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Nason v. State (12/03/2004) ap-1961
Nason v. State (12/03/2004) ap-1961
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
MARK NASON, )
) Court of Appeals No.
A-8164
Appellant, )
Trial Court No. 3PA-99-2373 CR
)
v. ) O P I N I
O N
)
STATE OF ALASKA, )
)
Appellee. )
[No. 1961 - December 3, 2004]
)
Appeal from the Superior Court, Third Judi
cial District, Palmer, Beverly W. Cutler,
Judge.
Appearances: David D. Reineke, Assistant
Public Defender, and Barbara K. Brink, Public
Defender, Anchorage, for Appellant. Kenneth
M. Rosenstein, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Gregg D. Renkes, Attorney
General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
Mark Nason was convicted of assault in the first degree
and misconduct involving weapons in the third degree (felon in
possession of a concealed firearm). In his main point on appeal,
Nason argues that Superior Court Judge Beverly W. Cutler erred in
allowing him to be handcuffed and shackled in front of the jury
without conducting a hearing on whether the restraints were
necessary. We agree with Nason that Judge Cutler erred. But
because the record is inadequate for us to determine the exact
nature of the restraints and whether the jury could observe the
restraints, we remand for further proceedings on this issue.
Nason also contends that Judge Cutler erred in denying his motion
to suppress. Nasons motion to suppress was based on his
contention that the troopers did not have a valid consent to
search his cabin. We affirm Judge Cutlers decision in part, but
remand for further proceedings on this issue as well.
Facts and proceedings
On December 12, 1999, the Alaska State Troopers were
informed that a woman had been admitted to Sunshine Medical
Clinic in Talkeetna with a gunshot wound. Trooper John Cyr went
to the clinic and met with the woman, Heather Gillespie, who was
on a gurney being treated when he arrived.
When interviewed by Trooper Cyr regarding the
circumstances of her injury, Gillespie told him that her wound
had resulted from the accidental discharge of a nine-millimeter
handgun she had tossed onto a table while cleaning her cabin.
Trooper Cyr recorded the interview. According to Trooper Cyr,
Gillespie agreed to allow him to go out to the cabin to
investigate.
Trooper Cyr drove to Gillespies cabin, located about
five miles from the clinic. He testified that no one was home,
but a mirror ... was broken ... [and] it looked like a fight [had
occurred.] Trooper Cyr did not find the nine-millimeter handgun,
however he did find a .30-06 rifle in a case and a spent nine-
millimeter shell casing. He also noticed two bullet holes in the
wall of the cabin that penetrated from the inside to the outside.
Before going off his shift, Trooper Cyr returned to the
scene with Trooper John Holm. The purpose of this second trip to
the cabin was to brief Trooper Holm on the days events since Holm
would be taking over the investigation. While walking through the
cabin, the troopers did not discover any new information.
Meanwhile, Gillespie had been transferred from the
Sunshine Medical Clinic to Valley Hospital in Palmer. Trooper
Matthew Hightower interviewed Gillespie at the hospital.
Gillespie repeated her story that the gun accidentally
discharged. At one point Trooper Hightower went to his patrol
car to get his cameras to photograph Gillespies wounds.
When Trooper Hightower returned, Gillespie said, I
didnt shoot myself. She claimed that she and a man named Steve
got into an argument. Gillespie quickly corrected herself and
stated that the mans name was Mark she claimed not to know his
last name. She repeatedly stated that this Mark was not Mark
Patterson, an ex-boyfriend, by whom she was pregnant. This other
Mark, whom Gillespie had met while hitchhiking, had been living
in her cabin with her for approximately two weeks. Gillespie
explained that when she told this Mark to leave, an argument had
ensued, ending with him shooting her. Gillespie said that the
handgun belonged to Mark and she didnt know if he still had it.
When asked, Gillespie indicated that the troopers still
had permission to enter and search her house. Even after Trooper
Hightower informed Gillespie of her constitutional right to
refuse the search, she signed a consent form.
Trooper Holm then returned to Gillespies cabin,
accompanied by Trooper Andrew Greenstreet. As the troopers
pulled up to the cabin, Trooper Holm saw a shadow in the window
of someone going up the stairs. After checking the perimeter,
Trooper Holm loudly announced their presence and asked for anyone
inside to come out. Receiving no response, he then opened the
door using his knife. Trooper Holm could hear something inside
the cabin, so he used his pepper spray in an attempt to get
anyone who was inside to come out; no one responded. Trooper
Holm entered the cabin and saw a full bottle of beer on the
coffee table that had not been there during his previous visit to
the cabin.
The troopers then directed more pepper spray towards
the attic and again commanded whoever was there to come out.
Still receiving no response, the troopers drew their weapons and
went up the stairs. In the attic, they discovered Mark Nason
holding a cushion over his face. The troopers handcuffed Nason,
who identified himself as Mark Peterson, and conducted a pat-down
search. Nason was carrying numerous pocket knives, ammunition,
and ... a Ruger nine-millimeter handgun.
Mark Nason was indicted for first-degree assault1 (for
shooting Gillespie) and third-degree misconduct involving
weapons2 (for being a felon in possession of a handgun). Prior
to trial, Nason moved to suppress the evidence seized as a result
of the search of the cabin, arguing that the troopers did not
have a valid consent to search. After an evidentiary hearing,
Judge Cutler denied the motion to suppress, finding that the
troopers had valid consent to search the cabin. Judge Cutler
did, however, grant Nasons motion to sever the two charges for
trial.
Nasons wrists and ankles were shackled throughout both
trials and Judge Cutler did not conduct a hearing regarding the
necessity of the shackling. In fact, she declared that this
issue was a decision for law enforcement personnel, not the
court. Nason was convicted on both counts after jury trials, and
sentenced to a 15-year presumptive term for first-degree assault
and a consecutive 3-year term for third-degree weapons
misconduct.
Judge Cutler erred in failing to conduct a
hearing before leaving Nason in shackles
during his trial
When the trooper brought Nason into court just before
the start of his trial, Nasons attorney objected to Nason being
handcuffed in front of the jury. It appears from the record
that Nason was handcuffed and was going to be placed in leg
shackles. Apparently there was skirting around the counsel
tables so that the jury would not see the leg shackles. When
Nasons attorney pointed out that Nason would not be able to
approach the bench if court and counsel discussed a legal
question, Judge Cutler stated that she generally did not have
defendants present at those discussions and stated that she would
allow frequent recesses to allow the attorney to consult with
Nason about these conferences.
The matter next came up during Nasons first trial.
Apparently Nasons counsel was concerned whether the jurors had
seen Nasons leg irons. Judge Cutler pointed out that the counsel
tables were skirted so that the jurors could not see the leg
shackles. She stated that it was important that the jury not see
Nason in handcuffs or in leg shackles in a way that would be
demeaning. She observed that the handcuffs and leg irons were
not visible. She also pointed out that the jury was going to
know, from the testimony, that Nason was in custody. She
therefore concluded that the jurys observation of any shackling
would not be prejudicial. But she stated that the court would
try to make sure that the shackles were not deliberately
displayed or emphasized.
The shackling issue came up a third time, at the
beginning of Nasons second trial (his trial on the charge of
felon in possession of a concealable firearm). Nasons attorney
objected to the fact that Nason was in leg shackles. The
attorney pointed out that Nason wanted to participate in the
evidentiary discussions, which would take place at the bench.
Judge Cutler stated that it was up to the state troopers, not the
court, to decide on the security arrangements for prisoners. She
stated that Nason could participate in conferences at the bench,
but if he did, the jury would see the shackling.
The United States Supreme Court has held that shackling
[a defendant in the presence of a jury] should be permitted only
where justified by an essential state interest specific to each
trial.3 In Alaska, the leading case is Anthony v. State,4 in
which the supreme court stated:
In the courtroom, guards should remain
outside the observation of the jury, and
should deliver the defendant to the counsel
table before the jurys arrival if necessary;
manacles, shackles and other physical
restraints are, of course, to be avoided.
Deviation from these standards is justified
only to protect the safety and decorum of the
court, to prevent a threatened escape, or to
respond to some other manifest necessity.
Such measures should be taken only after the
defendant has been given an opportunity for a
hearing, and the restraints imposed should be
the least intrusive which will accomplish the
desired result.[5]
In Anthony and later cases, the supreme court
essentially adopted the ABAs Standards Relating to Trial by Jury
4.1 (Approved Draft 1968).6 Section 4.1 provides in part:
Defendants and witnesses should not be
subjected to physical restraint while in
court unless the trial judge has found such
restraint reasonably necessary to maintain
order. If the trial judge orders such
restraint, [she] should enter into the record
of the case the reasons therefor. Whenever
physical restraint of a defendant or a
witness occurs in the presence of jurors
trying the case, the judge should instruct
those jurors that such restraint is not to be
considered in assessing the proof and
determining guilt.
Applying these standards, it is clear that Judge Cutler
erred in failing to hold a hearing to decide what level of
restraint was necessary to provide court security. We therefore
conclude that the trial court erred in allowing Nason to be
shackled without holding a hearing and without making it clear on
the record the necessity for any restraints. Our next question
is whether Nason was prejudiced by the error.
In Anthony, the supreme court stated that the reason to
limit shackling was primarily to allow the defendant the
presumption of innocence:
A defendant is presumed innocent throughout
the trial, and he should be permitted to face
the jury with the appearance and dignity of a
free and innocent man.[7]
The prior decisions discussing shackling have focused on the
danger that a judges decision to shackle a defendant might
implicitly communicate to the jury the notion that a defendant is
dangerous and therefore more likely to be guilty. But if the
jury does not know of the shackling, the defendant might not be
prejudiced.
The record before us is too limited for us to determine
whether Nason was prejudiced. It appears from the trial record
that Nason was handcuffed and in leg shackles throughout the
trial. But it also appears that the tables at which Nason and
the attorneys sat had skirting which concealed the leg shackles.
Judge Cutler also made comments which suggest that the
handcuffing might not have been apparent to the jury. We
conclude that the record before us is inadequate to determine the
nature of Nasons shackling and whether the jury was prevented
from observing the shackling. We therefore must remand on this
issue.
On remand, the parties must develop the record of how
Nason was shackled (both wrists and ankles) before the jury and
whether the jurors would have been able to see the shackling.8
After the trial court reconstructs the record, the court shall
make findings, including findings as to whether and under what
circumstances the jurors saw the shackles, and whether Nason was
prejudiced by this or any other aspect of the shackling. If the
court concludes that Nason was prejudiced, the court shall grant
Nason a new trial. The trial court shall inform this court of
the new trial and we will close this appeal. In the event that
the court determines that Nason was not prejudiced, the court
shall forward these findings to this court. If the trial court
determines Nason was not prejudiced, after the court serves these
findings on the parties, the parties shall have 30 days to file a
memorandum with this court addressing the trial courts findings.
Gillespie gave Trooper Cyr consent to search the cabin
Nason contends that Heather Gillespie did not give a
valid consent for Trooper Cyr to search the cabin. In order for
a consent to be valid, the consent must be voluntary and must be
given by one who has the authority to give it.9 A consent is
voluntary when the person consenting gives an unequivocal and
specific consent which is untainted by duress or coercion.10 A
court is to determine the voluntariness of the consent by
examining the totality of the circumstances.11 Following an
evidentiary hearing at which Trooper Cyr and Gillespie testified,
Judge Cutler found that Gillespies consent was voluntary and that
it was unequivocal, specific, and intelligently given.
The record consists of not only the testimony of
Trooper Cyr and Gillespie, but a tape recording which Trooper Cyr
made of the interview. Judge Cutler found, and the record
reflects, that Gillespie was carefree and laughing when she
talked to Trooper Cyr. Judge Cutler concluded that, in context,
Gillespie assured the trooper that the house was hers and that it
was fine with her if he wanted to look in the house to
investigate the shooting. The judge found that Gillespie did not
simply acquiesce to the troopers authority.
Whether Gillespie actually consented is a factual
question. We therefore reverse the trial court only if we find
the factual finding is clearly erroneous.12 We conclude that,
on this record, Judge Cutler could properly find that the trooper
asked Gillespie on two occasions if he could go to her cabin and
take a look. Gillespie replied, Okay. Furthermore, Gillespie
gave the trooper explicit directions on how to get to the cabin
and how to avoid problems with her dogs. Later in the day, when
Trooper Hightower interviewed Gillespie, Trooper Hightower asked
Gillespie whether the troopers still had permission to enter her
house. Gillespie agreed that the troopers still had permission.
In context, we conclude that Judge Cutler did not err in finding
that Gillespie consented to allow Trooper Cyr to look in the
cabin.
Nason argues that, even if Gillespie consented to the
search, she imposed two conditions on this consent: First, that
Trooper Cyr needed to go by the Goodbys house (Gillespies
neighbors) before going to the cabin. But Judge Cutler found
that Gillespie was just telling the trooper that he might have
fewer problems with her dogs if he got help from the Goodbys.
Judge Cutler found that, read in context, Gillespie was not
imposing a condition on her consent, but rather was trying to
help Trooper Cyr enter the cabin without harming himself or her
dogs. This finding is supported by the record.
Second, Nason asserts that Gillespie told Trooper Cyr
that he would have to wait until she got back before searching.
But Judge Cutler found that again, in context, Gillespies
statement was not a condition on her consent but was an
expression of concern that Trooper Cyr might have problems with
her dogs if he tried to enter the cabin. This finding is
supported by the record.
We conclude that Judge Cutler did not err in
determining that Gillespie consented to allow Trooper Cyr to
search cabin.
Nasons contention that Gillespies consent did
not authorize the troopers to search the
cabin when Nason was present
Nason argues that, since he was present at the cabin
when Troopers Holm and Greenstreet arrived, the troopers needed
to get his consent before searching the cabin. In his pretrial
motion to suppress, Nason argued that he shared the cabin jointly
with Gillespie, and that since he was present when the troopers
arrived, the troopers needed to get his consent before entering
the residence. The State responded that Gillespies consent was
sufficient even though Nason was present. But Nason never argued
this issue at the evidentiary hearing on the motion to suppress.
Judge Cutler made no ruling on this issue.
The State contends that, under the facts of this case,
Gillespies consent was sufficient to allow the troopers to enter
the cabin without Nasons consent. The State also argues that the
search by Troopers Holm and Greenstreet was justified by exigent
circumstances or that any evidence would have been inevitably
discovered. But because Judge Cutler did not rule on these
issues, we cannot decide them. Since we are already remanding
the case on other grounds, on remand, the parties may address the
remaining suppression issues.
Conclusion
The case is REMANDED for further proceedings consistent
with this decision.
_______________________________
1 AS 11.41.200(a)(1).
2 AS 11.61.200(a)(1).
3 Holbrook v. Flynn, 475 U.S. 560, 568-69, 106 S.Ct. 1340,
1346, 89 L.Ed.2d 525 (1986).
4 521 P.2d 486 (Alaska 1974).
5 Id. at 496 (footnotes omitted).
6 Anthony, 521 P.2d at 496 n.34; Williams v. State, 629 P.2d
54, 57 (Alaska 1981); Hines v. State, 703 P.2d 1175, 1176 (Alaska
App. 1985).
7 Anthony, 521 P.2d at 495 (footnote omitted).
8 See Appellate Rule 210(b)(8).
9 Nix v. State, 621 P.2d 1347, 1348 (Alaska 1981).
10 Schaffer v. State, 988 P.2d 610, 613 (Alaska App.
1999).
11 Id. at 613-14.
12 Murray v. State, 12 P.3d 784, 789 (Alaska App. 2000).
