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John v State (11/16/2001) ap-1772
John v State (11/16/2001) ap-1772
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
VIRGIL JOHN, )
) Court of Appeals No. A-7252
Appellant, ) Trial Court No. 4FA-S97-1232 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1772 November 16, 2001]
)
Appeal from the Superior Court, Fourth Judicial
District, Fairbanks, Ralph R. Beistline, Judge.
Appearances: Marcia E. Holland, Assistant
Public Defender, Fairbanks, and Barbara K. Brink, Public Defender,
Anchorage, for Appellant. Kenneth M. Rosenstein, 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.
STEWART, Judge.
MANNHEIMER, Judge, concurring.
This appeal requires us to construe Alaska Criminal Rule
18, the rule that specifies the proper site for holding trial in a
criminal case. Virgil John was charged with committing a felony in
Tetlin, a village located near Alaska's eastern border with Canada.
Tetlin lies about twenty air miles from Tok, a town that the Alaska
Supreme Court has designated as a suitable site for felony trials.
But based on an interpretation of Rule 18 that this court adopted
in Wilson v. State, [Fn. 1] the superior court scheduled John's
trial in Fairbanks (over two hundred miles away), and the court
refused John's later request to move the trial to Tok.
For the reasons explained here, we conclude that our
Wilson decision is mistaken. Correctly interpreted, Criminal Rule
18 specifies Tok as the presumptive site for holding John's trial.
Thus, John's later request to move the trial to Tok should have been
granted. Because the superior court denied that request, we reverse
John's conviction.
The Alaska Supreme Court's decision in
Alvarado, and the supreme court's effort to
codify Alvarado in Criminal Rule 18
In Alvarado v. State, [Fn. 2] our supreme court recognized
the "profound cultural differences [that] exist between the Native
villages and urban areas of Alaska." [Fn. 3] Because of the "gulf
which separates the mode of life of the typical Alaskan villager
from the type of existence led by most residents of [the larger]
cities of the state," [Fn. 4] the supreme court held that it was
unlawful for juries drawn solely from those larger cities to decide
the fate of defendants charged with committing crimes in rural
villages. The court declared that the Alaska Constitution
guarantees criminal defendants the right to have their jury selected
from a pool that represents "a fair cross section of the community
in which the crime occurred." [Fn. 5]
Alaska Criminal Rule 18 was designed to implement the
Alvarado decision. Pursuant to section (a) of this rule, [Fn. 6]
the Alaska Supreme Court drew a venue map that divides the state
into twenty-five superior court venue districts, each centered
around a city or town designated as a suitable site for felony
trials. [Fn. 7] Section (b) of Rule 18 then sets out a four-part
formula for identifying the presumptive trial site for a crime
committed in any given location in Alaska. Under Rule 18(b), the
presumptive site for a criminal trial is:
(1) The existing court location;
(2) Nearest to the situs of the alleged crime;
(3) Within the venue district;
(4) That has a judge and facilities
for either a six-person or twelve-person jury as is necessary to the
case.
The supreme court's goal was that, by using Rule 18(b) in
combination with the venue map, judges would be able to identify a
presumptive trial site where the composition of the jury pool could
be expected to satisfy Alvarado.
Subsections (c) and (d) of Rule 18 authorize the
administrative director of the court system to augment the trial
sites identified on the supreme court's venue map. Under Rule
18(c), the administrative director sets minimum standards for trial
sites by evaluating such factors as the available courtroom
facilities and the availability of transportation, housing, and food
for the trial participants. Using these standards, the
administrative director conducts an annual survey of towns and
villages to see which ones meet these standards. The administrative
director then publishes a list of additional trial sites,
designating whether these additional sites are approved "for six-
person juries [i.e., district court trials], twelve-person juries
[i.e., superior court trials], or both." [Fn. 8]
Although a defendant's presumptive trial site is still
determined under Rule 18(b) (i.e., is still selected from among the
sites identified on the supreme court's venue map), Rule 18(e) gives
a defendant the right to ask for trial in another approved location
if that location "is the community within the venue district ...
nearest the place where the alleged crime was committed." However,
the defendant must exercise this right promptly or it is forfeited.
The defendant must make the request "prior to or at the entry of a
plea in felony cases, [and] within five days of the entry of a plea
in misdemeanor cases."
Finally, subsection (f) provides a "safety valve" for
unusual cases where the above rules still do not yield a trial site
that complies with Alvarado. Rule 18(f) declares that if the trial
site identified by subsections (a)-(e) "will not provide a petit
jury [pool] which is a representative cross-section of the
appropriate community," the court may specially designate an
alternative jury pool using the rules set forth in Administrative
Rule 15(b)-(c).
Our decision in Wilson v. State, and why the
superior court scheduled John's case in Fairbanks rather than Tok
The defendant in this case, Virgil John, was charged with
committing felonies in the village of Tetlin. On the supreme
court's venue map, Tetlin lies within the Tok venue district, so it
would seem that, initially, John's trial should have been scheduled
in Tok. Instead, the superior court scheduled John's trial in
Fairbanks.
In doing so, the superior court followed a long-standing
practice in the Fourth Judicial District: setting all felony cases
for trial in either Fairbanks or Bethel unless the defendant
affirmatively requests a change of venue to another felony trial
site closer to where the crime occurred. This practice appears to
be based on the interpretation of Rule 18(b) that this court adopted
in Wilson v. State.
The defendant in Wilson was charged with committing a
felony in Delta Junction. On the supreme court's venue map, the
town of Delta Junction is identified as a suitable site for superior
court trials, and the Delta Junction venue district is drawn around
the town. Nevertheless, with the acquiescence of the parties, the
superior court scheduled Wilson's trial in Fairbanks. On the
morning of trial, Wilson discharged his attorney, elected to proceed
pro se, and demanded trial in Delta Junction. (He claimed that his
attorney had never informed him that the trial would be held in
Fairbanks.) The superior court refused to move the trial to Delta
Junction. [Fn. 9]
Although the superior court's action might have been
affirmed under the theory that Wilson's motion was untimely, this
court affirmed the superior court's ruling under another theory:
we rejected Wilson's underlying premise that he was entitled to have
his trial in Delta Junction in the first place.
As explained above, Criminal Rule 18(b)(4) states that a
criminal trial should presumptively be held at the existing court
location within the venue district "[having] a judge and facilities
for either a six-person or twelve-person jury as is necessary to the
case." In Wilson, this court interpreted clause (4) to mean "having
a resident judge of the appropriate level of court and facilities
for either a six-person or twelve-person jury as is necessary to the
case."
As interpreted in Wilson, Criminal Rule 18(b) directs the
superior court to initially set a felony case for trial at the
closest existing court location that has a resident superior court
judge. Fairbanks and Bethel are the only two cities within the
Fourth Judicial District that have resident superior court judges.
Fortified by Wilson's interpretation of Rule 18(b), the superior
court followed the practice of scheduling all Fourth Judicial
District felony trials either in Fairbanks or in Bethel, depending
upon which city was closer to the site of the crime. This is how
John's trial came to be scheduled in Fairbanks rather than Tok.
John's attorney did not object to the superior court's
action, apparently because he believed the case would be resolved
through a plea bargain rather than a trial. But several months
later, when the parties could not reach a mutually acceptable plea
bargain, John changed attorneys and announced that he would go to
trial. At that time, John asserted his rights under Alvarado and
asked the superior court to move the trial to Tok. The superior
court ruled that John's motion was untimely. Even though John
argued that the Alvarado decision called for his trial to be held
in Tok, the superior court believed that Rule 18(b) the rule
designed to codify Alvarado called for John's trial to be held
in Fairbanks. The superior court therefore viewed John's motion for
change of venue as a request for an alternative trial site under
Rule 18(e), and the court denied the request as untimely. (As
explained above, Rule 18(e) states that a request for an alternative
trial site in a felony case must be made by the time the defendant
enters a plea.)
Why we now conclude that the interpretation of
Rule 18 in Wilson is wrong
As explained above, Rule 18(b) sets out a four-part test
for identifying the presumptive site of a criminal trial:
(1) The existing court location;
(2) Nearest to the situs of the alleged
crime;
(3) Within the venue district;
(4) That has a judge and facilities for
either a six-person or twelve-person jury as is
necessary to the case.
In Wilson, we focused on clause (4) and, in particular, the phrase
"has a judge." Based on this phrase, we concluded that no court
location could qualify as a presumptive trial site under Rule 18(b)
unless it had a resident judge of the appropriate level of court
(superior court for felonies, district court for misdemeanors).
At first blush, this may seem to be an obvious reading of
the rule. But, on closer inspection, Wilson's interpretation of
clause (4) appears to contradict clause (3). In addition, Wilson's
interpretation of clause (4) leads to results that appear to be
inconsistent with the supreme court's designation of felony trial
sites on its venue map. Finally, and most important, Wilson's
interpretation of clause (4) leads to results that are inconsistent
with the supreme court's decision in Alvarado.
As we have already noted, the supreme court's venue map
divides Alaska into twenty-five superior court venue districts, each
one containing a city or town that the supreme court has designated
as a suitable site for felony trials. Clause (3) of Rule 18(b)
states that the presumptive trial site must be an existing court
location "within the venue district." One would suppose that the
phrase "within the venue district" means "within the venue district
where the crime occurred." But if this is true, Wilson's
interpretation of clause (4) brings it into conflict with clause
(3).
Although there are twenty-five superior court venue
districts, only half of them contain cities or towns with resident
superior court judges. [Fn. 10] If clause (3) of Rule 18(b)
requires the presumptive trial site to be located in the same venue
district as the crime, Wilson's interpretation of clause (4) ensures
that this will not be true for crimes committed in half of the
superior court venue districts in the state the twelve venue
districts where there is no resident superior court judge.
It is possible to resolve this conflict by interpreting
clause (3) differently. Instead of reading clause (3) to mean that
the presumptive trial site must be located in the venue district
where the crime occurred, one could interpret the "venue district"
provision of clause (3) as being the introductory clause to the "has
a judge and facilities" language of clause (4). In other words,
instead of requiring the presumptive trial site to be located in the
same venue district as the crime, clause (3) would require the
presumptive trial site to be selected from existing court locations
in the closest venue district that has an appropriate judge and
facilities for an appropriately sized jury.
This, in essence, is the result we reached in Wilson. We
held that a defendant charged with a crime committed in the Delta
Junction venue district (or the Tok venue district) was not entitled
to a presumptive trial site within that venue district. Rather, the
presumptive trial site was Fairbanks the designated felony trial
site located in the closest venue district that had a resident
superior court judge and any request to move the trial elsewhere
(such as Delta Junction or Tok) had to be made under Rule 18(e).
But if this is how the supreme court intended Rule
18(b)(3)-(4) to be interpreted, there would seemingly be no reason
for the supreme court to go to the trouble of defining separate
venue districts for Delta Junction and Tok. It would be sufficient
to designate Delta Junction and Tok as alternative felony trial
sites within a greater Fairbanks venue district. Similarly, there
would be no apparent reason for the supreme court to define any of
the other ten superior court venue districts that have no resident
superior court judge.
Moreover, the result in Wilson is inconsistent with the
lengthy table of venue sites that accompanies Criminal Rule 18.
This table lists all the cities, towns, and villages in Alaska; for
each one, the table specifies a district court trial site and a
superior court trial site. It appears that the supreme court
intended this table to be a "quick reference" a list that judges
and attorneys could use to easily find the presumptive trial site
specified by Criminal Rule 18(b)'s four-part venue test for crimes
committed in any of the listed cities, towns, and villages.
This table does not say that Fairbanks is the presumptive
trial site for felonies committed in Delta Junction and Tok.
Rather, for crimes committed in Delta Junction and the surrounding
smaller communities (Big Delta, Dot Lake, Dry Creek, and Healy
Lake), Delta Junction is listed as the presumptive superior court
(i.e., felony) trial site. Similarly, for crimes committed in Tok
and the surrounding communities (Alcan, Boundary, Chicken, Chisana,
Eagle, Eagle Village, Nabesna, Northway, Northway Junction,
Tanacross, Tetlin, and Tetlin Junction), the table specifies Tok as
the presumptive superior court trial site.
Finally, and most importantly, Wilson's interpretation of
Rule 18(b) tends to defeat, rather than implement, a defendant's
rights under Alvarado. Because of the substantial differences
between rural village life and the life of Alaska's city dwellers,
Alvarado guarantees criminal defendants the right to a jury pool
that represents a fair cross-section of the community where the
crime occurred. Criminal Rule 18 was designed to help judges locate
a trial site where such a jury pool is available.
But under the interpretation of Rule 18(b) that we adopted
in Wilson, Fairbanks an urbanized, mostly non-Native city of
30,000 becomes the presumptive trial site for every felony
committed in the rural villages and towns of the eastern Interior.
[Fn. 11] In essence, Wilson says that when a felony is committed
in one of these villages and towns, if the defendant wants the trial
to be held in a location where the jury pool meets the requirements
of Alvarado, the defendant has to promptly file a motion under Rule
18(e) or forever lose that right. This result tends to defeat the
very purpose of Rule 18, which is to preserve and implement the
rights guaranteed by Alvarado.
For these reasons, we conclude that Wilson's
interpretation of Rule 18(b) is mistaken. When Rule 18(b)(3)
specifies that the presumptive trial site shall be located "within
the venue district," it means "in the appropriate venue district
(superior court or district court) containing the site where the
crime is alleged to have occurred." In John's case, a felony is
alleged to have occurred in Tetlin. The presumptive trial site must
therefore be located within the Tok superior court venue district.
Admittedly, this interpretation has its own difficulties.
Rule 18(b)(4) states that the presumptive trial site must be a court
location "[t]hat has a judge." Tok has a resident magistrate, but
it does not have a resident judge. The situation is the same in
Delta Junction. All told, twelve superior court venue districts
have no resident superior court judge, and only two of those venue
districts (Homer and Valdez) have a resident district court judge.
The remaining ten are served by magistrates.
It is difficult to tell what the supreme court had in
mind. On the one hand, the court defined a dozen felony venue
districts containing no resident judge, but yet containing an
identified felony trial site (for example, Tok and Delta Junction).
On the other hand, the court specified in Rule 18(b)(4) that a court
location does not qualify as a presumptive trial site unless it "has
a judge." These two actions appear to be irreconcilable.
But as we have just explained, if we interpret Rule 18 as
we did in Wilson attributing paramount importance to Rule
18(b)(4)'s requirement of a "judge" we end up with a rule that
tends to defeat the rights guaranteed by Alvarado. So, instead, we
must interpret Rule 18 in a new way by giving paramount importance
to the venue districts and the felony trial sites designated by the
supreme court on its venue map, and by interpreting clause (3) to
require presumptive trial sites to be located within the venue
district where the crime occurred.
We now hold that when a felony is committed within one of
the twenty-five superior court venue districts drawn by the supreme
court, the trial should presumptively be held in the city or town
identified by the supreme court as the felony trial site of that
district even though that city or town may have no resident
superior court judge. If there is another felony trial site on the
administrative director's list of approved sites that is closer to
the place where the crime is alleged to have occurred, the defendant
can ask to have the trial moved there under Rule 18(e).
Based on our revised interpretation of Rule 18(b), John's
trial should presumptively have been held in Tok, not Fairbanks.
John did not need to invoke Rule 18(e) to obtain a trial in Tok; his
trial should have been scheduled there in the first place. Because
John was denied his right to trial in Tok, his conviction must be
reversed.
Other issues in the case
Although we are reversing John's conviction, we take this
opportunity to address certain other issues in the event John's case
is retried. Before this case went to trial, John had entered a no-
contest plea and the superior court had ordered a presentence
report. John prepared a hand written statement about the offense
for inclusion in the report. The superior court later permitted
John to withdraw his plea, and John moved to suppress the statement
on a number of grounds. The court denied relief, and the statement
was admitted at trial. We now address the court's rulings on John's
motion to suppress this statement.
The grand jury indicted John on three counts of second-
degree sexual abuse of a minor. [Fn. 12] John then reached a plea
agreement with the state, pleaded no contest to one count, and the
State dismissed the other two counts.
The superior court scheduled the case for sentencing and
ordered a presentence report as required by Alaska Criminal Rule
32.1. Also, the court ordered John to "report to the Department of
Corrections so that they can begin the presentence report, and [the
judge] can do the sentencing in this matter[.]" The superior court
warned John that he needed to be back for sentencing on December 9
and that failure to appear "is a felony subject [to] up to another
five years in prison."
Glenn Bacon, a probation officer, was assigned to prepare
the presentence report. On October 1, 1997, Bacon sent John's
attorney a letter to John, which included a presentence
questionnaire. The letter provided in relevant part:
[The court] has requested I do a presentence
report for your case[.] This information is
helpful for [the court]. Please fill out the enclosed presentence
worksheet to the best of your ability, sign the Authorization to
Release form, and return everything to our office in the enclosed
envelope. Call me as soon as you receive the forms. It is very
important that you get this done right away. My target date for
completing the report is October 24, 1997, so I will need your
information as much prior to that time as possible. If you have any
questions, please call our toll-free number listed above.
John's attorney forwarded the presentence report packet to John
without advising John how to respond to the questions. Because John
had otherwise failed to follow release conditions, the court issued
a bench warrant for John's arrest.
On October 28, 1997, John called Bacon and scheduled an
appointment for November 3. When John arrived for the appointment,
he had the questionnaire with him and told Bacon that "he might get
something to [Bacon] within a day or two." Bacon then took John to
the Alaska State Troopers' office, where the troopers arrested John
on the bench warrant. The next day, John called Bacon from jail and
informed Bacon that he had completed the presentence questionnaire.
The last page of the questionnaire was entitled
"Statement/Remarks." It provided as follows:
This is your opportunity to make any statement
you would like to have presented to the Court. It will be included
in the pre-sentence report just as it is written and will not be
changed in any way. It may help to know that the Court is
particularly interested in your statements about the following:
1. Your version of the offense what
happened?
2. Why were you involved why did you
act as you did?
3. How do you feel about the offense,
what you did, the results of your
actions for you and others?
4. What are your plans or goals?
5. What are your thoughts concerning the
possibility of any jail time imposed in your case?
John wrote the following by hand:
I feel very bad about the situation. It
should never happen. Just something overcame me. I never did that
before and never will again. I move from Tetlin to Mentasta and
start a new life with Jesus. I met Jesus last June in Anchorage and
living for the Lord. My plans are to go to work and start taking
care of my kids and move to Anchorage with my girlfriend Phyllis
Dahling.
If I get any jail time I deserve it
because I violated God's child. If it's possible I would like to
get a fine so I can pay for the kid[s] counseling. I can't do much
in jail because I got child support to pay and they take all my
money.
About a month later, the superior court appointed a new
lawyer for John so that John could move to withdraw his plea. The
court allowed John to withdraw his guilty pleas, and the case was
reset for trial on all three counts.
John filed a motion to suppress the handwritten statement
the day before trial was scheduled to begin. In the motion, John
raised several claims: the State had obtained his statement in
violation of Miranda, [Fn. 13] the statement was involuntary, the
statement was obtained in violation of his due process rights, and
the court should exclude the statement under Evidence Rule 410(a).
[Fn. 14]
Instead of starting trial as scheduled, the court
conducted an evidentiary hearing and heard arguments on John's
motion. Before the witnesses were called, John told the court that
his argument was narrower than the issues raised in his pleadings:
"Judge, ... I'm actually making a threefold argument. First is
Miranda, second is voluntariness, third is kind of a probative value
versus prejudice [argument]."
John and Bacon testified. John said that when he changed
his plea he had not understood that a presentence report would be
prepared. He also testified that he did not think that he had any
choice but to complete the presentence questionnaire. John claimed
that when he contacted Bacon, he did not understand that he had the
right to an attorney or to remain silent.
After the court heard this evidence, John argued only the
Miranda claim and the voluntariness claim. The State challenged
John's Miranda and voluntariness claims. In reply, John concluded
his argument as follows: "And for the Miranda violations, for the
voluntariness, and for the prejudice, Judge, [the statement] should
be excluded." John did not argue due process or mention Evidence
Rule 410. The court denied John's motion to suppress, and the trial
began the next day. After jury selection, John returned to the
court's ruling on the written statement, and focusing on the claim
that the statement was more prejudicial than probative, asked the
court to reconsider its ruling. The court declined to change the
ruling and admitted the handwritten statement at trial.
John makes several claims why the superior court should
have suppressed the handwritten statement. First, John argues that
his Fifth Amendment rights were violated because he was subjected
to custodial interrogation when he was completing the presentence
worksheet, and he had not been advised of his rights under Miranda.
John argues that he was subjected to custodial interrogation because
he was completing the worksheet in connection with a criminal
prosecution, because he had been ordered by a judge to cooperate
with the Department of Corrections in preparing the presentence
report, and because he had been told by Bacon, a probation officer,
that he should complete the worksheet as thoroughly as possible to
receive a fair sentence. John testified that he was not informed
at any time that he could refuse to answer the questions in the
worksheet.
The State argues that John's statement was not the product
of a custodial interrogation requiring Miranda warnings, even though
he was incarcerated at the time he filled out the questionnaire.
The State contends that John was simply responding to Bacon's "broad
request" that he complete the questionnaire and that there was no
evidence that Bacon or anyone else suggested that John incriminate
himself. The State argues that John could have left the page
requesting the statement blank or could have refused to respond to
the questionnaire entirely. The State also notes that the
directions asked John to make any statement "you would like" to have
presented to the Court. The State asserts that this language
"clearly conveys" that it was John's personal decision whether or
not to make a statement.
Before a person may be subjected to custodial
interrogation, that person must be informed of the right against
self-incrimination and the right to counsel. [Fn. 15] The superior
court found that John was not subjected to custodial interrogation.
The court found that John had filled out the form while he was alone
and that John could have chosen to complete the questionnaire or to
stop at any time. John has not attacked these findings.
Furthermore, John was represented by counsel when he answered this
questionnaire, which he received from his attorney's office. John
had several days in which to discuss the case and the questionnaire
with his attorney. Based on our independent review of the record,
we agree with the superior court's conclusion that John did not have
to receive Miranda warnings before answering the questionnaire. [Fn.
16]
Next, John argues that his statement was involuntary
because he was presented with the choice of either fully answering
the questions in the presentence worksheet or risking an unjust
sentence. In support of his contention, John cites Beavers v. State
[Fn. 17] and Raphael v. State [Fn. 18] for the proposition that a
statement is involuntary if it is extracted by some action on the
part of a State agent that is sufficiently compelling to overbear
the person's will to resist.
John asserts that the circumstances in his case were
sufficiently compelling to overbear his will. He notes that he was
ordered by the court to cooperate in the preparation of a
presentence report, was warned by the court that there would be
adverse consequences if he did not appear for sentencing, was told
by a State agent (a probation officer) that he was to fill out the
presentence report as completely as possible, and was remanded into
custody at the same time he was directed to complete the report.
John also notes that the probation officer testified that it was his
practice to "suggest ... that the more complete the picture that the
court has when it comes to sentencing, the 'fairer' the sentence
will be." John testified that he believed he had no choice but to
answer the questions in the presentence worksheet.
A trial judge considering a voluntariness challenge to the
admission of a defendant's statement must conduct a three-step
inquiry. [Fn. 19] First, the trial judge must find the external
facts surrounding the statement. [Fn. 20] These findings will be
upheld unless they are clearly erroneous. [Fn. 21] Second, from
these facts, the trial judge must infer the internal mental state
of the defendant. [Fn. 22] Third, the judge "must have assessed the
legal significance of this inferred mental state" whether the
defendant made a voluntary waiver of his Fifth Amendment rights.
[Fn. 23] As to the second and third findings, we examine the entire
record and make independent determinations, based on the totality
of the circumstances surrounding the statements sought to be
suppressed. [Fn. 24] The circumstances relevant to the court's
determination of voluntariness are "the age, mentality, and prior
criminal experience of the accused; the length, intensity and
frequency of interrogation; the existence of physical deprivation
or mistreatment; and the existence of threat or inducement." [Fn.
25] The prosecution must prove the voluntariness of the confession
by a preponderance of the evidence. [Fn. 26]
Superior Court Judge Ralph R. Beistline found that John
was not subjected to interrogation and that his statement was
voluntary. He found that John was alone and "simply had to fill
[the statement] out, or not, as he chose, and certainly could stop
any time he wanted." He found that John did not face "specific
threats." Judge Beistline's factual findings are supported by
substantial evidence in the record. From our own review of the
record, we agree with Judge Beistline's conclusion that John's
statement was voluntary.
John also claims that the statement should have been
excluded under Evidence Rule 410. Evidence Rule 410(a)(ii) provides
that "evidence ... of statements ... made in connection with [a
plea] is not admissible ... if [a] plea ... is withdrawn[.]" John
argues that his handwritten statement was made "in connection with"
his withdrawn plea and that it should have been excluded under
Evidence Rule 410.
In the superior court, John cited no case law supporting
his claim that his statement should be excluded under Evidence Rule
410. His motion merely quoted portions of Rule 410. When the
superior court held the evidentiary hearing to consider John's
motion to suppress, John did not raise his Rule 410 claim. In fact,
John never mentioned or relied on Rule 410 during the evidentiary
hearing on his motion to suppress and explicitly argued other
grounds: "First is Miranda, second is voluntariness, third is kind
of a probative value versus prejudice [argument]." Furthermore, the
superior court did not mention Evidence Rule 410 in its rulings.
We note that there is case law from other jurisdictions
excluding statements analogous to those John made, [Fn. 27] and
there is case law that does not exclude such statements. [Fn. 28]
In addition, the Commentary to Evidence Rule 410 indicates that one
of the basic goals of the rule is to insure fair treatment after
pleas are withdrawn:
To insure fair treatment for defendants
whose pleas are entered and later withdrawn or overturned, this rule
provides that the slate should be wiped clean and that no part of
the plea process can be used for impeachment or any purpose against
the defendant in subsequent proceedings (unless made in court, and
they are voluntary and reliable) or in a perjury prosecution.
However, the record does not reflect a ruling by the
superior court on John's Evidence Rule 410 claim. Therefore, we
express no opinion on the merits of this claim.
John's remaining argument is that due process was violated
because his change of plea was a contract with the State that any
actions "after his entry of [the] plea relevant to sentencing would
be limited to that purpose." However, John has cited no authority
for this contract-based due process claim. Accordingly, we reject
it.
John's remaining claims are based on the conduct of the
trial in his case and we need not address them.
Conclusion
The judgment of the superior court is REVERSED.
MANNHEIMER, Judge, concurring.
I agree with my colleagues that this court misinterpreted
Criminal Rule 18 in Wilson v. State. [Fn. 1] I am writing
separately for two reasons: first, to issue a nostra culpa with
regard to this court's long-ago decision not to publish Wilson, and
second, to discuss some of the problems inherent in our policy of
issuing most of our decisions as memorandum opinions.
Since the mid-1960s, American appellate courts have been
issuing decisions that are designated as "memorandum" or "unpublished"
opinions. The use of unpublished decisions was in full swing when
the Alaska Legislature created the Court of Appeals in 1980, and one
of this court's early administrative acts was to promulgate a
standing order governing the issuance of unpublished decisions.
In Standing Order No. 3 (issued March 20, 1981), this
court adopted "Guidelines for Publication of Court of Appeals
Decisions". Paragraph 1 of these Publication Guidelines declares
that it is this court's policy to "reduce the proliferation of
published opinions" by "avoid[ing] the [publication] of lengthy
opinions dealing with legal issues of little or no precedential
value or of minimal public interest". An opinion will not be
published if the court concludes that the opinion does not present
"new points of law [giving] the decision ... value as precedent".
Paragraph 2 of the Publication Guidelines clarifies this
policy by specifying that Court of Appeals decisions should not be
published unless they meet one or more of the following criteria:
(a) the opinion establishes a new
rule of law [or] alters, clarifies[,] or modifies an existing rule;
or
(b) the opinion involves a legal
issue of continuing public interest; or
(c) the opinion criticizes existing
law; or
(d) the opinion resolves or comments
upon an apparent conflict of authority.
If this court concludes that an opinion does not meet any of these
criteria, the opinion will not be published. And to make sure that
our appraisal of the opinion is binding, Paragraph 7 of the
Publication Guidelines states that our unpublished decisions "[are
to] be considered ... to have no precedential value."
The original idea was that unpublished decisions would
truly not be published i.e., not widely disseminated, and not
printed in the reporters. Copies would be sent to the parties and
to all judges in the state, but the opinion would not be distributed
to the public at large, nor would it be sent to any legal publisher.
Paragraph 6 of the Publication Guidelines states that memorandum
opinions are to be routinely distributed
only to the parties and/or their respective
counsel, to justices and judges of the State of Alaska, and to the
Administrative Director of the Court System, provided, however, that
[memorandum opinions] shall be available upon request through the
office of the clerk of the appellate courts to the press and to all
members of the public.
But in practice, distribution of our memorandum decisions has never
been as limited as Paragraph 6 might suggest.
Because this court's jurisdiction is confined to criminal
cases and other litigation arising from criminal cases, and because
only a small percentage of the bar practices criminal law, this
court has a fairly well-defined readership. There are three groups
of lawyers whose professional duties motivate them to follow our
decisions: judges, prosecutors, and criminal defense attorneys.
Most of the prosecutors work for one state agency, the Alaska
Department of Law. Moreover, a large number of the defense
attorneys and the ones who are most likely to litigate criminal
appeals are employed by (or work under contract with) one of two
other state agencies: the Public Defender Agency and the Office of
Public Advocacy. Our clerk's office routinely delivers copies of
all of our memorandum opinions to these state agencies (even the
decisions issued in cases not involving these agencies). So
although this court has traditionally distributed only a few dozen
copies of our memorandum decisions, those copies have always gone
to essentially every judge and lawyer who regularly practices
criminal law in this state.
In addition, our memorandum opinions are now readily
available on the Internet. They can be found (and downloaded) at
the Alaska Court System's web site (www.state.ak.us/courts/moj.htm),
and they are also available through at least one of the electronic
legal research services (West Publishing's "Westmate").
In other words, our unpublished opinions are in fact
"published" in the normal sense of the word: they are distributed
to practically everyone who has a professional interest in reading
them, and they are readily available to anyone else. It would seem,
then, that our decision not to publish an opinion has only one real
effect: as declared in Paragraph 7 of the Publication Guidelines,
unpublished opinions "have no precedential value". But even here,
the reality is not what the Guidelines suggest.
One of the important tasks of lawyers and trial judges is
to evaluate what an appellate court has done in the past and then,
based on these past actions, predict what the court is likely to do
in the future. [Fn. 2] This court publishes only about one-fifth
of its decisions. [Fn. 3] This means that if judges and lawyers
want to find out how we view the law and how we have applied the law
in particular situations, most of the information they seek will be
found in our memorandum opinions.
Another fact of legal life in Alaska is that this court
has only three members. In many states, the intermediate courts of
appeal resemble the federal model: the courts are divided into
districts or divisions, and each district or division often has many
judges. In California, for example, there are six appellate
districts and ninety-three intermediate appellate court judges. [Fn.
4] In such states, a memorandum decision issued by a single panel
in a single district may have comparatively little weight, even
within that district. But in Alaska, the same three judges decide
almost every criminal appeal. Thus, even though our memorandum
decisions may not be citable as legal precedent, they are a
relatively good predictor of how this court will evaluate future
cases.
Given all this, it is hardly surprising that trial judges
and lawyers use our memorandum decisions in ways not contemplated
by Paragraph 7 of the Publication Guidelines. It is not unusual to
read a transcript of trial court proceedings in which the lawyers
and the judge discuss one of our memorandum opinions because the
decision is seemingly pertinent to the case before them. If
pressed, they will acknowledge that the memorandum decision is not
"precedent", but they treat it as if it were precedent because,
for the purpose of predicting our future action, it practically is.
This fact was brought home to me when this court was
working on the venue issue in John's case. We were trying to figure
out what Criminal Rule 18(b) meant, so we asked the Court Rules
Attorney if we could examine the legislative history file on
Criminal Rule 18. In that file, we discovered a copy of our
memorandum decision in Wilson v. State. The Rules Attorney had kept
a copy of Wilson because, in Wilson, this court construed Rule
18(b). True, Wilson was not a published decision, but it was our
only decision construing Rule 18(b), and there was no reason to
suppose that we would reach a different decision in a subsequent
case.
Our discovery of Wilson in the Rules Attorney's file
demonstrates a pitfall inherent in our system of "published" and
"unpublished" decisions: so many of our decisions are unpublished
that, given enough time and enough change of personnel, the court
"forgets" that we issued those decisions. West Publishing only
recently started including our memorandum decisions in their
databases, so any memorandum decision issued more than a couple of
years ago is very hard to find through normal search techniques.
Wilson was issued twelve years ago, in October 1989. Even though
Wilson contains a direct ruling on the venue issue presented in
John's appeal, we did not know about that ruling until we found a
copy of the decision in the Rules Attorney's file.
This problem of "lost" decisions is exacerbated by the
rules that seemingly forbid attorneys from bringing our prior
memorandum decisions to our attention. I do not know whether the
attorneys in John's case were aware of Wilson. But if they were,
they knew that Wilson was unpublished and therefore not "precedent",
and they probably concluded that there was no proper way for them
to apprise us of Wilson's interpretation of Criminal Rule 18 and
then ask us either to re-affirm or overrule Wilson.
I am aware of the growing controversy over the propriety
even the legality of appellate courts' issuing unpublished
opinions. [Fn. 5] For present purposes, I assume both that Standing
Order No. 3 is legal and that it embodies salutary policy. But if
we are to divide our opinions into "published" and "unpublished", we
must endeavor to apply the Guidelines for Publication in a careful
and consistent manner.
Wilson is an example of an opinion that should have been
published. In Wilson, this court construed Criminal Rule 18(b) and
rejected the argument that a felony committed in the Delta Junction
venue district should presumptively be tried in Delta Junction.
Referring to the criteria for publication listed in Paragraph 2 of
the Guidelines, Wilson "establishe[d] a new rule of law ... [or]
clarifie[d] ... an existing rule", and it also "involve[d] a legal
issue of continuing public interest".
In the future, I promise to pay close attention to the
Publication Guidelines when this court decides whether to publish
an opinion. In addition, I encourage litigants to ask for
publication of memorandum decisions that appear to meet the criteria
found in Paragraph 2 of those Guidelines.
FOOTNOTES
Footnote 1:
Memorandum Opinion and Judgment No. 1893 (Alaska App., October
11, 1989).
Footnote 2:
486 P.2d 891 (Alaska 1971).
Footnote 3:
Id. at 894.
Footnote 4:
Id. at 899.
Footnote 5:
Id. at 903.
Footnote 6:
Criminal Rule 18(a) states: "Venue Districts. Districts
establishing venue for all criminal cases shall be devised and
promulgated by the supreme court in the form of a map. The map
shall indicate venue district boundaries for each existing court
location capable of holding six-person jury trials or both six and
twelve-person jury trials."
Footnote 7:
The twenty-five superior court venue districts on the supreme
court's map are:
First Judicial District (6):
Angoon, Juneau, Ketchikan, Petersburg, Sitka, Wrangell
Second Judicial District (3):
Barrow, Kotzebue, Nome
Third Judicial District (12):
Anchorage, Cordova, Dillingham, Glennallen, Homer, Kenai,
Kodiak, Naknek, Palmer, Seward, Unalaska, Valdez
Fourth Judicial District (4):
Bethel, Delta Junction, Fairbanks, Tok
Footnote 8:
Alaska R. Crim. P. 18(d)(2).
Footnote 9:
See Wilson, Memorandum Opinion and Judgment No. 1893, p. 2.
Footnote 10:
Here again are the twenty-five superior court venue districts.
The thirteen districts containing cities or towns with resident
superior court judges are underlined.
First Judicial District (6): Angoon, Juneau, Ketchikan,
Petersburg, Sitka, Wrangell
Second Judicial District (3): Barrow, Kotzebue, Nome
Third Judicial District (12): Anchorage, Cordova, Dillingham,
Glennallen, Homer, Kenai, Kodiak, Naknek, Palmer, Seward, Unalaska,
Valdez
Fourth Judicial District (4): Bethel, Delta Junction, Fairbanks,
Tok
Footnote 11:
According to the 2000 census, the population of Fairbanks is
30,224. Of those inhabitants, 20,150 identified themselves as
white, 2994 identified themselves as Alaska Native, and 784
identified themselves as mixed Alaska Native and white.
By contrast, according to the 2000 census, the population of
Tetlin is 117. Of those inhabitants, 111 identified themselves as
Alaska Native, 3 identified themselves as mixed Alaska Native and
white, and 3 identified themselves as white.
Tok has a population of 1393. Of those inhabitants, 1087
identified themselves as white, 179 identified themselves as Alaska
Native, and 82 identified themselves as mixed Alaska Native and
white.
This information is available at the following State of Alaska
web site:
http://146.63.75.45/census2000/Census_LV2.asp
Footnote 12:
AS 11.41.436(a).
Footnote 13:
384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Footnote 14:
Alaska R. Evid. 410(a) provides:
(a) Evidence of a plea of guilty or
nolo contendere, or of an offer to plead guilty or nolo contendere
to the crime charged or any other crime, or of statements or
agreements made in connection with any of the foregoing pleas or
offers, is not admissible in any civil or criminal action, case or
proceeding against the government or an accused person who made the
plea or offer if:
(i) A plea discussion does not
result in a plea of guilty or nolo contendere, or
(ii) A plea of guilty or nolo
contendere is not accepted or is withdrawn, or
(iii) Judgment on a plea of
guilty or nolo contendere is reversed on direct or collateral
review.
Footnote 15:
See Hunter v. State, 590 P.2d 888, 893 (Alaska 1979) (citing
Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16
L.Ed.2d 694, 706 (1966)).
Footnote 16:
See Beaver v. State, 933 P.2d 1178, 1184-85 (Alaska App.
1997).
Footnote 17:
998 P.2d 1040 (Alaska 2000).
Footnote 18:
994 P.2d 1004 (Alaska 2000).
Footnote 19:
See Aningayou v. State, 949 P.2d 963, 966 (Alaska App. 1997).
Footnote 20:
See id.
Footnote 21:
See id.
Footnote 22:
See id.
Footnote 23:
Id.
Footnote 24:
See id.
Footnote 25:
Beavers, 998 P.2d at 1044.
Footnote 26:
See id.
Footnote 27:
See State v. Reutebuch, 953 P.2d 227, 228 (Kan. App. 1997);
State v. Jackson, 325 N.W.2d 819, 822 (Minn. 1982).
Footnote 28:
See United States v. Lloyd, 43 F.3d 1183, 1186 (8th Cir.
1994); United States v. Perez-Franco, 873 F.2d 455, 460-61 (1st
Cir. 1989).
FOOTNOTES (Concurrence)
Footnote 1:
Alaska App. Memorandum Opinion No. 1893 (October 11, 1989).
Footnote 2:
See Lauren K. Robel, The Myth of the Disposable Opinion:
Unpublished Opinions and Government Litigants in the United States
Courts of Appeals, 87 Mich. L. Rev. 940 (1989), pp. 947-48, 956-57.
Footnote 3:
Between January 1, 1996 and October 15, 2001, this court
issued a total of 1445 opinions (not including the 30 that were
later withdrawn and superseded by another opinion). Of these 1445
opinions, 308 (twenty-one percent) were issued as published
opinions and 1137 (seventy-nine percent) were issued as memorandum
opinions.
Footnote 4:
See www.courtinfo.ca.gov/courts/courtsofappeal/about.htm .
Footnote 5:
The reader is invited to study the eleven articles on this
subject contained in the Journal of Appellate Practice and Process,
Vol. 3, Number 1 (Spring 2001), and to read the Eighth Circuit's
decision in Anastasoff v. United States, 223 F.3d 898 (8th Cir.
2000), vacated as moot, 235 F.3d 1054 (8th Cir. 2000) (en banc).
Appendix
GUIDELINES FOR PUBLICATION
OF COURT OF APPEALS DECISIONS
1. Statement of policy. It shall be the general policy
of the Court of Appeals to avoid the use of lengthy opinions
dealing with legal issues of little or no precedential value or of
minimal public interest and to reduce the proliferation of
published opinions. It is unnecessary for the court to issue fully
explained, written opinions in every case. Similarly, it is
unnecessary for the court to publish all decisions, whether
explained or unexplained. The fact that a decision is unexplained
or not published does not signify that the case is considered by
the court to be unimportant. It does mean that, in the view of the
court, no new points of law making the decision of value as
precedent are believed to be involved.
2. Standard for publication of opinions. A decision of
the [C]ourt of [A]ppeals shall not be designated for publication
unless:
(a) [t]he opinion establishes a new rule of law [or]
alters, clarifies[,] or modifies an existing rule; or
(b) the opinion involves a legal issue of continuing
public interest; or
(c) the opinion criticizes existing law; or
(d) the opinion resolves or comments upon an apparent
conflict of authority.
3. Decision to publish; publication of concurring and
dissenting opinions. Decisions of the court shall be published
only if the majority of the judges participating in the decision
find that a standard for publication as set out in Section 2 of
these guidelines is satisfied, except that an opinion shall be
published if it is accompanied by a separate concurring or
dissenting opinion, and the author of the separate opinion desires
that it be published and distributed to regular subscribers.
Dissenting or concurring opinions should be designated for
publication only if the dissenting or concurring judge determines
that a standard for publication as set out in Section 2 of these
guidelines is satisfied. Any originally unpublished opinion,
concurrence[,] or dissent of the [C]ourt of [A]ppeals may
subsequently be published by order of the Alaska Supreme Court.
4. Partial publication. If a standard for publication
as set out in Section 2 of these guidelines is satisfied as to only
a part of a decision, the court may designate only that part for
publication.
5. Time for deciding on publication. The members of the
court shall, in each case, consider the question of whether or not
to publish an opinion at the initial conference on the case[]
and[,] at that time, make a tentative decision whether or not to
publish.
6. Designation of decisions. All decisions that are
found to satisfy a standard for publication as set forth in Section
2 of these guidelines shall be designated simply as "OPINIONS" of
the court. All explained decisions of the court which do not meet
any standard for publication specified in Section 2 of these
guidelines shall be designated as "MEMORANDUM OPINIONS [AND]
JUDGMENTS" and shall not be published. An OPINION or a MEMORANDUM
OPINION AND JUDGMENT of the court may be signed by the judge who
wrote it or may be issued in per curiam form, and these designa-
tions shall have no effect on whether the OPINION or MEMORANDUM
OPINION AND JUDGMENT is published. All unexplained decisions of
the court shall be designated as "SUMMARY DISPOSITIONS" and shall
not be published. Unpublished decisions of the Court of Appeals
shall routinely be distributed only to the parties and/or their
respective counsel, to justices and judges of the State of Alaska,
and to the Administrative Director of the Court System, provided,
however, that at all times unpublished decisions of the [C]ourt of
[A]ppeals shall be available upon request through the office of the
clerk of the appellate courts to the press and to all members of
the public.
7. Precedential value of unpublished opinions. In
keeping with the provisions of [A]ppellate [R]ule 214[,]
unpublished decisions of the [C]ourt of [A]ppeals, whether in the
form of MEMORANDUM OPINIONS [AND] JUDGMENTS or SUMMARY
DISPOSITIONS, shall be considered by the court to have no
precedential value.
