally present at the arraignment, the supreme court
held that, if the attorney understood that the proposed trial date
violated Rule 45, the attorney's agreement to that date constituted
a waiver of the defendant's right to object to the trial date under
Rule 45.); Snyder v. State, 524 P.2d 661, 664 (Alaska 1974) ("[We
reject] Snyder's contention ... that the waiver of [Rule 45] was not
legally effective since it was entered by counsel in his absence.
... We are of the view that our decisions [requiring the personal]
waiver of fundamental constitutional rights are inapplicable ... to
the Criminal Rule 45(d)(1) excluded period issue raised herein.").
Footnote 7:
See, e.g., Deacon v. State, 575 P.2d 1225, 1228-29 (Alaska
1978); Snyder v. State, 524 P.2d 661, 663-64 (Alaska 1974); State
v. Clouatre, 516 P.2d 1189, 1191 (Alaska 1973); Angaiak v. State,
847 P.2d 1068, 1072-73 (Alaska App. 1993); Russell v. Anchorage, 626
P.2d 586, 589 (Alaska App. 1981).
Footnote 8:
See Nickels v. State, 545 P.2d 163, 165 (Alaska 1976) (when an
event occurs that starts or restarts the running of Rule 45, the
calculation begins from the day after that event).
Footnote 9:
657 P.2d 843 (Alaska App. 1982), as modified on rehearing, 667
P.2d 1268, 1270 (Alaska App. 1983).
Footnote 10:
838 P.2d 812, 815 (Alaska App. 1992).
Footnote 11:
Evidence Rule 404(b)(3) states that, in prosecutions for sexual
assault, "evidence of other sexual assaults or attempted sexual
assaults [committed] by the defendant ... is admissible if the
defendant relies on a defense of consent."
Footnote 12:
Evidence Rule 403 states, in pertinent part, that "[relevant]
evidence may be excluded if its probative value is outweighed by the
danger of unfair prejudice".
Footnote 13:
See SLA 1994, ch. 116, sec. 1 ("Findings and Purpose"): "[I]n
sexual assault and attempted sexual assault cases in which the
defendant claims that the victim voluntarily 'consented' to the
sexual activity, further amendment [of Evidence Rule 404(b)] is
necessary to permit the prosecution to rebut this claim by
introducing evidence of other sexual assaults or attempted sexual
assaults by the defendant."
Footnote 14:
See Velez v. State, 762 P.2d 1297, 1304 (Alaska App. 1988)
("[T]he state cannot offer evidence that [the defendant] ... had a
disposition to force his affections on unwilling women, and then
[ask the trier of fact to] infer from that disposition that [the
defendant] forced his affections on [the victim in the present
case]. Despite its relevance, this evidence is absolutely precluded
[by Evidence Rule 404(b)(1) ].").
Footnote 15:
See Smithart v. State, 946 P.2d 1264, 1270 (Alaska App. 1997),
reversed on other grounds, 988 P.2d 583 (Alaska 1999), construing
the sibling provision, Evidence Rule 404(b)(2).
Footnote 16:
991 P.2d 227, 230 (Alaska App. 1999).
Footnote 17:
See Commentary to Evidence Rule 403, fifth paragraph: "'Unfair
prejudice' [in this] context means an undue tendency to suggest
decision on an improper basis, commonly, though not necessarily, an
emotional one."
Footnote 18:
See Smithart, 946 P.2d at 1271-73 (discussing the definition
of "propensity", and contrasting evidence of other crimes that merely
demonstrate a defendant's criminal character with crimes that share
"case-specific similarities" with the crime being litigated).
Footnote 19:
945 P.2d 1233, 1237-38 (Alaska App. 1997).
Footnote 20:
See Silvernail v. State, 777 P.2d 1169, 1174-78 (Alaska App.
1989) (when the trial court failed to perform the required analysis
under Evidence Rule 403, this court weighed the evidence and
determined whether it should have been admitted or excluded).
Footnote 21:
See Zsupnik v. State, 789 P.2d 357, 359-360 (Alaska 1990).
Footnote 22:
789 P.2d at 359-361.
Footnote 23:
948 P.2d 473, 476 n.3 (Alaska 1997).
Footnote 24:
Our current statute, AS 12.25.150(b), was enacted in 1962 by
the first state legislature. See SLA 1962, ch. 34, sec. 2.16. But
the
pertinent language of AS 12.25.150(b) was drawn from a territorial
statute, ACLA sec. 66-5-34, that was enacted in 1957. See Laws
1957,
ch. 128, sec. 1. This earlier statute read: "Immediately after an
arrest, any prisoner shall have the immediate right to forthwith
telephone or otherwise communicate with his attorney or any relative
or friend[.]"
Footnote 25:
430 U.S. 387, 400; 97 S.Ct. 1232, 1240; 51 L.Ed.2d 424 (1977).
Accord, United States v. Hearst, 563 F.2d 1331, 1347-48 (9th Cir.
1977); State v. William, 807 P.2d 1292, 1310 (Kansas 1991); People
v. Williams, 751 P.2d 901, 909-910; 245 Cal.Rptr. 635, 643-44 (Cal.
1988); State v. Adkins, 608 N.E.2d 1152, 1158 (Ohio App. 1992).
Footnote 26:
975 P.2d 67 (Alaska App. 1999).
Footnote 27:
Id. at 73.
Footnote 28:
Id.
Footnote 29:
See United States v. Stauffer, 922 F.2d 508, 513 (9th Cir.
1990); United States v. Dotson, 817 F.2d 1127 (5th Cir. 1987),
vacated in part on rehearing, 821 F.2d 1034 (1987).
Footnote 30:
See AS 12.55.125(b).
Footnote 31:
See AS 12.55.125(i).
Footnote 32:
See AS 12.55.125(i)(4). Wardlow was convicted of burglary in
1971, a robbery and two more burglaries in 1973, and arson in 1987.
Footnote 33:
800 P.2d 955 (Alaska App. 1990), modified on reconsideration,
809 P.2d 931 (1991).
Footnote 34:
Williams, 800 P.2d at 959.
Footnote 35:
Id. at 959-960.
Footnote 36:
Id. at 960.
Footnote 37:
See Larson v. State, 613 P.2d 1251, 1252 (Alaska 1980).
Footnote 38:
See, e.g., Williams v. State, 759 P.2d 575, 577-78 (Alaska App.
1988); McCombs v. State, 754 P.2d 1129, 1133 n.1 (Alaska App. 1988)
(Singleton, J., concurring and dissenting); Skrepich v. State, 740
P.2d 950, 953-54 (Alaska App. 1987).
Footnote 39:
See, e.g., State v. Wortham, 537 P.2d 1117, 1120 (Alaska 1975);
Napayonak v. State, 793 P.2d 1059, 1062 (Alaska App. 1990).
Footnote 40:
575 P.2d 1200, 1202-03, 1213 (Alaska 1978).
Footnote 41:
580 P.2d 304, 305-06, 309 (Alaska 1978).
Footnote 42:
800 P.2d at 960.
Footnote 43:
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (an
appellate court is to affirm a sentencing decision unless the
decision is clearly mistaken).
