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Gottschalk v State (11/23/2001) ap-1774
Gottschalk v State (11/23/2001) ap-1774
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
CLAYTON W. GOTTSCHALK, )
) Court of Appeals No. A-7572
Appellant, ) Trial Court No. 3AN-98-4387 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1774 November 23, 2001]
)
Appeal from the Superior Court, Third Judicial
District, Anchorage, Gregory J. Motyka, Judge.
Appearances: Sharon Barr, Assistant Public
Defender, and Barbara K. Brink, Public Defender, Anchorage, for
Appellant. Douglas H. Kossler, 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.
This appeal presents two issues, one involving Alaska's
speedy trial rule (Criminal Rule 45) and the other involving the
propriety of a peremptory challenge exercised by the prosecutor.
Clayton W. Gottschalk was charged with felony driving
while intoxicated, felony breath test refusal, driving with a
suspended license, and leaving the scene of an accident. [Fn. 1]
His trial was scheduled for October 27, 1998, with trial call
scheduled for the day before (October 26th).
The first issue on appeal arose because Gottschalk failed
to appear at the trial call. With Gottschalk's whereabouts unknown,
the superior court issued a warrant for his arrest. Gottschalk was
located and arrested four and a half months later, on March 11,
1999. He was re-arraigned the following day, March 12th.
The question is this: Because of Gottschalk's flight and
lengthy absence, should his speedy trial calculation under Alaska
Criminal Rule 45 have been reset to Day 1 when he was again
apprehended? For the reasons explained here, we conclude that it
should.
The second issue on appeal arose during jury selection at
Gottschalk's trial. Gottschalk is an Alaska Native. Early on,
Gottschalk announced that he believed the courts of Alaska had no
jurisdiction over him because the United States government had never
signed a treaty with his tribe. As the jury was being picked, most
prospective jurors were asked their opinion regarding Native
sovereignty.
The prosecutor's first peremptory challenge was exercised
against a Native American woman (a member of a tribe from the Lower
48). Gottschalk's attorney asked the superior court to invalidate
this peremptory challenge, claiming that the prosecutor exercised
the challenge solely because of the juror's race conduct declared
to be unconstitutional in Batson v. Kentucky. [Fn. 2] The
prosecutor responded that he was concerned by the juror's answers
regarding Native sovereignty. The trial judge concluded that this
was a well-founded explanation of the prosecutor's peremptory
challenge, so he denied Gottschalk's Batson motion to set aside the
challenge.
On appeal, Gottschalk argues that the juror's answers gave
no indication that the juror supported the Native sovereignty
movement, and thus the record fails to support the prosecutor's
offered explanation for the peremptory challenge. We agree.
However, under Batson, the question is not whether the record
supports the prosecutor's reasons for distrusting the juror's
ability to be fair. Rather, the question is whether the prosecutor
honestly believed, based on something other than the juror's race,
that the juror would not be a good juror. The superior court found
that the prosecutor acted in good faith, and not from racial bias
or stereotyping. Because this finding is not clearly erroneous, we
affirm the superior court's denial of Gottschalk's Batson motion.
The Rule 45 issue
Gottschalk was initially served with the charging
documents on May 25, 1998. This event started the running of the
Rule 45 "clock". [Fn. 3] But, as explained above, Gottschalk failed
to appear at his trial call on October 26, 1998. He was arrested
on a bench warrant and re-arraigned on March 12, 1999.
This court addressed a similar situation in Russell v.
Anchorage, 626 P.2d 586 (Alaska App. 1981). The defendant in
Russell failed to appear for trial and was not arrested until
several months later. [Fn. 4] This court held that the Rule 45
clock should be reset, making the day of Russell's re-arrest a new
Day 1, because of the following three factors:
(1) the defendant intentionally fail[ed] to
appear for court; (2) his disappearance [was] followed by a
substantial period of absence; and (3) by virtue of [the]
defendant's inaction[,] no progress [was] made in the normal
pretrial process before the defendant's disappearance.
Id. at 590.
Gottschalk concedes that his case looks like Russell
insofar as factors (1) and (2) are concerned, but he contends that,
with regard to factor (3), the facts of his case are distinguishable
from Russell. Gottschalk argues that substantial pre-trial progress
had been made in his case by the time he absconded. Gottschalk
points out that:
[a]t his arraignment, he requested and was
appointed a public defender. ... [In the next several weeks], he
had four pre-indictment hearings [as] the parties [attempted] to
negotiate the case. After [these negotiations failed and] Mr.
Gottschalk was indicted, ... he attempted to file a Bill of
Particulars which he had written himself. Thus, unlike the
defendant in Russell, Mr. Gottschalk obtained counsel and took
action in his case prior to his failure to appear.
But Gottschalk's argument hinges on a fairly restrictive
reading of Russell's third factor. This narrow construction of the
third factor is inconsistent with the way we applied the Russell
rule in Conway v. State, 707 P.2d 930 (Alaska App. 1985). In
Conway, the defendant
was arrested [and charged] on February 8, 1980
... . [Through counsel, he] negotiated ... with the state for a
resolution of [his] case without trial. When negotiations broke
down, trial was scheduled for the week of November 17, 1980. ...
Conway did not appear, and ... his whereabouts were unknown until
he was rearrested approximately two months later ... .
Id. at 935. We held that, under these facts, "[a]ll three [Russell]
factors are present". [Fn. 5] Indeed, we stated that the facts of
Conway presented "an even more compelling case than Russell for the
recommencement of the 120-day period" because Conway, unlike Russell,
was represented by counsel. [Fn. 6]
Based on our decision in Conway, we conclude that the
Russell rule applies to Gottschalk's case: Gottschalk's act of
absconding and his ensuing lengthy absence caused the Rule 45 clock
to be reset. The event that restarted the clock was Gottschalk's
re-arraignment on March 12, 1999. Thus, the following day March
13, 1999 became Day 1 for purposes of Rule 45. [Fn. 7]
Gottschalk was brought to trial 144 days later, on August
3, 1999. However, the proceedings were delayed for two months (from
April 2, 1999 through June 3, 1999) when Gottschalk's attorney asked
the court to investigate Gottschalk's mental competency to stand
trial. Deducting these 62 days from the total elapsed time of 144
days, it is clear that Gottschalk was brought to trial within the
120 days specified by Rule 45.
The Batson attack on the prosecutor's peremptory challenge
Before Gottschalk's trial began, he asked the superior
court to grant him co-counsel status. Gottschalk wanted co-counsel
status so that he could present an argument that his attorney did
not wish to raise: the contention that, because Gottschalk was of
Yupik descent and because no representative of the Yupik people had
signed the Treaty of Cession of 1867 (i.e., the treaty in which
Russia transferred ownership of Alaska to the United States), the
courts of Alaska had no jurisdiction over him.
Gottschalk's announcement affected the course of jury
selection. Because it appeared that Gottschalk would try to inject
the issue of Native sovereignty into the trial, both the prosecutor
and the defense attorney questioned several prospective jurors
concerning their views on Native sovereignty. One of these
prospective jurors was Marcia Bannon, who identified herself as a
Native American, a member of the Eastern Allegheny Nation.
When the prosecutor asked Ms. Bannon to explain her
understanding of Native sovereignty, she replied:
Well, the Constitution of the United
States says ... that Native Americans will be treated by treaty as
independent nations. So, as to each of those nations, they had to
sign a treaty. But Alaska Natives are different, and they so
that's done differently. So if you're talking about sovereignty
with the with Native Americans, that's different than sovereignty
for Alaska Natives.
The prosecutor then asked Bannon to state her views with respect to
the sovereignty of Alaska Native tribes. She answered,
I think it's a very complex question, and
it needs to be resolved legislatively, and with the people involved.
I'm not an Alaska Native.
When the defense attorney's turn came, she too asked
Bannon about Native sovereignty. This time, Bannon stated,
I don't think it's good for the State of
Alaska, but I don't want to get into their [i.e., Alaska Native]
issues.
When the time came for the prosecutor to exercise his
first peremptory challenge, he challenged Bannon. The defense
attorney objected that the prosecutor's action violated the rule
established in Batson v. Kentucky. [Fn. 8] That is, the defense
attorney argued that the prosecutor had exercised his peremptory
challenge for racial reasons (i.e., because Bannon was a Native
American).
The prosecutor did not wait for the trial judge, pro tem
Superior Court Judge Gregory J. Motyka, to decide whether the
defense attorney had established a prima facie case of racial
motivation (normally, the first step in a Batson analysis). [Fn.
9] Instead, the prosecutor offered an explanation of the peremptory
challenge. The prosecutor told Judge Motyka that he had decided to
challenge Bannon because (1) he perceived Bannon as hostile and (2)
he was worried about Bannon's views on Native sovereignty.
Judge Motyka stated that he did not personally perceive
hostility in Bannon's answers to the prosecutor's questions, but he
also declared that her demeanor "[possibly] could have been
interpreted as ... hostile to the State." Moreover, Judge Motyka
agreed that the prosecutor might legitimately be concerned about
Bannon's responses on the Native sovereignty issue. The judge
therefore overruled the defense attorney's Batson objection and
allowed the peremptory challenge to stand. On appeal, Gottschalk
renews his argument that the prosecutor violated Batson by
exercising a peremptory challenge against Bannon purely because of
Bannon's race.
Gottschalk points out that Judge Motyka did not personally
perceive Bannon to be hostile. For this reason, Gottschalk asserts
that Judge Motyka engaged in "after-the-fact invention" when the
judge declared that the prosecutor might possibly have viewed Bannon
as hostile. But there is no logical inconsistency in Judge Motyka's
saying that he personally did not perceive Bannon as hostile, yet
at the same time acknowledging that other reasonable people (in
particular, the prosecutor) might have assessed Bannon's demeanor
differently.
With respect to the prosecutor's second explanation of the
peremptory challenge the prosecutor's concerns over Bannon's
statements about Native sovereignty Gottschalk argues that the
record does not support the prosecutor's offered explanation. That
is, Gottschalk contends that Bannon's answers did not provide a
reasonable basis for anyone to conclude that Bannon could not be a
fair juror, even though the trial might raise issues of Native
sovereignty.
We agree with Gottschalk that Bannon's answers would not
lead a reasonable person to question her ability to be fair, or to
question her willingness to follow the judge's instructions on
Native sovereignty or related matters. But that is not the issue
under Batson. An attorney's reason for exercising a peremptory
challenge need not constitute a reason that would justify a
challenge for cause. Indeed, requiring affirmative proof of the
prospective juror's inability to be fair would defeat the whole
concept of a peremptory challenge. Batson requires only that the
attorney honestly base their peremptory challenge on a race-neutral
reason "something other than the race of the juror". [Fn. 10]
If the attorney offers a race-neutral explanation for the
challenge, and if the attorney is acting in good faith if the
attorney's stated reason for exercising the challenge is not simply
a subterfuge for racial discrimination then the peremptory
challenge will survive a Batson objection even if the attorney's
reason for the challenge is "not ... persuasive or even plausible".
[Fn. 11]
For example, in Purkett v. Elem [Fn. 12], the defendant
was tried for robbery in a Missouri court. During jury selection
the prosecutor used peremptory challenges to strike two
African-American potential jurors. When the defense attorney raised
a Batson objection, the prosecutor explained the reasons for the
strikes as follows:
I struck [juror] number twenty-two because
of his long hair. He had long curly hair. He had the longest hair
of anybody on the panel by far. He appeared to me to not be a good
juror for that fact, the fact that he had long hair hanging down
shoulder length, curly, unkempt hair. Also, he had a mustache and
a goatee type beard. And juror number twenty-four also has a
mustache and goatee type beard. Those are the only two people on
the jury ... with facial hair... . And I don't like the way they
looked, with the way the hair is cut, both of them. And the
mustaches and the beards look suspicious to me.
Elem, 514 U.S. at 766, 115 S.Ct. at 1770.
The trial judge overruled the Batson objection and, after
the defendant was convicted and appealed, that ruling was affirmed
by the Missouri Court of Appeals. The defendant then filed a
petition for federal habeas corpus. The federal district court
concluded that the Missouri courts' determination that there had
been no purposeful discrimination was a factual finding i.e., a
finding entitled to a presumption of correctness under 28 U.S.C.
sec.
2254(d). Since there was support for that finding in the record,
the district court denied the petition for writ of habeas corpus.
However, the Eighth Circuit reversed the district court's
decision and directed the district court to grant the writ of habeas
corpus. The appeals court held that it was not sufficient for an
attorney to articulate race-neutral factors behind a peremptory
challenge; rather, "the [attorney] must [also] at least articulate
some plausible race-neutral reason for believing those factors will
somehow affect the person's ability to perform his or her duties as
a juror." [Fn. 13] From its review of the transcript, the Eighth
Circuit concluded that the "prosecution's explanation for striking
juror 22 ... was pretextual" and that the trial judge had erred in
not finding intentional discrimination. [Fn. 14]
The United States Supreme Court granted the State of
Missouri's petition for writ of certiorari and reversed the Eighth
Circuit. Here is how the Supreme Court described the Eighth
Circuit's mistake:
The Court of Appeals erred by combining
Batson's second and third steps into one,
requiring that the justification tendered at the second step be not
just neutral but also at least minimally persuasive, i.e., a
"plausible" basis for believing that "the person's ability to perform
his or her duties as a juror" will be affected. It is not until the
third step that the persuasiveness of the justification becomes
relevant the step in which the trial court determines whether the
opponent of the strike has carried his burden of proving purposeful
discrimination. At that stage, implausible or fantastic
justifications may (and probably will) be found to be pretexts for
purposeful discrimination. But to say that a trial judge may choose
to disbelieve a silly or superstitious reason at step three is quite
different from saying that a trial judge must terminate the inquiry
at step two when the race-neutral reason is silly or superstitious.
The latter violates the principle that the ultimate burden of
persuasion regarding racial motivation rests with, and never shifts
from, the opponent of the strike.
The Court of Appeals appears to have
seized on our admonition in Batson that to rebut a prima facie case,
the proponent of a strike "must give a 'clear and reasonably
specific' explanation of his 'legitimate reasons' for exercising the
challenges," and that the reason must be "related to the particular
case to be tried." This warning was meant to refute the notion that
a prosecutor could satisfy his burden of production by merely
denying that he had a discriminatory motive or by merely affirming
his good faith. What it means by a "legitimate reason" is not a
reason that makes sense, but a reason that does not deny equal
protection.
Elem, 514 U.S. at 768-69, 115 S.Ct. at 1771 (citations omitted)
(emphasis in the original).
In other words, after an attorney articulates a race-
neutral reason for the peremptory challenge, the next and ultimate
issue is the attorney's good faith. The trial judge must decide
whether the articulated reason is the attorney's true reason for the
peremptory challenge or whether it is a sham, an invention to mask
the attorney's discriminatory intent. The party who raised the
Batson objection bears the burden of persuasion on this issue. [Fn.
15]
Moreover, in practically all cases, the trial judge has
the ultimate word on the issue of the attorney's intent. As the
United States Supreme Court explained in Hernandez v. New York,
[T]he trial court's decision on the
ultimate question of discriminatory intent represents a finding of
fact of the sort accorded great deference on appeal[.] ...
Deference to trial court findings on the issue of discriminatory
intent makes particular sense in this context because, as we noted
in Batson, the finding "largely will turn on evaluation of [the
attorney's] credibility." In the typical peremptory challenge
inquiry, the decisive question will be whether counsel's race-
neutral explanation for a peremptory challenge should be believed.
There will seldom be much evidence bearing on that issue, and the
best evidence will often be the demeanor of the attorney who
exercises the challenge. As with the state of mind of a juror,
evaluation of the prosecutor's state of mind is based on demeanor
and credibility "peculiarly within the trial judge's province."
500 U.S. at 364-65, 111 S.Ct. at 1868-69 (citations omitted).
In Gottschalk's case, the prosecutor offered a race-
neutral reason for challenging juror Bannon: her views on Native
sovereignty. The fact that the prosecutor's rationale might have
a disproportionate impact on the Native members of the jury pool
does not mean that the explanation constitutes unlawful
discrimination. As the Supreme Court stated in Hernandez, "Equal
protection analysis turns on the intended consequences of government
classifications. Unless the [prosecutor] adopted a criterion with
the intent of causing the [disparate] impact ... , that impact
itself does not violate the principle of race neutrality." [Fn. 16]
Because the prosecutor offered a race-neutral explanation
for the peremptory challenge of juror Bannon, the remaining question
is whether Gottschalk proved that the prosecutor's explanation was
a subterfuge to mask a discriminatory intent. Judge Motyka found
that Gottschalk had not met this burden; the judge concluded that
the prosecutor had offered an honest explanation for the peremptory
challenge.
The transcript of juror Bannon's voir dire may not show
that the prosecutor's apprehensions were well-founded but, as
explained above, that is not the issue. Judge Motyka found that the
prosecutor honestly exercised the peremptory challenge for the
reasons the prosecutor articulated: apprehension over Bannon's
apparent hostility and apprehension over Bannon's statements
concerning Native sovereignty. Judge Motyka's decision regarding
the prosecutor's credibility and good faith necessarily rested, not
only on the judge's assessment of the content of Bannon's answers,
but also on the judge's assessment of such imponderable factors as
the prosecutor's tone of voice and demeanor. Because of this, we
can not say that Judge Motyka's conclusion is clearly erroneous.
We therefore uphold Judge Motyka's denial of Gottschalk's Batson
challenge.
Conclusion
The judgement of the superior court is AFFIRMED.
FOOTNOTES
Footnote 1:
AS 28.35.030(n) (driving while intoxicated); AS 28.35.032(p)
(breath test refusal); AS 28.15.291(a) (driving with a suspended
license); AS 28.35.050(b) (leaving the scene of an accident).
Footnote 2:
476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
Footnote 3:
See Criminal Rule 45(c)(1).
Footnote 4:
See id. at 587-88.
Footnote 5:
Id.
Footnote 6:
Id.
Footnote 7:
See Nickels v. State, 545 P.2d 163, 165 (Alaska 1976) (when an
event triggers Rule 45, the following day is deemed Day 1).
Footnote 8:
476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
Footnote 9:
See Hernandez v. New York, 500 U.S. 352, 358-59; 111 S.Ct.
1859, 1866; 114 L.Ed.2d 395 (1991).
Footnote 10:
Hernandez v. New York, 500 U.S. 352, 360; 111 S.Ct. 1856, 1866;
114 L.Ed.2d 395 (1991).
Footnote 11:
Purkett v. Elem, 514 U.S. 765, 768; 115 S.Ct. 1769, 1771; 131
L.Ed.2d 834 (1995) (per curiam).
Footnote 12:
514 U.S. 765, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per
curiam).
Footnote 13:
Elem v. Purkett, 25 F.3d 679, 683 (8th Cir. 1994).
Footnote 14:
Id. at 684.
Footnote 15:
See Elem, 514 U.S. at 767, 115 S.Ct. at 1771.
Footnote 16:
Id., 500 U.S. at 362, 111 S.Ct. at 1867 (emphasis added).
