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McCoy v. State (8/30/2002) ap-1822
McCoy v. State (8/30/2002) ap-1822
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
CHRISTOPHER J. McCOY, SR., )
) Court of Appeals No. A-
7789
Appellant, ) Trial Court No.
3KN-S99-1844 CR
)
v. ) O P I N
I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1822
August 30, 2002]
)
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Harold M. Brown,
Judge.
Appearances: Diane L. Foster and Darin B.
Goff, Assistant Public Defenders, Kenai, and
Barbara K. Brink, Public Defender, Anchorage,
for Appellant. John W. Wolfe, Assistant
District Attorney, Kenai, and Bruce M.
Botelho, Attorney General, Juneau, for Appel
lee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
After reaching a plea bargain with the State,
Christopher J. McCoy, Sr., pleaded no contest to one count of
third-degree assault.1 Superior Court Judge Harold M. Brown
imposed 4 years' imprisonment with all but 18 months suspended.
In this appeal, McCoy does not challenge his sentence. Instead,
he argues that Judge Brown erred when he denied McCoy's motion to
strike certain portions of the presentence report. Because we
reject McCoy's arguments, we affirm the superior court.
The challenged hearsay statements
Before sentencing, McCoy moved to strike certain
paragraphs from the "collateral contacts" section of the
presentence report and two paragraphs from an addendum to the
presentence report that contained information about other
assaultive conduct by McCoy. McCoy argued the purportedly
objectionable paragraphs contained unverified hearsay statements.
Judge Brown ruled that the hearsay statements in the
presentence report were sufficiently trustworthy for him to rely
on them unless McCoy presented a challenge to their accuracy. He
reasoned that the information in the addendum came from police
reports in which the victim of the assaults, Michelle McCoy,
reported her observations to the police. Judge Brown also noted
that the addendum contained "confirming information as to what
[the police] did in response." Judge Brown concluded that the
other statements in the presentence report, "even though they
might be so-called third-hand information, [are] the type of
information that the court can consider verified for the purpose
of ... this sentencing process."
In Nukapigak v. State,2 the Alaska Supreme Court held
that hearsay statements can be considered during sentencing if
they are "sufficiently verified to appear trustworthy and the
defendant was given the opportunity to deny [the truth of the
statements] or present contrary evidence of his own."3 The court
defined "verified" as "corroborated or substantiated by
supporting data or information."4
In that case, the presentence investigator spoke with
several residents of Nukapigak's village. The presentence
report included the villagers' descriptions of Nukapigak's
misconduct.5 Even though the villagers' reports were not based
on first-hand knowledge, the supreme court ruled that this
information was verified. The villagers were identified in the
presentence report, and Nukapigak, who was supplied a copy of the
report, was entitled to challenge the accuracy of the reports or
offer contrary evidence.6
Here, the probation officer reported that McCoy's
father-in-law described a history of domestic violence in the
McCoy home. Included in the report were the father-in-law's
description of the difficulties his grandchildren had when in
McCoy's home, the grandchildrens' complaints to him, and his
description of the domestic violence against his daughter caused
by McCoy. The probation officer's source, the father-in-law, is
identified and whatever data the father-in-law provided that was
not based on his first-hand knowledge was attributed to either
his grandchildren or his daughter. Under the rationale of
Nukapigak, this constitutes verified information. Therefore,
Judge Brown was not required to strike this material from the
presentence report.
Whether a presentence investigator may review and use
the information in a defendant's juvenile probation
file without first obtaining special permission from
the superior court
McCoy objected to the portion of the
presentence report that discussed his contacts with the
juvenile justice system (contacts that did not lead to
formal adjudications of delinquency). He argued that a
presentence investigator is not authorized to examine a
defendant's juvenile records without first obtaining
the superior court's permission.
We first address a subsidiary question of
law. When McCoy's attorney argued that the presentence
investigator had no authority to use information from
McCoy's juvenile file, the attorney asked Judge Brown
to consider one of this Court's memorandum opinions,
State v. Westerlin,7 because Chief Judge Bryner's
concurring opinion in Westerlin discusses (but reaches
no conclusion regarding) this issue. The State
responded by asking Judge Brown to strike McCoy's
pleading; the State asserted that the defense attorney
had violated Alaska Appellate Rule 214(d), which
declares that memorandum decisions of this court are
"without precedential effect and may not be cited in
the courts of this state."
Blacks Law Dictionary defines "cite" as
"refer to or adduce as precedent or authority."8
McCoy's attorney did not claim that our memorandum
opinion in Westerlin was precedent. It is arguable
that the defense attorney adduced Judge Bryner's
concurrence as "authority" in the broadest sense of
that term that is, as a record of what another judge
thought about a legal issue, for whatever persuasive
power it might have. But we do not read Appellate Rule
214(d) to preclude this. Rather, the rule forbids
reliance on a memorandum opinion as "authority" in a
narrower sense what Black's Law Dictionary calls
"imperative authority": "[a] legal writing taken as
definitive or decisive; esp[ecially], a judicial ...
decision cited as precedent."9
McCoy's attorney did not claim or imply that
our unpublished decision in Westerlin resolved the
issue of statutory interpretation presented in McCoy's
case or that it restricted the scope of Judge Brown's
decision-making authority on this issue. Thus, the
defense attorney did not violate Appellate Rule 214(d)
by bringing Westerlin to Judge Brown's attention.
We now turn to the merits of McCoy's
argument. McCoy concedes that Alaska Criminal Rule
32.1(b)(1) specifically requires presentence reports to
include "any finding of delinquency." But McCoy
contends that prior judicial approval is needed before
a presentence investigator can refer to any other
aspect of a defendant's juvenile history i.e.,
contacts that did not lead to a formal delinquency
adjudication. To support this contention, McCoy relies
on a statute, AS 47.12.300, and a court rule, Alaska
Delinquency Rule 27(a)(1).
Alaska Statute 47.12.300(d) states that the
superior court is required to seal "all the court's
official records pertaining to [a] minor" within 30
days of the time the court relinquishes juvenile
jurisdiction over the minor (normally, at the time of
the minor's 18th birthday). The statute then declares
that, once these official court records are sealed,
"[no] person may ... use these ... records for any
purpose except that the court may order their use for
good cause shown or may order their use by an officer
of the court in making a presentenc[e] report."
In fact, not only does section 300(d)
seemingly prohibit the presentence investigator from
"using" the juvenile records without a court order, but
section 300(e) seemingly prevents the presentence
investigator from even looking at these records.
Section 300(e) declares that the records "may be
inspected only with the court's permission and only by
persons having a legitimate interest in them."
McCoy also relies on Alaska Delinquency Rule
27(a)(1), but this rule appears to authorize the
practice McCoy is challenging. Delinquency Rule
27(a)(1) states in pertinent part:
The court records of a juvenile
delinquency proceeding are confidential ... .
Information [concerning those court records]
may not be released and access to the records
may not be permitted except as authorized by
statute or upon court order for good cause
shown, ... except that ... [a] probation
officer employed by the [State of Alaska] may
review delinquency proceedings records for
the sole purpose of preparing a presentence
report on the individual whose juvenile
record is reviewed. The records may be used
in the sentencing proceeding and attached to
the probation officer's report.
Nevertheless, McCoy argues that this rule supports his position.
He points out that the rule speaks of a probation officers
authority to review "delinquency proceedings records" when
preparing a presentence report. McCoy contends that this
phrase encompasses only "official court records" of the
juvenile proceeding. By this, he means that Rule 27(a)(1)
covers the court's records of the proceedings held in a
juvenile case but not the material contained in the juvenile
probation officer's file (unless that material happens to be
incorporated into a court pleading or order). To gain
access to the material in the juvenile probation officer's
file, McCoy argues, a presentence investigator must formally
seek and obtain the superior court's permission.
The problem with McCoy's suggested interpretation of
Rule 27(a)(1) is that it would leave the juvenile probation
officer's file unprotected. As stated in the first sentence of
Rule 27(a), the purpose of the rule is to establish the
confidentiality of "[t]he court records of a juvenile delinquency
proceeding" a phrase which we construe to be equivalent to
"delinquency proceedings records" (the shorter phrase used later
in that same paragraph). If, as McCoy argues, these two phrases
refer only to the papers in the superior court's file, then there
would be no rule to protect the confidentiality of the juvenile
probation officer's file.
Moreover, under McCoy's interpretation, AS 47.12.300
would not protect the contents of the juvenile probation
officer's file, either. That statute requires the sealing of
"all the courts official records pertaining to [a] minor." If,
as McCoy suggests, "the court's official records" do not include
the juvenile probation officer's file, then the statute likewise
offers no protection to that file.
Because McCoy's interpretation leads to results that
are inconsistent with the protective goals shared by the
legislature and the supreme court, we reject his
interpretation.10 Instead, we construe the phrases used in
Delinquency Rule 27(a) "court records of a juvenile delinquency
proceeding" and "delinquency proceedings records" to include the
contents of the juvenile probation officer's file. Similarly, we
conclude that the phrase used in AS 47.12.300(d) "the court's
official records pertaining to [a] minor" likewise encompasses
the juvenile probation officer's file.
We must next address the differences between AS
47.12.300 and Delinquency Rule 27(a)(1). Under AS 47.12.300, a
presentence investigator must secure special permission from the
superior court before inspecting and using juvenile records. But
under Delinquency Rule 27(a)(1), a presentence investigator is
automatically entitled to inspect and use these records for the
purpose of preparing an adult presentence report on that
individual.
We resolve this conflict by noting that the difference
is one of procedure. Both the statute and the rule allow a
presentence investigator to review juvenile records. However, AS
47.12.300 requires the presentence investigator to obtain special
permission from the superior court in each separate case, while
Delinquency Rule 27(a)(1) allows the presentence investigator to
review the records without obtaining prior case-specific approval
from the superior court. In such instances, the procedure
specified in the court rule takes precedence over any contrary
procedure specified in the statute.11
We therefore hold that a presentence investigator in an
adult criminal case may review and use the materials found in the
defendant's juvenile court files (including the juvenile
probation officer's files) without first obtaining case-specific
permission from the superior court. Judge Brown acted correctly
when he denied McCoy's motion to strike this information from
McCoy's presentence report.
Conclusion
The judgment of the superior court is
AFFIRMED.
_______________________________
1 AS 11.41.220(a)(1).
2 562 P.2d 697 (Alaska 1977), aff'd on reh'g, 576 P.2d
982, 984-85 (Alaska 1978).
3 Id. at 701.
4 Id. at 701, n.2.
5 See Nukapigak v. State, 576 P.2d 982, 983 (Alaska
1978).
6 Id.
7 Memorandum Opinion and Judgment No. 3111 (Alaska
App., March 29, 1995).
8 BLACK'S LAW DICTIONARY 237 (7th ed. 1999).
9 Id. at 128-29.
10 See Ellingstad v. State, Dep't. of Natural
Resources, 979 P.2d 1000, 1006 (Alaska 1999) (a court should not
construe the language of a statute in such a way as to lead to a
result that is "contrary to the purpose of the statute"); Millman
v. State, 841 P.2d 190, 195 (Alaska App. 1992) ("a court is ...
obliged to avoid construing statutes in a way that leads to
patently absurd results or to defeat of the obvious legislative
purpose behind the statute").
11 See Gieffels v. State, 552 P.2d 661, 667-68
(Alaska 1976), disapproved of on other grounds by Miller v.
State, 617 P.2d 516 (Alaska 1980); Main v. State, 668 P.2d 868,
872-73 (Alaska App. 1983).
