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are encouraged to bring typographical or other formal
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| STEPHEN W. GRANDSTAFF, | ) |
| ) Court of Appeals No. A-8128 | |
| Appellant, | ) Trial Court No. 4FA-S00-3718 CR |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2127 November 30, 2007 |
| ) | |
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Ralph R. Beistline,
Judge.
Appearances: Michael Cohn, Anchorage, for
the Appellant. John A. Scukanec, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Gregg D. Renkes, Attorney General, Juneau,
for the Appellee. Thomas V. Van Flein,
Clapp, Peterson & Stowers, LLC, Anchorage,
for Amicus Curiae Alaska Dental Society.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
Stephen A. Grandstaff was convicted of misconduct
arising from his medical practice in Fairbanks. The State
charged that Grandstaff manipulated vulnerable, drug-addicted
patients to obtain sex from the patients in exchange for drugs or
drug prescriptions. At trial, the jury found Grandstaff guilty
of sexually assaulting patients, issuing prescriptions that had
no medical purpose to those patients, and stealing Medicaid
funds.
Grandstaff raises several challenges to his convictions
and his sentence. We conclude that none of the issues raised in
this appeal warrants reversing any of his convictions. We also
reject Grandstaffs attacks on his sentence. Therefore, we affirm
the superior courts judgment.
Background facts and proceedings
The States case focused on four women who were
Grandstaffs patients, S.Y., S.P., C.R., and E.S. In 1995, S.Y.
sought treatment from Grandstaff for depression, anxiety, and
endometriosis. S.Y. testified to a history of drug addiction,
and indicated that her beginning efforts at drug treatment
started in 1995 or 1996. Other doctors had previously prescribed
pain pills for her, but they stopped due to her drug-seeking
behavior; S.Y.s medical records at Grandstaffs clinic, Tanana
Valley Clinic, contained entries from other practitioners that
indicated she was not to be given any more narcotics.
Nevertheless, Grandstaff prescribed narcotic pain pills for her.
At first, S.Y. scheduled appointments with Grandstaff
about once a month, but her appointments increased to once a
week, and she went in for more pills every few days. As the
frequency of her visits and prescriptions increased through the
summer and fall of 1997, the tenor of her relationship with
Grandstaff changed. Grandstaffs jokes became more sexual in
nature, and S.Y.s appointments began to include pelvic
examinations. S.Y. testified that there was rarely a nurse in
the room during those examinations, and that she did not have to
express a medical need to get more pills. Throughout this period,
her drug use increased.
On a visit in September 1997, Grandstaff examined S.Y.s
collarbone after a minor auto accident in which she had not been
injured. Grandstaff moved one hand inside her shirt and touched
her breast, and placed his other hand between her legs. He told
her that you know what I want, I know what you want, and I cant
be giving you these pills for nothing. S.Y. left the clinic
without getting any pills. Later that day, Grandstaff called
S.Y. at her parents house, asked how she was doing, and told her
he had something for her. He came by soon after with a bottle of
Percocet, a narcotic analgesic. After S.Y. took some of the
pills, they went upstairs and had sex. S.Y. testified that the
only reason she had sex with Grandstaff was to get the pills.
S.Y. continued to see Grandstaff because no other
doctor would prescribe enough pills to satisfy her. S.Y.
testified that she told Grandstaff more than once that she did
not want to have sex anymore. She also told him that she wanted
to enter drug treatment, but he did nothing to help her. S.Y.
testified that during this period she was really messed up in the
head, and she was miserable.
On December 12, 1997, S.Y. arranged to meet Grandstaff
at the Westmark Hotel across the street from his clinic. S.Y.
testified that she did not want to have sex with Grandstaff
anymore, so she asked a friend to drop by the hotel room while
Grandstaff was there to scare him so that he would leave before
they had sex, but after he had given her drugs. According to
S.Y., Grandstaff arrived and looked around the room, then left
and returned soon after with a bottle of Stadol and four Mepergan
pills, both narcotic analgesics. S.Y. took most of the Stadol
and all of the Mepergan, which made her really fogged. She left
to look for her friend, then returned to the room, where she and
Grandstaff kissed a little bit before S.Y. passed out. When S.Y.
woke up, she was naked and Grandstaff was having sex with her.
S.Y.s mother testified that when S.Y. called home that
night, her speech was slurred and incoherent. S.Y.s mother also
testified that Grandstaff called the next day, asked how S.Y. was
doing, and then hung up.
According to S.Y.s mother, Grandstaff frequently called
S.Y. at her home. In April 1997, S.Y.s mother asked Grandstaff
whether they could plan an intervention or otherwise get help for
S.Y. Grandstaff replied that he knew what he was doing and that
S.Y. was an adult. On another occasion, when S.Y.s mother
challenged Grandstaff about the amount of drugs he was
prescribing for S.Y., Grandstaff told her that she needed to back
off and take care of her other children and her granddaughter
(S.Y.s daughter).
In late 1997 or early 1998, S.Y. overdosed and was
hospitalized at Fairbanks Memorial Hospital (FMH). She was
treated by Dr. Schultz, a psychiatrist, and she talked with him
about her relationship with Grandstaff.
In March 1998, when S.Y. was living at the North Star
Center in Fairbanks, she failed a drug test administered by the
facility and later spoke with the police.
In August 1998, S.Y. was interviewed by Sergeant James
Geier of the Fairbanks Police Department, who later became the
chief investigating officer in the case against Grandstaff.
Sergeant Geier obtained a Glass warrant1 in February 1999 and
recorded two conversations between S.Y. and Grandstaff. In the
second conversation, Grandstaff and S.Y. talked in person and
Grandstaff claimed that he did not know she was an addict. He
also stated that he never consciously did any of those things
that youre thinking of, any of those things you think I did.
When S.Y. asked whether he had been unconscious, Grandstaff
answered, No, but I think, you know, that we do things
subconsciously without realizing what were doing. S.Y. testified
that during this conversation, Grandstaff leaned into the vehicle
and touched her on her breasts and between her legs.
S.P. became a patient of Grandstaffs in the fall of
1996, after the doctor she had been seeing left the clinic. S.P.
had been hospitalized for pneumonia, and she was also being
treated for anxiety and depression. S.P. testified that before
Grandstaff treated her, she had had problems with alcohol and had
used methamphetamine and marijuana. S.P. discussed her drug and
alcohol problems with Grandstaff.
S.P. testified that her initial appointments with
Grandstaff seemed to be normal doctor-patient contacts. However,
in October or November of 1996, during her third or fourth
appointment, while Grandstaff was listening with a stethoscope on
S.P.s back, he pushed up her bra, fondled and sucked her breasts,
and licked her neck and mouth. S.P. asked Grandstaff to stop.
Grandstaff told her she needed to relax. In later visits,
Grandstaff placed his fingers in S.P.s vagina, made S.P. massage
his penis and testicles until he ejaculated, and made S.P.
perform fellatio on Grandstaff.
Grandstaff and S.P. started having sexual intercourse
in November or December of 1996. After each visit, Grandstaff
prescribed drugs for S.P. or gave her samples. S.P. would
massage Grandstaffs penis while he wrote the prescription. S.P.
testified that she could just walk into Grandstaffs office
without an appointment, and that the amount of drugs he gave her
increased after they started having sex. Though the drugs made
her feel like a zombie, S.P. continued seeing Grandstaff because
she wanted the drugs. S.P. testified that Grandstaff wore tight
underwear, similar to racquetball or bicycle shorts.
S.P. testified that in 1998, around the time of her
birthday, she was sexually assaulted by her neighbor. She was
upset on her next appointment with Grandstaff, and when she told
him why, he told her she would feel better if she massaged his
penis. During another appointment, Grandstaff entered the exam
room quietly, signaled S.P. not to talk, and handed her a note on
a napkin. According to S.P., the note said that if she said
anything to anyone, he would deny it because hes a doctor and Im
the patient, and [h]es got his career ahead of him. After she
read the note, Grandstaff rinsed the note in the sink and threw
it away, and S.P. left without getting any drugs. The last time
S.P. went to see Grandstaff at the clinic, she was told he was
not there due to a family emergency.
In 1998 or 1999, after S.Y. recorded the two
conversations with Grandstaff, S.Y. approached S.P. at a Taco
Bell because she recognized her from the pharmacy at the clinic
building. S.Y. told S.P. that she was a patient of Grandstaffs,
and asked S.P. if anything had happened with Grandstaff. S.P.
told S.Y. that she obtained drugs by having sex with Grandstaff.
In March 1999, S.P. spoke with Sergeant Geier, who
applied for another Glass warrant. The recording of the
conversation between S.P. and Grandstaff failed due to a
malfunction of the recording equipment, but Sergeant Geier
testified that he heard Grandstaff tell S.P. she did not have to
talk to the police, but could speak with his attorney if she
needed any advice. At some point, S.P. also told Dr. Schultz,
the psychiatrist, about her involvement with Grandstaff.
C.R. was clean and sober in January 1997 when she was
released from prison after 3 1/2 years in custody. Soon after
her release, she started seeing Grandstaff for a condition that
caused a weakening of the muscles on her left side. She told
Grandstaff about her criminal history and her history of drug
addiction and prostitution. C.R. became addicted to the drugs
Grandstaff prescribed for her.
C.R. testified that when Grandstaff wrote her
prescriptions, she sat in his lap, played with his hair, and
rubbed his back and leg. Grandstaff would get that prescription
for me quick because he knew thats what I wanted. ... He knew
what I was coming for was my script. C.R. sold some of the drugs
she got from Grandstaff, and testified that she continued to see
him because she was an addict and she had no trouble getting
drugs from him. C.R. was hospitalized after an overdose in
September 1998. When she went to see Grandstaff after the
overdose, he told her she could not have any more drugs.
E.S. was a patient of Grandstaffs from September 1995
through August 1998. E.S. died of a drug overdose in December
1999. Her medical records revealed several serious medical
problems, as well as a long history of alcohol and drug abuse,
heroin addiction, and drug-seeking behavior.
The grand jury returned a 105-count indictment charging
Grandstaff with one count of first-degree sexual assault,2 two
counts of second-degree sexual assault,3 four counts of second-
degree theft,4 fifty-five counts of second-degree misconduct
involving a controlled substance,5 and forty-three counts of
fourth-degree misconduct involving a controlled substance.6
The first-degree sexual assault charge stemmed from the
incident involving S.Y. at the Westmark Hotel (Count 26). The
two second-degree sexual assault charges were for the first
incidents of nonconsensual sexual contact with S.Y. (Count 25)
and S.P. (Count 68), respectively. The four theft charges were
based on the total amounts that Medicaid paid for illegitimate
medical services and prescriptions for each of the four women.
Each drug count corresponded with a specific prescription for a
Schedule IA drug (second-degree misconduct involving a controlled
substance) or a Schedule IVA drug (fourth-degree misconduct
involving a controlled substance) prescribed or supplied for a
non-medical purpose.
Grandstaff filed numerous motions before and during
trial, asking the court to dismiss the indictment, to sever the
sexual assault counts from the drug and theft counts, and to
suppress various evidence, including some material Grandstaff
argued was privileged. He also moved to suppress the
conversations recorded pursuant to the Glass warrants. These
motions were generally denied. Grandstaff challenges many of
these rulings on appeal.
The trial jury convicted Grandstaff of the first-degree
sexual assault of S.Y. (Count 26), and of the second-degree
sexual assault of S.P. (Count 68); the jury acquitted Grandstaff
of the second-degree sexual assault of S.Y. (Count 25). The jury
also convicted Grandstaff of the three second-degree theft
charges related to S.Y., S.P., and C.R., and acquitted him of the
theft charge related to E.S. Grandstaff was convicted of thirty-
two counts of second-degree and thirty-six counts of fourth-
degree misconduct involving a controlled substance, for
prescriptions issued to S.Y., S.P., and C.R. He was acquitted of
six of the drug counts related to S.P., one of the drug counts
related to C.R., and all of the counts related to E.S.
Grandstaff subsequently filed a motion to set aside the
judgment, arguing that the drug counts in the indictment were
fatally defective. This motion was denied.
During sentencing, the State presented two other women
who testified that Grandstaff sexually molested them while they
were his patients.
Superior Court Judge Ralph R. Beistline imposed a
composite term of 34 years with 15 years suspended, for 19 years
to serve. Grandstaff appeals.
Discussion
Grandstaffs motion to dismiss the indictment
Grandstaff argues that there are several reasons why
Judge Beistline should have granted his motion to dismiss the
indictment.
First, Grandstaff claims that the State failed to
present exculpatory evidence to the grand jury as required by
Frink v. State.7 Exculpatory evidence for purposes of Frink is
evidence that tends, in and of itself, to negate the defendants
guilt.8
Grandstaff claims that the prosecutor should have
informed the grand jury of several matters. First, Grandstaff
argues that the grand jury should have known that someone on
behalf of the prosecution promised C.R. that she would not be
prosecuted for selling some of the drugs Grandstaff prescribed
for her, that C.R. told a police officer that she wanted money
before cooperating, and that C.R. told a police officer that she
had not been totally truthful about her relationship with
Grandstaff. Although evidence of each of these circumstances
provides potentially useful evidence for impeachment, none of
those circumstances provides evidence that tends to negate
Grandstaffs guilt.
Grandstaff also argues that the prosecutor should have
informed the grand jury that S.Y. cooperated with the police in
other investigations and that S.Y. received the benefit of the
States dismissal of a petition to revoke her probation. But
Grandstaff did not rely on this claim in the superior court.
Therefore, this claim is waived. Even if it was not waived,
evidence of S.Y.s cooperation with the police and any benefit she
received is not the type of evidence that tends to negate
Grandstaffs guilt.
Grandstaff also argues that the prosecutor improperly
prevented S.Y. from responding to a question whether Grandstaff
enjoyed having sex with her when she was unconscious. Grandstaff
claims this evidence is exculpatory because it would undermine
S.Y.s testimony that she did not consent to the sexual activity
in the hotel near Grandstaffs office. But Grandstaff did not
raise this claim in the superior court, so it is also waived.
Next, Grandstaff argues that the prosecutor presented
perjured testimony when S.Y. testified at the grand jury that she
did not want to have sex with Grandstaff at the hotel. But
Grandstaff did not raise this claim in the superior court. And
Grandstaff interprets the record in the light most favorable to
this claim. S.Y. testified at the grand jury and at trial that
she in fact did not want to have sex with Grandstaff even though
she hoped to lure him to the hotel with an expectation of sex.
She planned to get the drugs from Grandstaff and then have her
friend drop in and scare Grandstaff away before she had to engage
in sex. But she lost consciousness after ingesting the drugs
Grandstaff brought to the hotel. When she regained consciousness,
she found that Grandstaff was engaged in sexual intercourse with
her. Even if Grandstaff had preserved this claim, we do not read
the record as establishing perjury by S.Y.
Next, Grandstaff claims Count 68 of the indictment
should have been dismissed. Count 68 charged Grandstaff with
second-degree sexual assault with S.P. between the approximate
dates of October 31, 1996 and March 31, 1997. In the superior
court, Grandstaff argued that the evidence did not establish
which of the incidents of sexual contact described by S.P. was
charged in Count 68. But a fair review of the testimony
establishes that S.P. was referring to the first time Grandstaff
fondled her. Judge Beistline properly concluded that the
evidence presented supported that count.
Finally, Grandstaff argues that Judge Beistline should
have dismissed the indictment because the State presented, to the
grand jury, a report prepared by Dr. Theodore Parran, an
associate clinical professor at Case Western Reserve University
School of Medicine in Cleveland. The State hired Dr. Parran to
review the treatment Grandstaff provided to S.Y., S.P., C.R., and
E.S. and determine if there appeared to be a medical purpose for
the treatment he provided and the drugs he prescribed or
delivered to each. Dr. Parran prepared a report of his findings
and the State presented the report as an exhibit before the grand
jury. A witness read Dr. Parrans findings and conclusions. The
prosecutor informed the grand jury that Dr. Parran was standing
by to testify telephonically from Ohio if the grand jury had
questions. The grand jury elected not to hear from Dr. Parran.
Grandstaff argues that the report was inadmissible
hearsay. But Alaska Rule of Criminal Procedure 6(r)(1) provides
in relevant part that [i]n appropriate cases, ... witnesses may
be presented to summarize admissible evidence if the admissible
evidence will be available at trial. And the Alaska Supreme
Court stated in Taggard v. State9 that [t]he need to use a
summary of available evidence may arise in cases involving
voluminous records.10
We conclude that Grandstaffs case is such a case. The
medical records for each patient and the prescriptions that
supported the numerous drug charges were voluminous. In State v.
Gieffels,11 the supreme court considered what establishes
compelling justification for the use of hearsay and stated that
where a professional submits a technical report and his testimony
would simply affirm that report, it is proper to introduce the
evidence by hearsay testimony since the presumed inconvenience is
a compelling reason for such evidence.12 Dr. Parran was available
if the grand jury had any questions for him and ultimately he did
testify at trial. (Grandstaff also argues that Dr. Parrans
report was based on privileged information and documents. We
address and reject those claims below.)
Grandstaff also points out that Dr. Parrans opinion was
phrased in terms of a reasonable degree of medical certainty.
Grandstaff argues that this standard is insufficient because it
is not proof beyond a reasonable doubt. But evidence supporting
an indictment must establish a probability of guilt, not proof of
guilt beyond a reasonable doubt.13 Dr. Parrans conclusion in his
report that the prescriptions issued by Grandstaff lacked a
legitimate medical purpose was sufficient to support the
indictment under this standard.
Grandstaff also complains that Dr. Parrans report did
not address each count of misconduct involving a controlled
substance individually, and that the report contained
inflammatory statements not within his realm of expertise.
Grandstaff waived these attacks on the indictment because he did
not raise them in the superior court.14
Finally, Grandstaff claims that there was insufficient
time for the grand jury to consider each count of the indictment
individually. The record shows that the grand jury considered
the 105-count indictment for forty-three minutes before returning
a true bill. The record shows that the foreperson of the grand
jury indicated that the grand jury had considered each count
independently. Standing alone, this record is not sufficient to
establish misconduct on the part of the grand jury. Grandstaff
has not overcome the presumption of regularity that attaches to a
court proceeding.15
We conclude that Judge Beistline did not abuse his
discretion when he rejected Grandstaffs claims and declined to
dismiss the indictment.16
Grandstaffs motion to sever the sexual assault charges
Before trial, Grandstaff moved to sever the three
sexual assault charges from the other drug-related charges.
Judge Beistline denied the motion. Properly joined offenses may
be severed if trying the charges together would unduly prejudice
the defendant.17 We overturn the denial of a motion to sever only
if the defendant shows both an abuse of discretion and actual
prejudice.18
Grandstaff argues that he was prejudiced in two ways.
First, he contends that the large amount of evidence related to
the drug and theft charges constituted character evidence that
would induce the jury to convict him on the allegedly weaker
sexual assault charges because they would consider him a bad man.
Second, Grandstaff argues that he should have been allowed to
take the stand to explain the drug charges without exposing
himself to cross-examination on the sexual assault charges.
Grandstaffs first claim is without merit. As the State
points out, the factual background of all the charges was
intertwined and could not be explained in a vacuum. Evidence
that Grandstaff prescribed large amounts of drugs to S.Y. and
S.R. would be admissible in a trial on the sexual assault charges
to show that Grandstaff prescribed the drugs to gain sexual
access to those patients. If evidence of the drug-related
offenses would be admissible in a trial for the sexual assault
charges, the defendant is hard-pressed to show actual prejudice
from the failure to sever, since the evidence would have been
admitted even if the judge had granted separate trials.19
In his second argument, Grandstaff contends that trying
the charges together violated his constitutional right to remain
silent, forcing him to face cross-examination on the sexual
assault charges should he choose to testify regarding the drug-
related charges. Grandstaff relies on Cross v. United States,20
which stands for the proposition that forcing a defendant to
choose between testimony on one count and silence on another
constitutes prejudice.21
But in a line of cases beginning with Cleveland v.
State,22 the Alaska courts have ruled that in order to rely on
this argument, a defendant must make a convincing showing that he
has both important testimony to give concerning one count and
strong need to refrain from testifying on the other.23 This means
the defendant must specifically identify what he plans to testify
about on the one count, and what dangers lie in testifying on the
other.24 The trial court found that Grandstaff had important
testimony to give on the drug charges, but that he was less than
clear about the dangers inherent in testifying about the sexual
assault charges. Grandstaff is no more specific here. Without
an explicit showing of prejudice, Grandstaff is not entitled to
severance.25 Therefore, we conclude that Judge Beistline did not
abuse his discretion in denying the motion to sever.
The evidence seized under the Glass warrant was
admissible
Grandstaff moved to suppress the conversations between
Grandstaff and S.Y. that were recorded under the Glass warrants.
Grandstaff argued that because S.Y. acted as a police agent, her
promises to drop civil charges if he spoke with her were
impermissible inducements. Grandstaff argued that because of
this purported inducement, his statements were involuntary.
Judge Beistline denied Grandstaffs motion to suppress, finding
that because Grandstaff was not in custody, was not restrained,
was not forced to speak with S.Y., and was able to cut off the
conversation at any time, his statements were voluntary.
On appeal, Grandstaff renews his objection to the
admission of the recorded conversations, arguing that the police,
through S.Y., violated his rights to counsel and to remain
silent.
During the recorded conversations, Grandstaff told S.Y.
repeatedly that he could not talk to her because his lawyer had
advised him not to. He contends that the conversation should
have ceased as soon as he invoked his rights to counsel and to
silence.
Grandstaff argues that he invoked his right to counsel
when he told S.Y. that his lawyer advised him not to talk to her.
Grandstaff also argues that because the police knew he had
counsel for a potential civil suit, it was inappropriate for them
to contact him in the course of their criminal investigation.
Grandstaff does not specify which right to counsel his argument
concerns. He did not yet have a Sixth Amendment right to
counsel, because the case was in its investigatory stage the
right to counsel had not attached because Grandstaff had not been
formally charged with any crime.26 This is true even though the
police knew Grandstaff had a lawyer.27
Grandstaff asserts that S.Y. blocked his exit from the
parking lot in order to speak with him. He does not point to any
facts in the record to support this contention, though Grandstaff
did state on the tape, Can I pull out?28 If Grandstaff is
suggesting that his Fifth Amendment right to counsel was
violated, this argument also fails. Grandstaff does not
challenge Judge Beistlines findings that Grandstaff was not in
custody, was not restrained, was not forced to speak with S.Y.,
and was able to cut off the conversation at any time. Grandstaff
does not otherwise argue that he was in custody.29
Grandstaff also argues that he invoked his right to
silence by repeatedly telling S.Y. that he could not talk to her.
Yet Grandstaff did not walk away, and continued to speak to S.Y.
Grandstaff contends that S.Y. induced Grandstaff to
speak by promising to drop civil charges against him, and by
threatening to commit suicide if he did not talk to her.
Grandstaff asserts that under Alaska law, statements acquired by
improper inducements and threats are inadmissible. Grandstaff
cites Beavers v. State30 and two other cases31 in which confessions
were ruled involuntary after police promised leniency or
threatened harsher treatment. The Alaska Supreme Court stated in
Beavers that [t]hreat-induced confessions should be considered
presumptively involuntary absent evidence affirmatively
indicating that the suspects will was not overcome by the
threats.32
Even assuming S.Y. was a police agent, there is no
merit to Grandstaffs claim that his statements to S.Y. were
involuntary. We addressed a similar claim in an unpublished
case, Tso v. State.33 Tso was the suspect in a murder
investigation, and the police obtained a Glass warrant to record
conversations between Tso and an acquaintance named John Monroe.34
Tso moved to suppress the conversations recorded under the Glass
warrant, arguing that his incriminating statements were
involuntary because Monroe had continually badgered him to talk
about the homicides and had disparaged the Public Defender
Agency, which was representing Tso, as part of a psychological
campaign to get Tso to talk.35 We rejected Tsos claim:
During his conversations with Monroe,
Tso was not in custody and he did not know he
was speaking to a police agent. Thus, from
Tsos perspective, Monroes attempts to engage
Tso in conversation about the homicides and
Monroes negative comments concerning the
Public Defender Agency did not bear an
official imprimatur. We recognize that a
defendants statements can be involuntary if
they are elicited by coercive actions on the
part of an informant secretly working for the
police. However, Monroe did not threaten Tso
to make him confess, nor did Monroe promise
Tso immunity or leniency for confessing.
Monroe and Tso did engage in a fist fight
during this period of time, but there is no
indication that this altercation was related
to Monroes attempts to obtain information
from Tso.
While Tso did make several incriminating
statements during his series of conversations
with Monroe, Tso generally displayed
reticence when speaking about the homicides.
There is no evidence that Tsos will was
overborne by Monroe or that Monroe threatened
or promised anything that would make an
innocent person confess to committing
homicide.[36]
Similarly, Grandstaff made some incriminating
statements during his two conversations with S.Y., but there is
no evidence that he made these statements because his will was
overborne. It is true that S.Y. said she wanted to drop her
civil suit and that she was suicidal. But she never offered to
drop her civil suit in exchange for an admission by Grandstaff;
nor did she threaten to commit suicide if he did not make an
admission. Indeed, Grandstaff has not identified any specific
inculpatory statements he claims were induced by S.Y.s alleged
promises and threats.
Grandstaffs claim finds little support in Beavers. In
Beavers, the defendant confessed in detail to his participation
in a robbery after a trooper told him he would get hammered if he
lied about his involvement in the crime.37 Beavers was a sixteen-
year-old boy who was interrogated by a trooper in a patrol car.38
Grandstaffs conversations with S.Y., a former patient and
admitted drug addict, had none of the indicia of a coercive
police interrogation. Although there is some evidence that S.Y.
was blocking Grandstaffs truck when she first contacted him, this
did not prevent Grandstaff from voluntarily ending the contact.
During the second recorded conversation, Grandstaff repeatedly
refused S.Y.s invitations to sit in her car, and he could have
walked away at any time.
Moreover, the record contains affirmative indications
that S.Y.s threats and entreaties were ineffective.39 When S.Y.
told Grandstaff she was suicidal, and that she might lose her
child because of her drug use, Grandstaff simply recommended that
she go to the hospital and reassured her that everything would
work out. Although S.Y.s offers to drop her civil case may have
prompted Grandstaff to tell S.Y. he cared about her and that he
had not been involved with other women, he consistently denied
knowing she was an addict when he prescribed drugs to her.
Viewed as a whole, the conversations show that Grandstaffs will
was not overborne and that his statements to S.Y. were voluntary.
Grandstaff also suggests that the conversations
infringed on his right to privacy. Grandstaff maintains that
suppression issues require courts to balance the societal
interest in using reliable evidence against criminals with the
societal interest in protecting citizens privacy.40 Grandstaff
does not explain his privacy argument further, so we conclude
that it is waived for inadequate briefing.41
Because Grandstaff had no right to counsel to invoke,
and because S.Y.s statements were not coercive police activity
that would render a statement involuntary, Judge Beistline
properly denied Grandstaffs motion to suppress the recorded
conversations with S.Y.
The privilege claims
Grandstaff argues that the superior court improperly
admitted evidence that was protected by privilege.
Grandstaff raised these claims in a motion to suppress
filed after the State filed a motion in limine. The States motion
in limine sought rulings on the admissibility of several
admissions by Grandstaff relating to his sexual conduct. The
States motion grouped Grandstaffs admissions into eight different
categories: admissions to personnel at his clinic; admissions to
hospital personnel during their review of his hospital practice
privileges that were memorialized in records prepared by hospital
personnel; admissions contained in medical records from Abbott
Memorial Hospital in Minneapolis, Minnesota, and the Sante Center
for Healing in Argyle, Texas (facilities where Grandstaff sought
professional help for his behavior), and admissions contained in
the agreement to limit his hospital privileges; admissions in
Grandstaffs personal diary that he prepared while in treatment;
admissions in his medical license renewal application; verbal
admissions during an interview with a Division of Occupational
Licensing (DOL) investigator; admissions during an examination of
Grandstaff by Dr. Irwin Dreiblatt contained in a report by
Dreiblatt to the State Medical Board; and admissions contained in
Grandstaffs agreement to surrender his medical license.
In Grandstaffs motion to suppress, he asked the court
to exclude almost all of the States identified evidence as well
as additional items, and he requested an evidentiary hearing on
the motion.
In a written decision, Judge Beistline ruled on the
admissibility of the evidence described in the motions and denied
the request for an evidentiary hearing. Judge Beistline ruled
that Grandstaffs admissions that were memorialized in documents
were admissible, with the exception of Grandstaffs personal diary
and disclosures to his clinic that were not prepared for business
purposes. A few days later, Judge Beistline issued an order
containing further analysis of his decision. Below, we discuss
the issues raised by Grandstaff regarding Judge Beistlines
ruling.
Dr. Dreiblatts testimony
First, Grandstaff argues that Dr. Dreiblatts testimony
should have been excluded. Grandstaff was examined by Dr.
Dreiblatt after the DOL learned that Grandstaffs affiliation with
his clinic had been terminated and that Grandstaffs privileges at
the Fairbanks Memorial Hospital had been limited. Also, Dr.
Schultz contacted the DOL after S.Y. and S.P. told him about
Grandstaffs conduct. Coincidentally, around this time,
Grandstaff submitted an application to the DOL to renew his
medical license because it was up for renewal.
In the renewal application, Grandstaff stated that he
had been evaluated for disorders for which he had received two
months of treatment. Grandstaff provided the DOL with a release
that authorized the DOL to examine all records that pertain to
credentialing records and actions at facilities at which I have
applied for or held privileges to practice medicine, and to
provide copies of those records to the [DOL] and/or its
investigators, and/or representatives of the Office of the
Attorney General of the State of Alaska.
Later that month, a DOL investigator interviewed
Grandstaff, who was accompanied by his attorney. Grandstaff
admitted having sexual relations with S.Y. at his office, at her
home, and at a hotel near his office. He also admitted that he
had sexual relations with S.P. at his office.
The State Medical Board asked Grandstaff to be
evaluated by Dr. Dreiblatt; Dreiblatt is a forensic psychologist
who concentrates on issues involving doctors who engage in sexual
conduct with their patients. Grandstaff submitted to a three-day
evaluation by Dr. Dreiblatt.
Before the evaluation, Grandstaff provided a release
that authorized Dr. Dreiblatt to report his findings to the DOL
and the State Medical Board.
At trial, Dr. Dreiblatt testified that Grandstaff
admitted being sexually involved with both S.Y. and S.P. and
admitted prescribing large amounts of drugs to them, despite
their long-term drug dependence problems. Grandstaff reported
that he had sexual fantasies not only about S.Y. and S.P., but
also other female patients.
Dr. Dreiblatt concluded that Grandstaff used drugs to
bait S.Y. and S.P. and to reward them for having sex with him.
According to Dr. Dreiblatt, Grandstaff admitted that he chose
vulnerable, unhealthy addicts in order to transform the doctor-
patient relationship into a sexual relationship.
Grandstaff argues that Dr. Dreiblatts testimony is
inadmissible on two grounds. Grandstaff first claims that Dr.
Dreiblatts evaluation is covered by the patient-psychotherapist
privilege in Alaska Rule of Evidence 504(b). Evidence Rule
504(b) defines the privilege as follows:
General Rule of Privilege. A patient
has a privilege to refuse to disclose and to
prevent any other person from disclosing
confidential communications made for the
purpose of diagnosis or treatment of the
patients physical, mental[,] or emotional
conditions ... between or among the patient,
the patients physician or psychotherapist, or
persons who are participating in the
diagnosis or treatment under the direction of
the physician or psychotherapist, including
members of the patients family.
The rule applies to confidential communications within
the group designated in the rule. Evidence Rule 504(a)(4)
defines confidential communication:
A communication is confidential if not
intended to be disclosed to third persons
other than those present to further the
interest of the patient in the consultation,
examination, or interview, or persons
reasonably necessary for the transmission of
the communication, or persons who are
participating in the diagnosis and treatment
under the direction of the physician or
psychotherapist, including members of the
patients family.
In Plate v. State,42 we considered whether a
communication was a confidential communication for purposes of
the privilege in Evidence Rule 506, which addresses
communications with members of the clergy.43 We observed that the
definition of a confidential communication in Rule 506 tracks the
definition for the psychotherapist-patient privilege and the
lawyer-client privilege.44 We announced a four-part test that a
person claiming that a communication with a clergyman was
confidential must prove: first, that the communicant subjectively
believed that the conversation was private; second, that this
belief was reasonable under the circumstances; third, that he
intended that the communication not be disclosed to anyone else;
and fourth, that he reasonably believed that the clergyman shared
this intention.45 We used this same test when we considered the
application of the psychotherapist-patient privilege in Ramsey v.
State.46
Before Grandstaff met Dr. Dreiblatt, Dreiblatt wrote
Grandstaff a letter that confirmed that Grandstaff would have to
sign a release so that Dreiblatt could report to the State
Medical Board. When Dr. Dreiblatt began the interview with
Grandstaff, Dreiblatt told Grandstaff that anything they
discussed could be and would likely be included in the report
that went to the Medical Board. Grandstaff executed the release
that authorized Dr. Dreiblatt to report to the State Medical
Board. Applying the test from Plate and Ramsey, it is clear that
a reasonable person in Grandstaffs position would not believe
that the contents of his conversation with Dr. Dreiblatt would be
confidential. Thus, we reject Grandstaffs claim that his
communications with Dr. Dreiblatt were covered by the
psychotherapist-patient privilege established in Evidence Rule
504(b). Next, Grandstaff argues that the admission of Dr.
Dreiblatts testimony violated his constitutional right against
self-incrimination. Grandstaff contends that because he risked
losing his medical license if he did not cooperate with Dr.
Dreiblatt, the admission of his statements during the evaluation
was akin to compelled self-incrimination. But there is no
indication that Grandstaff would automatically lose his license
or that the Medical Board would impose any other penalty based on
the mere fact that he asserted his privilege against self-
incrimination. Therefore, the interview did not infringe on
Grandstaffs privilege against self-incrimination.47
The State contends that Grandstaff did not preserve
this argument in the superior court. The States point is well-
taken. Grandstaff mentions Dr. Dreiblatts report as an adjunct
to his claim that his statements to a DOL investigator were not
voluntary. A trial judge considering a voluntariness question
must consider several factual issues, including the mental state
of the defendant, to determine if the defendant waived his Fifth
Amendment rights.48 Grandstaff did not sufficiently alert the
superior court that it needed to resolve these issues to rule on
his claim.
Even if Dr. Dreiblatt was an agent of the State for
purposes of deciding whether the Fifth Amendment applied, our own
review of the record to evaluate Grandstaffs mental state and its
legal significance reveals that nothing about Grandstaffs
evaluation by Dr. Dreiblatt supports an involuntariness claim.
The psychotherapist-patient privilege as applied
to records memorializing the treatment Grandstaff
received
Next, Grandstaff argues that the records of his
evaluation and treatment at Abbott Northwestern Hospital and the
Sante Center for Healing were covered by the
psychotherapist-patient privilege. After Grandstaffs clinic
learned of his misconduct, Grandstaff was placed on medical
leave. Thereafter, Grandstaff was evaluated at Abbott
Northwestern Hospital. After the evaluation, Grandstaff enrolled
in the Sante Center where he stayed from June through August of
1998. Grandstaff listed both programs as facilities where he
sought treatment for his disorders.
The DOL asked Grandstaff for a release to review his
treatment records. Grandstaff provided the release. Because
Grandstaffs release operates as a waiver of the
psychotherapist-patient privilege under Evidence Rule 504(b), we
reject Grandstaffs privilege claim.
Grandstaff also claims that the records are
confidential under 42 CFR Part 2. But the release Grandstaff
signed recognized that portion of the Code of Federal Regulations
and waived his rights under that regulation.
Finally, Grandstaff argues that even if the records
were admissible, they should have been excluded because, under
Evidence Rule 403, the probative value of the evidence was
outweighed by the danger of unfair prejudice. Grandstaff does
not explain why this evidence should have been excluded beyond
stating that the evidence was inflammatory and had marginal
probative value. Judge Beistline discussed this balancing test
when he ruled on Grandstaffs privilege claims, and declined to
exclude the records of Grandstaffs treatment. Grandstaff has not
convinced us that Judge Beistlines ruling was an abuse of
discretion.
The court did not err by admitting statements
Grandstaff made during a peer review investigation
of his conduct
Medical peer review refers to the process hospitals use
to oversee medical staff to improve patient care, reduce hospital
liability, and lower rates for malpractice insurance. In this
case, the trial court admitted inculpatory statements Grandstaff
made during a peer review investigation of his conduct.
Grandstaff claims these admissions were privileged under the
statute governing the confidentiality of peer review records.
Alaska Statute 18.23.030(a) provides, in pertinent
part, that all data and information acquired by a review
organization in the exercise of its duties and functions shall be
held in confidence and may not be disclosed to anyone except to
the extent necessary to carry out the purposes of the review
organization and is not subject to subpoena or discovery. A
violation is punishable as a misdemeanor.49
The issue in this case is the scope of the privilege
created by this statute in particular whether the privilege
applies in all cases, both civil and criminal, or only in civil
cases. The conventional justification for this privilege is that
protecting doctors from testifying against their colleagues
promotes candor during peer review proceedings.50 Such candor, at
least in theory, leads to more rigorous oversight of patient
medical care and lower malpractice premiums.
The privilege applies to all data and information
acquired by a peer review organization in the exercise of its
duties which would include statements made by a doctor under
investigation, as well as statements by medical staff providing
evidence. The privilege does not reach any information,
documents, or records that are independently available from third
parties. These materials are not immune from discovery or use in
a civil action merely because they were presented during
proceedings of a review organization.51 Moreover, a member of a
peer review committee, or a person who testified before the
committee, cannot be prevented from testifying in a civil action
about matters within their knowledge though they cannot be asked
about what they said to the peer review committee, or about the
opinions they formed as a result of their participation in peer
review proceedings.52 In other words, the statute shields the
proceedings and files of peer review committees from subpoena or
discovery, but the information may be obtained independently from
third parties.
Thus, if this were a civil case, the answer would be
clear: Grandstaff could be called as a witness in that civil
case, and he could be asked the same questions he was asked
during peer review. But any statements he previously made to the
review committee would be privileged, and he could not be asked
to disclose what he said to the committee.
Alaska courts have not addressed whether this privilege
extends to criminal cases. But the language and history of AS
18.23.030(a) suggest that the privilege is limited to civil
actions.
Read in isolation, the first sentence of AS
18.23.030(a) is very broad, and there is nothing to suggest that
it is limited to civil cases: Except as provided in (b) of this
section, all data and information acquired by a review
organization in the exercise of its duties and functions shall be
held in confidence and may not be disclosed to anyone except to
the extent necessary to carry out the purposes of the review
organization and is not subject to subpoena or discovery.
But AS 18.23.030(a) only makes sense as a whole if a
narrow construction is put on the first sentence. The parts of a
statute should be construed together so as to produce a
harmonious whole.53 If the first sentence of AS 18.23.030(a) is
interpreted broadly to mean that all information acquired in a
peer review investigation is privileged in both civil or criminal
actions, the exception in the third sentence of subsection (a)
would be incongruous. That exception provides that any
information, documents, or records that are otherwise available
from original sources are not immune from discovery or use in a
civil action merely because they were presented during
proceedings of a review organization. If the peer review
privilege extended to civil and criminal actions, but this
exception applied only to civil actions, then information
otherwise available from original sources for instance, medical
records provided to the peer review committee would be immune
from discovery in criminal cases but not in civil cases.
Although the pertinent legislative history is limited,
it also supports the conclusion that the peer review privilege in
AS 18.23.030 is limited to civil actions. Alaska Statute
18.23.030 was enacted in 1976 as part of a larger bill that
addressed the issue of rising medical malpractice insurance
rates.54 There does not appear to be any contemporaneous
legislative history addressing whether the privilege in AS
18.23.030(a) applies to criminal actions. However, AS 18.23.030
was amended in 1987 when the legislature passed a bill to
strengthen the State Medical Boards ability to detect and weed
out incompetent and impaired medical practice.55 That bill, House
Bill 70, amended AS 08.64.336 to tighten the statutory duty of
hospitals to report a doctor to the State Medical Board when they
take action to revoke or restrict the doctors hospital privileges
(or when the doctor resigns to avoid such action).56 During
discussion of House Bill 70, State Medical Board Chair Thomas L.
Conley told the House Judiciary Committee that some members of
the Medical Board were concerned that imposing this stricter
reporting requirement on hospitals would chill the peer review
function:
The Board is split on this. ... The
worry among certain people is that the
quality review and peer review functions of
the hospitals may suffer some problems by
requiring reports ... and theres a feeling
among some Board members that it would chill
things to the point that no one would be
willing to participate in any kind of quality
review or peer review for fear that the
records would wind up being subpoenaed. As
things now stand [under AS 18.23.030(a)]
those ... [peer review] organizations now
have confidentiality and their records cannot
be subpoenaed.[57] However, it only really
refers to civil actions, not to criminal
actions. So its an area of some confusion.
Some people feel that although ... the
intention [behind the reporting requirement]
is good, that it would wind up setting up a
situation where quality assurance committees
in hospitals would fear to do anything. I am
not personally of that opinion but there is
some strong feeling on the Board that that
would be the case.[58]
It appears from this statement that, at least in 1987
when House Bill 70 was enacted, the State Medical Board
interpreted the privilege provision in AS 18.23.030(a) as
applying only to civil actions. Conleys comment before the House
Judiciary Committee does not provide definitive insight into what
the legislature intended when it initially adopted the peer
review privilege in 1976. On the other hand, if legislators had
disagreed with Conleys interpretation, it would have been a
simple matter to amend the statute to clarify that the
evidentiary privilege extended to criminal cases. Where ...
practical and contemporaneous interpretation has been called to
the legislatures attention, there is more reason to regard the
failure of the legislature to change the interpretation as
presumptive evidence of its correctness.59
Moreover, House Bill 70 amended AS 18.23.030 in a
manner that suggests the legislature adopted the State Medical
Boards interpretation. As initially drafted, the bill made no
mention of the peer review privilege in AS 18.23.030. But in a
hearing before the House Judiciary Committee, Dale Shirk of the
Health Association of Alaska expressed concern that the stricter
hospital reporting requirement would require hospitals to release
information that was protected from disclosure by the peer review
privilege. Shirk suggested an amendment to AS 18.23.030 to
ensure that only the State Medical Board had access to such
reports.60
Conley drafted a proposed amendment that same day,
which initially read: The board shall hold such reports
confidential and they shall be non-discoverable unless and until
the board shall issue a final order of disciplinary action under
AS 08.64.331(a).61 The language that was ultimately adopted as
subsection AS 18.23.030(d) instead paralleled the privilege
language in AS 18.23.030(a) that is, it read that information
contained in a report submitted to the State Medical Board, and
information gathered by the board during an investigation, under
AS 08.64.336 is not subject to subpoena or discovery unless and
until the Board takes formal action on a practitioners license.62
Given Conleys statement that the peer review privilege in AS
18.23.030(a) was limited to civil actions, and the absence of any
legislative discussion about expanding the privilege to criminal
proceedings, it appears that the legislature intended the phrase
not subject to subpoena or discovery to apply only to civil
actions.
Furthermore, by eliminating the privilege once the
Medical Board takes action on a license, the legislature
demonstrated its willingness to limit the privilege to serve
other interests, even though doing so might result in some loss
of candor in peer review proceedings. As noted above, Dale Shirk
of the Health Association of Alaska had recommended giving only
the State Medical Board access to such reports; the legislature
instead opted for a narrower privilege, limiting access to the
reports only until the Board takes formal action on a license.
Amicus Curiae Alaska Dental Society points out that a
Michigan appeals court has interpreted Michigans peer review
privilege to extend to criminal cases. But although In re
Lieberman63 has some persuasive force as a policy decision, the
statute it construes is distinguishable. It provides in full:
The records, data, and knowledge collected for or by individuals
or committees assigned a review function described in this
article are confidential and shall be used only for the purposes
provided in this article, shall not be public records, and shall
not be available for court subpoena.64 The Michigan court thus
was not obliged, as we are, to harmonize the broad language of
its peer review privilege with other language in the statute that
contradicts such a broad reading.
Evidentiary privileges are narrowly construed.65 We
have found no legislative history conveying that the legislature
intended the peer review privilege to apply in criminal actions,
and the language of AS 18.23.030, considered as a whole, suggests
that this was not the legislatures intent. We therefore conclude
that the privilege in AS 18.23.030(a) does not extend to criminal
cases.
Furthermore, as the State points out, the peer review
statute does not bar the use of evidence that is available from
an independent source. After Fairbanks Memorial Hospital limited
Grandstaffs privileges, the hospital was required by AS
08.64.336(b) to report that action to the State Medical Board.
Under AS 08.64.101, the State Medical Board has the
dual responsibilities of examining applicants for licensing and
imposing disciplinary sanctions. And the State Medical Board is
classified as a peer review organization under AS
18.23.070(5)(B). Therefore, the general provisions regarding
confidentiality and privilege of the records would apply. But,
as discussed above, under AS 18.23.030(d), if the Board suspends,
revokes, limits, or conditions a license, the information in a
report submitted to the Board and information gathered by the
Board in an investigation under AS 08.64.336 is subject to
discovery by a plaintiff in any case.
The Board received the report from the hospital
limiting Grandstaffs privileges. Grandstaff himself agreed to
release information to the DOL during its investigation on behalf
of the Board, including Dr. Dreiblatts report. The DOL also
obtained the records from Abbott Northwestern and the Sante
Center as part of its investigation. During the investigation,
Grandstaff spoke to an investigator from the DOL and admitted
various instances of sexual misconduct with patients. The Board
eventually received Grandstaffs agreement to surrender his
license in lieu of revocation or other action. To the extent
this information may have been protected by statute, the
investigation was apparently complete when Grandstaff reached an
agreement with the DOL to surrender his license. On the basis of
this agreement, the Board entered an order accepting the
agreement and confirming that Grandstaff was no longer licensed
to practice medicine in Alaska. This action was consistent with
the Boards powers to suspend, revoke, limit, or condition
Grandstaffs license such that any privilege covering Grandstaffs
admissions of sexual misconduct would apparently no longer apply
under AS 18.23.030(d).
Additionally, the State argued in the superior court
and here on appeal that the releases that Grandstaff supplied to
the DOL waived any claim of privilege that Grandstaff might
otherwise have asserted. The State maintained that under an
objective evaluation of the releases, Grandstaff authorized the
release to the Attorney Generals office, including the division
that prosecuted Grandstaff. Judge Beistline agreed with the
States analysis of the releases. While this may provide
additional authority for the admission of the items released, we
need not resolve this claim.
Grandstaff claims that Judge Beistline should have
conducted an evidentiary hearing to develop the factual
background for these claims. But for purposes of deciding
Grandstaffs claims, Judge Beistline stated that he accepted
Grandstaffs offers of proof regarding disputed factual issues.
Grandstaff has not shown any error.
Grandstaff argues in his reply brief that because his
participation in the peer review process was compelled, his
statements during peer review were not admissible under Garrity
v. New Jersey.66 Garrity and other police officers, who were
questioned under oath in a court-ordered investigation, were
warned that if they asserted their Fifth Amendment privileges,
they would be removed from their positions.67 The officers
testified and their testimony was used against them in a later
criminal trial.68 The Supreme Court viewed the question in
Garrity as whether a state can use the threat of discharge to
secure incriminatory evidence against an employee.69 But the
Fairbanks Memorial Hospital peer review process did not directly
imperil Grandstaffs license. Furthermore, the statute at issue
in Garrity mandated removal from office when an officeholder
declined, on Fifth Amendment grounds, to answer questions
relating to the office or employment. There is no similar
provision in the statutes or regulations for the State Medical
Board.
In State v. Rivers,70 we addressed a claim similar to
the one Grandstaff raises, and recognized the distinction between
a situation where a person who asserts the privilege will be
penalized for the mere act of asserting the privilege without
regard to any other information in the case, and a situation
where a person is free to assert the privilege but will then face
the risk that, based on the remaining evidence, the court or
administrative agency will decide the case against them.71 Here,
if Grandstaff had asserted the privilege against self-
incrimination in the peer review process, and had not offered any
explanation for his situation, he may have faced a negative
result. But nothing in the record establishes that Grandstaff
would have faced a negative result based soley on an invocation
of his privilege against self-incrimination.
We reject Grandstaffs claim that his admissions were
compelled by the peer review processes.
The issues surrounding Sergeant Geiers testimony
The State called Sergeant Geier, the chief
investigating officer in the case, to describe his role in the
investigation of Grandstaff. Sergeant Geier obtained Glass
warrants and search warrants as part of the investigation. At
trial, Sergeant Geier authenticated the tape recordings of
conversations between Grandstaff and S.Y. that were seized when
the Glass warrants were executed. The State also offered several
other exhibits during Sergeant Geiers testimony, including
medical records, photographs, hotel records, phone records, and
a pair of Grandstaffs underwear.
During cross-examination, Grandstaffs attorney asked
Sergeant Geier to characterize Grandstaffs statements during his
conversations with S.Y. He asked Sergeant Geiers opinion
regarding whether Grandstaff wanted to have the conversation with
S.Y., and asked Sergeant Geier to describe concerns Grandstaff
might have had when conversing with S.Y. Grandstaffs attorney
asked Sergeant Geier whether Grandstaff had made any admissions
in his first conversation with S.Y. Sergeant Geier responded
that the only real admission that Grandstaff made during the
first conversation was that Grandstaff and S.Y. knew each other,
but that the conversation revealed that there was apparently some
type of problem between them. The defense attorney asked
Sergeant Geier if he had heard any criminal admission in that
first conversation, which the defense attorney defined for
Sergeant Geier as anything that you as a police officer know is a
crime. Sergeant Geier responded, Off the top of my head, no.
The attorney then asked if there was even a hint of admitting
criminality in any way during the first conversation. Sergeant
Geier replied, None other what Ive already stated, sir.
Grandstaffs attorney also asked Sergeant Geier whether Grandstaff
had made any criminal admissions when S.Y. contacted him a third
time to execute the Glass warrant. Sergeant Geier responded that
Grandstaff had not.
On redirect, the prosecutor directed Sergeant Geier to
specific sections of the recordings. He asked Sergeant Geier
what significance he placed on Grandstaffs seeming concern about
being recorded, given the fact that Grandstaff had not yet been
approached by the police. Grandstaff objected, arguing that the
prosecutor was improperly seeking Sergeant Geiers opinion on
whether Grandstaff was guilty. The prosecutor told the court that
the purpose of the question was to demonstrate that Grandstaffs
statements reflected a concern that he might face prosecution,
and that in light of Grandstaffs cross-examination, he was
entitled to ask Sergeant Geier if that was how he characterized
Grandstaffs statements. Judge Beistline overruled Grandstaffs
objection that Sergeant Geiers statements constituted improper
opinion testimony.
Sergeant Geier then answered, Well, it was pretty
obvious to me he was concerned of the police learning that he may
have committed a crime, he had did some criminal wrongdoing, he
was worried if the police were going to find out about it and
possibly ... press charges against him.
The prosecutor then drew Sergeant Geiers attention to
the point in the recording where S.Y. asked Grandstaff if he was
having sex with anyone else. Grandstaff responded that he could
not comment on that. The prosecutor asked if Sergeant Geier, as
an experienced investigator and one who was in charge of the
case, had any reaction to Grandstaffs response. Sergeant Geier
replied, Well, its a very its not an outright admission of of a
crime, however, its a very incriminating statement.
Grandstaffs attorney then objected that this testimony
violated Grandstaffs right to remain silent. The defense
attorney asked Judge Beistline to stop the line of questioning
and instruct the jury to disregard any disparagement of the right
to remain silent. The prosecutor countered that Grandstaff did
not remain silent, and kept talking when he could have walked
away. Judge Beistline denied the defense request.
Thereafter, the prosecutor inquired as follows:
Prosecutor: Okay. And so the part that
I want you to focus on is where [S.Y.] says,
[]if you dont think someones recording this,
then [ ] theres something wrong with my head,
because you, you, you, you gave me Stadol and
Mepergan at the Westmark and you knew I was
an addict. What do you mean? You knew I
was. What were you trying to pull? What, I,
youve got to be thinking this is recorded.[]
Okay, as an experienced officer, and in
follow-up to counsels question about ...
whether you observed him admit specifically
to a crime, what is your reaction to this
particular passage?
Sergeant Geier: Well, again, his
response, after she is talking, is if you
read it in the context of a transcript, it
says, what, what do you want to know? He
doesnt deny that there was any contact at the
at the Westmark. What are you he doesnt
say, what are you talking about, Stadol and
Mepergan. Its a direct to me, its a direct
acknowledgment that in regards to the hotel
incident, the existence of Mepergan and
Stadol there. Just an innocent person would
deny the incident taking place and ask more
questions to, you know, what the heck are you
talking about.
Grandstaffs attorney renewed his objection to the
continued reference to the officers giving his opinion that if
someone is innocent, they will protest, because there is a right
of a defendant to simply say nothing and have his silence not
held against him. (During cross-examination of Sergeant Geier,
Grandstaff elicited testimony on this issue. He asked Sergeant
Geier to admit that it was generally a police officers philosophy
that if someone wont deny it, theyve got to be guilty of what
they didnt deny. Sergeant Geier responded that he believed that
it was normal for a person to deny a false accusation.)
Grandstaff asked first for a corrective instruction, then for a
mistrial, on the ground that the prosecutor was intentionally
disparaging a constitutional right.
The prosecutor responded that Grandstaff did not invoke
silence, but instead talked for eight minutes during the first
recorded conversation, and for forty-three minutes during the
second, and made admissions during the course of both
conversations. The prosecutor further argued that the questions
were proper to rehabilitate the witness after the cross-
examination questions impugned the competence of the
investigation and the value of any admissions. Judge Beistline
ruled that the door had been opened on cross-examination and the
questions were proper, and denied the motion for mistrial.
The prosecutor then asked Sergeant Geier to point out
the portions of the second recording with S.Y. that constituted
admissions by Grandstaff.
Judge Beistline later decided not to give a corrective
instruction on this point. He stated he would not instruct the
jury that Grandstaffs statements were or were not admissions,
andhe allowed the attorneys to argue this point to the jury. In
his closing argument, the prosecutor stated that the significance
of Grandstaffs failure to deny S.Y.s reference to their sexual
relationship was that an innocent person would say []what are you
talking about[?]. Further, the prosecutor noted that Grandstaff
doesnt deny the hotel incident. In turn, Grandstaffs attorney
minimized the significance of the tapes and argued that S.Y. had
her own reasons for engaging in the conversations, such as her
desire to bring a civil suit against Grandstaff.
Grandstaff argues on appeal that Sergeant Geiers
testimony violated his right to silence. It is well-established
that the prosecution cannot comment on the defendants decision to
remain silent when confronted by the police. In Dorman v. State,72
the supreme court held that it was plain error for the prosecutor
to ask the jury to infer guilt from the fact that the defendant
remained silent for the eight minutes between his arrest and the
time he was advised of his Miranda rights.73 In Silvernail v.
State,74 we noted that evidence of pre-arrest silence also may be
inadmissible, as both the innocent and the guilty may be
intimidated by the emotional and confusing circumstances of the
hostile and perhaps unfamiliar atmosphere of police
interrogation.75 We reversed Silvernails conviction because we
concluded it was plain error for the trial judge not to rule that
the probative value of Silvernails silence was outweighed by its
prejudicial impact.76 Similarly, in Hamilton v. State,77 testimony
that the defendant failed to express concern for anyone else when
he was arrested was objectionable and should not have been
admitted.78 In each of these cases, however, the defendant was
silent when confronted by the police.79 Here, S.Y. contacted
Grandstaff before the police approached him. More importantly,
Grandstaff was not silent, instead choosing to stay and talk with
S.Y. for eight and forty-three minutes in the first and second
recorded conversations. Grandstaffs right to silence was
therefore not implicated when he chose to talk with S.Y.
Next, Grandstaff argues that once his trial attorney
objected to the testimony on constitutional grounds, it was plain
error for the trial court to admit the evidence without weighing
its probative value against the danger of unfair prejudice.
In Silvernail, the defendant testified that he
participated in a kidnapping and murder under duress.80 On cross-
examination, the prosecutor asked Silvernail why he did not claim
duress when the police first contacted him.81 Silvernails
attorney objected on Fifth Amendment grounds, but the trial judge
allowed the testimony.82 On appeal, Silvernail argued that the
evidence should have been excluded under Alaska Rule of Evidence
403.83
In reversing Silvernails conviction, we noted the close
relationship between the constitutional prohibition against
evidence of an accuseds silence in the face of official
questioning and the low probative value of such evidence. Citing
Alaska caselaw expressing distrust of silence as probative
evidence of guilt, we ruled that the trial courts failure to
weigh the probative value of the evidence against its potential
for prejudicial harm was plain error.84
Grandstaffs situation differs from Silvernails in two
important respects. First, as discussed above, Grandstaff was
contacted by S.Y., not by the police. In Silvernail, we
expressly linked our analysis to the low probative value of
silence in the face of official accusation.85 Here, there was no
official accusation. Even though Grandstaff objected on the
ground that his right to silence was violated, that right was not
implicated because he did not face an accusation by the police.
Second, Silvernail argued on appeal that the evidence
should have been excluded because the probative value was
outweighed by the risk of prejudice.86 Grandstaff, in contrast,
does not argue that the probative value of Sergeant Geiers
testimony was outweighed by its potential for prejudice. At
most, he suggests that the risk of prejudice was increased
because Sergeant Geier was identified as the chief investigating
officer and sat with the prosecution throughout the trial.
Grandstaff also argues that his statements do not meet
the standard for an admission by silence as defined in Doisher v.
State.87 In Doisher, the court ruled that evidence of the
defendants purported admission by silence was prejudicial error;
the court noted that Doishers reluctance to engage in a
controversy with his excited and irrational wife could explain
his silence.88
Grandstaff argues that his reticence was equally
understandable, given S.Y.s claim that she was suicidal. The
problem with this argument, however, is that Doisher concerned
the applicability of a hearsay exception to admit an out-of-court
statement.89 Here, the trial court was faced with the propriety
of the investigating officers comment about an undisputedly
admissible out-of-court statement.
Furthermore, as we already noted above, Grandstaff
raised the issue of whether he had made any admissions during
cross-examination. Because Grandstaff raised this issue, the
State was entitled to address that point during redirect
examination. Grandstaff argues that the State should not
have been allowed to elicit Sergeant Geiers testimony that
Grandstaff demonstrated consciousness of guilt when, during
Grandstaffs conversations with S.Y., he expressed concern that
S.Y. might be surreptitiously recording the conversations, and
when he declined to answer S.Y.s question as to whether he was
having sex with any other woman.
Sergeant Geier was allowed to testify that, based on
Grandstaffs fears of being secretly recorded, it was pretty
obvious ... [that Grandstaff] was concerned [about] the police
learning that he may have committed a crime[;] he was worried
[that] the police were going to find out about it and ... press
charges against him. Sergeant Geier was also allowed to testify
that Grandstaffs refusal to say whether he was having sex with
someone besides S.Y. was very incriminating.
The State argues that this testimony was admissible
because, when Grandstaffs attorney cross-examined Sergeant Geier,
the defense attorney was able to get Sergeant Geier to concede
that Grandstaff had never admitted any criminal behavior during
his conversations with S.Y. The State suggests that, because
Grandstaff raised this issue, the prosecutor was entitled to
address this point during his redirect examination of Sergeant
Geier.
It is true that the prosecutor was entitled to address
this point. But the prosecutor was not entitled to address it
with inadmissible evidence.
When the prosecuting attorney elicited Sergeant Geiers
testimony about the significance of Grandstaffs fear of being
recorded, and the significance of Grandstaffs refusal to say
whether he was engaging in sexual relations with other women, the
prosecutor explicitly asked Sergeant Geier to express his expert
opinion as chief investigating officer [in this case, and] as an
experienced police officer. This was an improper use of expert
testimony.
The Alaska Supreme Court addressed a similar situation
in Kodiak v. Samaniego.90 Samaniego involved a civil lawsuit in
which the plaintiffs alleged that police officers had used
unlawful force against them.91 The trial judge prevented the City
of Kodiak from presenting an expert witness who would have
offered an opinion as to whether, under the facts of the case,
the officers use of force against the plaintiffs had been
appropriate.92
Alaska Rule of Evidence 702 states that expert
testimony may be admitted [i]f scientific, technical, or other
specialized knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue.93 This requirement
that the witnesss expertise will help the trier of fact means
that experts should not be allowed to stat[e] their own
conclusions on points that the jury is ... equally capable of
determining [for themselves].94
Thus, in Samaniego, the supreme court held that the
trial judge properly excluded this proposed expert testimony
because (1) it was the jurys job to assess the conflicting
evidence and determine the facts of the encounter between the
plaintiffs and the police, and (2) it was the trial judges job to
identify the applicable law governing the use of force, and to
instruct the jury on that law. The experts opinions on these
matters would not have appreciably assisted the jury.95
In Grandstaffs case, the prosecutor could certainly
argue to the jury that Grandstaffs fear of being recorded, and
his reticence to reveal his sexual relations with other women,
suggested a consciousness of guilt. But neither Sergeant Geiers
years of experience as a police officer, nor his role as the
chief investigator in this case, provides any reason to believe
that Sergeant Geier had special insight into the significance of
these matters beyond what the jurors could discern for
themselves. It was therefore error for the trial judge to allow
the State to elicit this testimony.
Nevertheless, we conclude that this error was harmless.
The prejudice of this testimony was the fact that the prosecutor
was attempting to bolster an argument about the significance of
Grandstaffs actions an argument that was otherwise proper by
showing that an expert criminal investigator had drawn this same
inference. In a close case, this kind of bolstering might have
had a significant effect on the jurys deliberations. But given
the length of Grandstaffs trial and volume of evidence presented,
we conclude that the error in eliciting Sergeant Geiers personal
opinion on these matters was harmless.96
Finally, Grandstaff argues that Sergeant Geiers
testimony violated the attorney-client privilege, because
Grandstaff could not explain why he answered S.Y. the way he did
without revealing confidential communications with counsel.
Grandstaff offers no authority to support this assertion.
Grandstaff also asserts, without explanation, that the testimony
violated his right to counsel. But Grandstaffs right to counsel
had not yet attached, as no formal charges were pending and the
case was still in its investigatory stages.97
We conclude that Judge Beistline did not abuse his
discretion by overruling Grandstaffs objections to Sergeant
Geiers testimony.98 We also conclude that Judge Beistline did not
abuse his discretion when he denied Grandstaffs motion for a
mistrial on the same grounds.99
We uphold the remainder of the superior
courts challenged evidentiary rulings
Grandstaff challenges a number of the trial courts
other evidentiary rulings. He argues that Dr. Dreiblatt should
not have been allowed to testify about Grandstaffs sexual
fantasies about other female patients. Grandstaff asserts that
this evidence was irrelevant and prejudicial, and states in his
reply brief that this evidence was similar to the character
evidence that was improperly admitted in Bingaman v. State.100
Grandstaff does not explain why the evidence was prejudicial or
improper, however.
In Stevens v. State,101 we ruled that testimony about the
defendants sexual fantasies was inadmissible character evidence
and should not have been admitted.102 We noted that the evidence
was not relevant to show proof of motive, intent, plan, or any
other reason acceptable under Evidence Rule 404(b), and its only
possible relevance was to show Stevenss propensity to commit a
sex crime.103 We nonetheless held that the error was harmless due
to the strength of the States case, the brevity of the challenged
evidence, and the fact that the prosecutor did not mention the
subject again.104
Here, the evidence was presented as part of testimony
about how Grandstaff chose his victims. Dr. Dreiblatt testified,
without objection from Grandstaff, that Grandstaff admitted that
he had sexual fantasies about S.Y. and S.P., and that he chose
addicts who were unhealthy and vulnerable for sexual
relationships. When Grandstaffs attorney objected to the
question about other female patients, the prosecutor stated that
the evidence was admissible to show Grandstaffs view of his
patient population. The court allowed only the one question and
answer. The prosecutor did not mention fantasies about other
patients again.
Grandstaff also challenges Dr. Dreiblatts testimony
about grooming. This argument seems to refer to Dr. Dreiblatts
testimony that Grandstaff actively sought addicts who were
unhealthy and vulnerable in order to initiate sexual
relationships. The prosecutor returned to this theme in his
closing, arguing that Grandstaffs manner of choosing his victims
was predatory conduct, similar to the predatory conduct of child
molesters. Though this is an inflammatory statement, Grandstaff
does not explain why he contends that it was unfairly
prejudicial. Grandstaff also has not shown where he objected to
this testimony during trial.
Dr. Dreiblatts testimony about Grandstaffs sexual
fantasies about other patients was arguably admissible under
Evidence Rule 404(b)(1). Furthermore, this portion of Dreiblatts
testimony was brief, and the prosecutor did not mention it again.
We conclude that any error in admitting this evidence was
harmless.
Grandstaff next argues that certain testimony from S.P.
was prejudicial and irrelevant. Because Grandstaff did not
object to this testimony during the trial, he must now show plain
error.105
S.P. testified that she did not go to the police to
accuse Grandstaff because she had been a victim of crime on two
previous occasions and had not been satisfied when she contacted
the authorities. She also testified that around the time of her
birthday in 1998, while she was under Grandstaffs care, she was
raped by her neighbor, but did not report the incident to police
because she was not satisfied with the response of the justice
system. She did, however, tell Grandstaff. And S.P. testified
that when she told Grandstaff about the rape, he put her hand on
his penis and told her she would feel better if she massaged it,
then wrote her a prescription for Xanax.
S.P.s testimony was relevant. S.P. testified that she
did not get justice in the past when she reported crimes in
response to the question of why she did not go to the police this
time. And S.P.s testimony about her neighbors sexual assault was
part of the factual background of a specific incident of sexual
contact with Grandstaff. And Grandstaffs prescription for Xanax
supported the States theory that Grandstaff provided drugs to
patients in return for sexual favors.
Grandstaff cites Worthy v. State106 for the proposition
that the prosecution may not introduce evidence that the victim
was raped previously in order to portray the defendant as a man
so bad that he raped someone he knew was particularly vulnerable
because she had just been raped by someone else.107 Grandstaff
misconstrues the issue in that case. In Worthy, the relevance
and admissibility of the previous sexual assault was not
disputed; the issue was whether Worthy could introduce evidence
that the previous sexual assault did not actually occur.108 The
trial courts refusal to admit such evidence was reversible error.109
S.P.s testimony that she had been raped previously was
properly admitted and was, therefore, not plain error.
Grandstaff argues that the evidence supporting the
sexual assault claims was weak, and that he was only convicted on
these counts because of improper character evidence that
portrayed him as a bad man. Grandstaff argues that the
prosecutor inappropriately furthered this idea in his closing
argument, when he argued that Grandstaff sexually assaulted S.Y.
at the Westmark Hotel:
Do you think in light of everything that
you know about this man, do you think that in
light of all the things that he has said to
Dr. Dreiblatt and on the wire, that hes the
kind of guy thats going to respect the
situation and say Im not going to take
advantage of her? No. Hes there, hes ready
to go, and he jumped on her bones.
Grandstaff relies on Bingaman, in which this court
stressed that a jury may not convict a defendant because it
believes he deserves to be punished for other bad acts.110 In
Bingaman, we ruled that the admission of evidence of
approximately sixty prior acts of unindicted misconduct was
reversible error.111 Grandstaffs current objection, in contrast,
refers to part of the prosecutors argument. The jury was
specifically instructed that the arguments of counsel are not
evidence. Grandstaff does not point to any evidence that might
have improperly swayed the jury to convict him for sexual assault
because they thought he was a bad man.
Grandstaff next argues that Judge Beistline erred in
admitting into evidence a photograph of Grandstaffs underwear.
When executing the search warrant for Grandstaffs residence,
Sergeant Geier seized a pair of Grandstaffs underwear. A
photograph of the underwear was admitted into evidence. S.P.
testified that Grandstaff wore underwear that resembled
racquetball or bicycle shorts, and were different colors, such as
tan, brown, or white. The underwear seized by Sergeant Geier was
similar to those described by S.P., but the underwear was blue.
Grandstaff argues that the photograph was prejudicial and
irrelevant because the underwear was not the same color as those
described by S.P., and because most men wear underwear. But
Judge Beistline ruled that the difference in color went to the
weight of the evidence, not to its admissibility. He agreed with
the prosecutor that the evidence tended to corroborate S.P.s
testimony. We conclude that this ruling was not an abuse of
discretion.
Grandstaff next argues that C.R.s testimony about how
Grandstaffs conduct had affected her was inflammatory and
irrelevant, and would have been more appropriate at sentencing.
Grandstaff does not discuss the factual basis of this claim and
provides no authority to support it.
The prosecutor asked C.R. at the close of her direct
examination if there was anything she wanted to say to
Grandstaff. Defense counsel objected, and the court sustained
the objection. The prosecutor rephrased the question, asking
C.R. what effect Grandstaffs conduct had had on her. Defense
counsel again objected on relevance grounds. While the judge
agreed that the question was not relevant to what happened on
particular dates, he allowed C.R. to answer. C.R. testified:
The results of being being Dr.
Grandstaffs patient, I have anxiety attacks,
depression, just like after I leave here
today, I will have to go lay down.
Depression, cant sleep, cant even go to
school. Cant concentrate. I its
indescribable. My my life is just upside
down, just because what this animal oh, he
the animal do[es] have a name Grandstaff
[has] done to me and my life.
Even if this testimony should not have been allowed,
any error was harmless considering the rest of C.R.s testimony.
C.R. testified, without objection, that Grandstaff knew of her
history of drug addiction and prostitution, that she felt he was
taking advantage of her and pulling her back into her old ways,
and that she suffered from depression and anxiety attacks as a
result of his conduct. C.R.s statement about the effect of
Grandstaffs conduct added little to this testimony. Furthermore,
this evidence tended to show reasons why C.R. might be biased
against Grandstaff.
Grandstaff next argues that the written agreement
limiting his hospital privileges at Fairbanks Memorial Hospital
and the agreement to voluntarily surrender his medical license,
both of which included admissions of sexual misconduct with
patients, were more prejudicial than probative and should not
have been admitted. Grandstaff argues that the exhibits proved
nothing more than the fact he had sex with his patients, which
was not disputed, and that there was a danger that the jury would
fail to distinguish between ethical and criminal misconduct.
The documents were relevant because they contained
Grandstaffs admissions that he had engaged in sexual contact with
his patients, which led to his discharge from his clinic, the
action on his hospital privileges at the hospital, and the
voluntary surrender of his medical license. As to the agreement
limiting Grandstaffs hospital privileges, the document was
admitted into evidence with substantial redactions. While defense
counsel objected to the admission of the document even in its
redacted form, the prosecutor agreed to redact everything to
which Grandstaffs attorney objected. Further, defense counsel
specifically distinguished between ethical and criminal
misconduct in his closing argument:
If youre asking me to say there was a
reason for the sexual contact, Im not going
to say that. Im not going to say that, but
theres a difference between a professional
whos doing something thats an improper sexual
contact and a sexual assault. Ones
unethical, itll get your license yanked; the
other one is criminal, itll get you in jail.
Under these circumstances, Judge Beistline did not abuse his
discretion in admitting the two documents. The significance of
the admissions contained in the documents was properly left to
the jury to decide.
Grandstaff next argues that a phone message was
improperly admitted into evidence. Rebecca Dean, an
administrator at Grandstaffs clinic, testified about a phone call
she received while working at the clinic. The phone call was
from a Fairbanks physician and involved allegations that
Grandstaff was sexually involved with a female patient. Dean
testified that she wrote notes memorializing the call on a phone
message slip. Over Grandstaffs objection, Judge Beistline
admitted the written phone message, which included the notes Dean
took when she spoke with the physician. Grandstaff argues that
the message slip was hearsay and challenges Judge Beistlines
ruling that it was admissible under the business records
exception to the hearsay rule.112
The handwritten note was offered to establish why the
clinic began to investigate Grandstaff. As such, it was not
hearsay, as it was not offered to prove the truth of the matter
asserted, that Grandstaff was sexually involved with a female
patient.113
Grandstaff also argues that the trial court should not
have admitted evidence that his clinic reimbursed funds to the
Medicaid provider for Grandstaffs services. Dean testified that
clinicians on the clinics investigative committee reviewed the
medical charts of S.Y. and S.P. and determined that some of the
services provided by Grandstaff lacked legitimate purpose. The
clinic then prepared refund checks for those services. Dean
testified that the refunds were not requested by Medicaid, but
were undertaken voluntarily to comply with federal billing
regulations.
Grandstaff argues that Deans testimony and the letter
sent to Medicaid providing notification of the refund were
hearsay because Dean had no personal knowledge of whether any
particular service lacked medical purpose. But Dean testified
repeatedly on cross-examination that the determinations of
medical purpose were made by the clinics physicians, and that as
a lay person without medical expertise, she had not been involved
in those decisions. Judge Beistline overruled the hearsay
objection at trial and admitted the document and the testimony
under the business records exception. Grandstaff has not
challenged that ruling on appeal.
Grandstaff argues that the probative value of the
evidence was outweighed by its prejudicial impact. He notes that
Medicaid fraud investigator Rebecca Starry testified that the
clinic conducted an unsolicited review of Grandstaffs patients
records, that she did not know the basis for the clinics
calculations, and that she could not answer what, if anything,
the refund proved. But Grandstaff did not argue at trial that
the evidence was more prejudicial than probative, so the issue
was not preserved.114 The argument is also without merit. Dean
testified that refunds were made because the committee believed
it was the appropriate diligent thing to do, because it was
unclear to the committee whether or not the billing was
appropriate. No one testified, and the State did not argue, that
the refunds accurately reflected the amount Medicaid was
overbilled. Judge Beistline offered to instruct the jury that
the fact that the clinic refunded the money billed for specific
services did not necessarily establish that those services were
without medical purpose, and that this decision was for the jury.
But Grandstaffs trial attorney did not request the instruction.
Even if this evidence was admitted improperly, any
error was harmless. As noted above, Dean testified that it was
unclear to the committee whether or not the billing for any
particular service was appropriate. While cross-examining Dean,
Grandstaffs trial attorney showed that many of the services for
which refunds were paid were not included in the theft counts.
The attorney repeated this point in closing, arguing that the
services for which the clinic refunded Medicaid were inconsistent
with the services that Dr. Parran determined lacked medical
purpose.
We uphold the superior courts denial of a mistrial
Grandstaff argues that Dr. Parran inappropriately
referred to sexual contact between Grandstaff and four patients
when only S.Y. and S.P. testified to Grandstaffs sexual
misconduct. Grandstaff contends that admission of evidence of
unindicted sexual misconduct is reversible error.115
On direct examination, the prosecutor asked Dr. Parran
a series of hypothetical questions about a physician having
sexual relations with four patients; Dr. Parran testified that
there would be no legitimate medical purpose for sexual relations
between a doctor and his patients. On cross-examination, defense
counsel asked Dr. Parran if it would have helped him to interview
any of these patients. Dr. Parran said no, because these are
four patients, all with well-documented histories of addiction,
all with evidence in their charts document[ing] that theyre out
of control intermittently with their use of of the prescribed
controlled drugs, and and all having had alleged advances or or
sexual relationships with the doctor.
Grandstaff moved for a mistrial, arguing that Dr.
Parran could not testify that Grandstaff had sex with four
patients when he was only charged with sexual misconduct with two
patients. The court denied the motion, finding that the comment
was a passing reference made as Dr. Parran explained the basis of
his conclusion that there was no medical purpose in Grandstaffs
treatment of these patients; Judge Beistline offered to give the
jury a limiting instruction, but Grandstaff declined the offer.
Further, Dr. Parran did not state that Grandstaff actually had
sexual relations with all four patients, but only that all four
claimed to have had sexual relationships with Grandstaff. And
with respect to E.S., the jury acquitted Grandstaff of all
charges relating to E.S. Under these circumstances, we conclude
that Judge Beistline did not abuse his discretion in denying
Grandstaffs motion for a mistrial.
The jury instructions regarding medical purpose
Grandstaff argues that there was a flaw in the jury
instructions relating to the charges of unlawful distribution of
controlled substances. The State charged that Grandstaff
unlawfully delivered controlled substances to the women in this
case by writing prescriptions for them when he knew that their
use of controlled substances would serve no medical purpose.116
Grandstaff argues that Jury Instruction 18 misstated
the law by defining an unlawful prescription as one without a
legitimate medical purpose. The instruction stated, in pertinent
part:
The defendant in this case was a
licensed physician during the time periods
alleged in the Indictment. As such, he was
permitted to treat patients and to cause the
delivery of controlled substances to them by
pharmacists, for treatment by means of
prescriptions, provided he issued the
prescriptions lawfully. The prescriptions in
this case were unlawfully issued if there did
not exist a legitimate medical purpose for
them.
A legitimate medical purpose in this
context was present if (1) the defendants
purpose in issuing the prescription(s) was
medical, (2) the prescription(s) was
reasonably necessary for treatment of the
patients illness or injury, and (3) the
prescription(s) was issued by the defendant
while acting in good faith within the usual
course of his professional practice and in
accordance with a standard of medical care
generally recognized and accepted within the
medical community.
The drug counts in Grandstaffs indictment were based on
AS 17.30.080, which makes it a crime to distribute scheduled
drugs other than for a medical purpose. Alaska Statute 17.30.080
provides, in pertinent part:
Unlawful administration, prescription,
and dispensation of controlled substances.
(a) A controlled substance classified under
federal law or in a schedule set out in AS
11.71.140 11.71.190 may not be administered,
prescribed, dispensed, or distributed other
than for a medical purpose.
(b) A person who violates (a) of this
section, or who otherwise manufactures,
distributes, dispenses, or conducts research
with a controlled substance in the state
without fully complying with 21 U.S.C. 811
830 (Controlled Substances Act), and
regulations adopted under those sections, is
guilty of misconduct involving a controlled
substance.
Grandstaff contends that the jury instructions relating
to these unlawful delivery counts allowed the jury to convict him
based merely on proof that he committed malpractice when he wrote
these prescriptions i.e., proof that, in retrospect, a
reasonable doctor in Grandstaffs situation would not have written
the prescriptions. Grandstaff further argues that the
instructions allowed the jury to convict him on proof that he had
some non-medical purpose for distributing the drugs in addition
to a proper medical purpose.
In the instruction defining the elements of the crime,
the jury was told that the State had to prove three things: (1)
that Grandstaff knowingly delivered controlled substances to the
women; (2) that his delivery of controlled substances had no
medical purpose; and (3) that Grandstaff recklessly disregarded
the fact that there was no medical purpose for the delivery.
Grandstaff does not challenge the wording of this
instruction. (In fact, this instruction used essentially the
same language that Grandstaff proposed.) However, Grandstaff
argues that there are substantial errors in the subsidiary
instructions relating to these drug-distribution charges.
Grandstaffs first argument centers on the purported
distinction between a medical purpose and a legitimate medical
purpose. As noted above, the elements instruction told the jury
that the State was obliged to prove that there was no medical
purpose for distributing the drugs to the women. However, an
accompanying instruction explained that Grandstaffs act of
writing prescriptions for the women was unlawful if there did not
exist a legitimate medical purpose for [the prescriptions].
This same accompanying instruction then stated that
prescriptions have a legitimate medical purpose only if (1) the
[doctors] purpose in issuing the prescription(s) was medical, (2)
the prescription(s) [were] reasonably necessary for treatment of
the patients illness or injury, and (3) the prescription(s)
[were] issued by the [doctor] while acting in good faith within
the usual course of ... professional practice and in accordance
with a standard of medical care generally recognized and adopted
within the medical community.
Grandstaff argues that, when these two jury
instructions are read together, the jurors would conclude that,
even if Grandstaff honestly believed that there was a medical
purpose for writing the prescriptions, Grandstaff should
nevertheless be convicted if the State proved that Grandstaffs
decision to write the prescriptions fell below the standard of
practice generally recognized and adopted within the medical
community, and that, viewed objectively and in retrospect, the
drugs were not reasonably necessary for treatment of the [womens
conditions].
If Grandstaffs analysis of the two jury instructions
were correct, his case would pose a significant question as to
whether he received due process of law. However, Grandstaffs
analysis is not correct.
It is true that the challenged instruction defines
medical purpose in terms of the standard of practice recognized
and accepted in the medical community. But this definition
relates only to the second of the three elements listed in the
elements instruction. As explained above, the elements
instruction conveyed that the State was required to prove not
only that there was no medical purpose for writing the
prescriptions, but also that Grandstaff recklessly disregarded
this fact.
In other words, the jurors were told that the State had
to prove either that Grandstaff knew that there was no medical
purpose for prescribing the drugs to the women, or at least that
Grandstaff was subjectively aware of, and consciously
disregarded, a substantial and unjustifiable risk that he was
committing malpractice when he wrote these prescriptions i.e.,
that his prescription of the drugs to the women fell below the
acceptable standard of practice within the medical community.117
Because the elements instruction required the State to
prove this culpable mental state, there was no danger that
Grandstaff would be convicted of felonies for honestly but
incompetently prescribing controlled substances.
Grandstaff also argues that the jury instructions
allowed the jury to convict him if he had some non-medical
purpose for writing the prescriptions, even if he also had a
proper medical purpose for doing so. Again, if Grandstaffs
analysis of the instructions were correct, this would raise
significant due process problems. Presumably doctors often have
two or more purposes for writing prescriptions. For instance, a
young doctor may prescribe a medication for completely valid
medical reasons, but the doctor may also hope that, by
prescribing a medication that will cure the patient or at least
ease the patients symptoms, the patient will be prompted to
recommend the young doctor to friends and family thus helping
the doctors practice grow. It would seem strange (not to say
unconscionable) to convict the doctor of a felony in such a
situation.
But the jury instructions did not say that Grandstaff
could be convicted if he had some purpose for writing the
prescriptions in addition to a valid medical purpose. Rather,
the elements instruction required the State to prove that there
was no valid medical purpose for writing the prescriptions and
that Grandstaff knew of, or was at least reckless concerning,
this circumstance. We therefore conclude that this challenge to
the jury instructions also has no merit.
As noted earlier, the statute in effect at the time of
Grandstaffs offense prohibited him from writing a prescription
for controlled substances for any reason other than for a medical
purpose. Grandstaff argues that the court erred by departing
from this statutory language and defining medical purpose as
legitimate medical purpose. He argues that a decision to write a
prescription could fall below the generally accepted standard of
care and still serve some medical purpose for instance, an
experimental, research, or other non-therapeutic purpose.
Grandstaffs argument seems to be premised on the
implicit assertion that the prescription of drugs for authorized
medical research or clinical trials does not qualify as a
prescription for a legitimate medical purpose. Grandstaff cites
no authority supporting this assertion, and we find the assertion
unconvincing. The prescription of controlled substances in the
course of authorized medical research and clinical trials appears
to fall squarely within the realm of legitimate medical purposes
and to meet the accepted standard of medical care.
Grandstaffs argument is also premised on the assertion
that there is a significant difference between a medical purpose
and a legitimate medical purpose. We believe that, in the
context of AS 17.30.080, these phrases are equivalent. It is
extremely unlikely that the legislature, in enacting this
statute, intended to exempt (that is, intended to endorse or
authorize) the writing of prescriptions for illegitimate medical
purposes.118
But even assuming that, in some contexts, there might
be a meaningful difference between a medical purpose and a
legitimate medical purpose, there was no error in this case.
Grandstaff did not argue at trial nor does he argue in his brief
to this court that he wrote the challenged prescriptions for a
non-conformist medical purpose that was not generally accepted by
the medical community. Rather, Grandstaff claimed that he wrote
the prescriptions for valid therapeutic reasons that the medical
community recognized as legitimate. He pointed to evidence that
other doctors prescribed the same or similar medications for the
conditions he was treating in his patients.
Having heard Grandstaffs evidence and argument, the
jury rejected this claim. And given this evidence and argument,
we conclude that the jurys decision would have been no different
if the trial judge had instructed the jury in the manner
Grandstaff requested.
The variance claim regarding the second-degree sexual
assault conviction
Grandstaff contends that there was a fatal variance
between the conduct he was convicted of in Count 68, the second-
degree sexual assault of S.P., and the charge in the indictment.
The State instructed the grand jury that although it
would hear testimony about multiple sexual encounters, the second-
degree sexual assault charged in Count 68 stemmed from the first
alleged nonconsensual sexual act involving S.P. that occurred in
an exam room at Grandstaffs clinic. S.P. testified at grand jury
that she started seeing Grandstaff in October or November of
1996; that the initial visits were characterized by a normal
doctor-patient relationship; and that this changed when he
fondled her breast, without her consent, some time in late 1996
or early 1997. When the grand jury returned the indictment,
Count 68 stated, That between the approximate dates of October
31, 1996 and March 31, 1997, at or near Fairbanks in the Fourth
Judicial District, State of Alaska, Stephen Grandstaff did
unlawfully and knowingly engage in sexual contact with S.P.
without her consent.
At trial, S.P. testified that Grandstaff first fondled
her breasts in late October or early November of 1996, and that
they began having intercourse in November or December of that
year. On redirect, she confirmed that the first incident
occurred on her third or fourth visit, sometime after her first
visit on October 31, 1996, and before she was diagnosed with
herpes on March 27, 1997.
Grandstaff argues that a variance occurred because S.P.
told the grand jury that Grandstaff first touched her
inappropriately in late 1996 or early 1997, and testified at
trial that the first incident occurred in late October or early
November of 1996. Because S.P. testified about more than one
sexual act, Grandstaff argues that he may have been convicted of
a different offense than the one in the indictment. The
prosecutor specified in his closing, however, that the sexual
assault occurred when Grandstaff touched her without her consent,
when he made his move on her.
Grandstaff relies on Simpson v. State,119 a case where
this court reversed Simpsons conviction for sexual abuse of a
minor because of a variance. The victim in Simpson described two
distinct incidents; trial testimony indicated that the first
incident was a touching, while the second incident was an
attempted touching.120 While the indictment specified the date of
the second incident, Simpson was convicted of the first incident.121
We stated that while an indictment is sufficient which charges a
specific incident, the precise date of which the witness is
uncertain, the witness must nevertheless have a specific incident
in mind.122 In reversing the conviction, we held that Simpson was
convicted of a different incident than the one specified in the
indictment.123
In Grandstaffs case, the indictment charges a specific
incident, the date of which was not precise. The State specified
to both the grand jury and the trial jury that the sexual assault
count was for the first time Grandstaff sexually contacted S.P.
without her consent.
A variance between the date specified in the indictment
and the date shown by the evidence at trial is not a material
defect unless the defendant can show he was actually prejudiced
in his ability to prepare or present his defense at trial.124
Grandstaff has alleged no such prejudice. We conclude that
Grandstaff has not shown a variance that requires reversal of the
conviction on this count.
Sufficient evidence was admitted to sustain the sexual
assault convictions
Grandstaff argues that the evidence admitted at trial
was not sufficient to sustain the convictions for Count 26, the
first-degree sexual assault of S.Y., and Count 68, the second-
degree sexual assault of S.P. Evidence is sufficient to support
a conviction when reasonable jurors could conclude that the
defendants guilt has been established beyond a reasonable doubt.125
When we review the sufficiency of the evidence supporting a
conviction, we view the evidence and the reasonable inferences
from the evidence in the light most favorable to the State.126
Grandstaff analyzes the evidence in the light most
favorable to himself by focusing on the testimony of the two
victims and attempting to impeach their testimony. He argues
that S.Y.s testimony is full of contradictions, and that S.P.s
uncertainty about the date of Grandstaffs first sexual contact
with her renders her memory too faulty to be reliable.
S.Y. testified that she passed out at the Westmark
Hotel after taking a combination of Stadol and Mepergan.
Although she told Grandstaff before she passed out that she did
not want to have sex, when she regained consciousness, she was
naked and Grandstaff was engaged in sexual intercourse with her.
Dr. Parran testified that the combination of drugs S.Y. ingested
would have made S.Y. very sleepy and sedated, as well as mentally
altered. S.Y.s mother testified that S.Y. called her that night,
and that her speech was slurred and incoherent. S.Y.s mother
also testified that Grandstaff called the next day, asked how
S.Y. was doing, and then hung up.
S.P. testified that on one of her first visits to
Grandstaff, when he was listening with a stethoscope on her
torso, he began to fondle her breasts. In addition, he kissed
her neck, her mouth, and her breasts. She asked him to stop, but
he continued.
Grandstaff argues that this evidence is insufficient to
support the convictions for sexual assault. This argument is
without merit because Grandstaff views the evidence in the light
most favorable to his argument, and not in the light most
favorable to sustaining the convictions. Grandstaffs argument
consists of reasons why the jury should not have believed S.Y.
and S.P. But after hearing the evidence, the jury found
Grandstaff guilty of the charges. We find that there was
sufficient evidence to support the convictions.
Grandstaffs attacks on his sentencing and his sentence
Judge Beistline imposed an 8-year term with 3 years
suspended for the first-degree sexual assault of S.Y. He imposed
a 7-year term with 3 years suspended for the second-degree sexual
assault of S.P. For each conviction for second-degree misconduct
involving a controlled substance, Judge Beistline imposed a 10-
year term with 5 years suspended, to be served concurrently. For
each conviction for fourth-degree misconduct involving a
controlled substance, Judge Beistline imposed a 3-year term with
1 year suspended, to be served concurrently. For each of the
three theft convictions, Judge Beistline imposed a 3-year term
with 1 year suspended, to be served concurrently. The composite
sentence was a 34-year term with 15 years suspended, a 19-year
term to serve. Grandstaff advances several arguments about his
sentencing and sentence.
At sentencing, the State called two other women who
were Grandstaffs former patients to testify. Their testimony
described misconduct on Grandstaffs part that was similar to the
misconduct for which the jury convicted him.
C.T. testified that she sought treatment from
Grandstaff for post-traumatic stress syndrome and Valium
addiction. At one point, Grandstaff conducted a pelvic exam, and
touched C.T. in a way that made her feel uncomfortable. When
asked on cross-examination if she believed Grandstaff was trying
to sexually assault her, C.T. replied, I think that Dr.
Grandstaff was was coming to that. I think that I was being
groomed for a sexual assault by Dr. Grandstaff. Grandstaff
argues that C.T.s use of the word groomed proves she was
obviously coached by the prosecution, and that the court should
have disregarded her testimony.
S.L. testified that she was hospitalized after she
overdosed on the medications prescribed by Grandstaff. When she
awoke in her hospital bed the next morning, though she was very
groggy ... and not quite awake, she felt as if she was being
touched between her legs. She was shocked to discover Grandstaff
sitting in her room with the door closed. Grandstaff contends
that S.L. did not present verified reliable evidence of a sexual
assault.
A trial judge may consider evidence of prior uncharged
misconduct at a defendants sentencing if the misconduct is
verified.127 Both C.T. and S.L. testified under oath, and both
were cross-examined by defense counsel. Judge Beistline did not
err when he considered their testimony during sentencing.128
In his reply brief, Grandstaff argues that Judge
Beistlines consideration of prior uncharged misconduct violates
Blakely v. Washington129 because the trial judge made this finding
and not a jury. Because this argument is first raised in
Grandstaffs reply brief, we will not address it in this appeal.130
We ruled in Walsh v. State131 that a defendant may proceed under
Criminal Rule 35(a) to raise a claim that a sentence is illegal
because of a violation of Blakely.132
Grandstaff argues that Judge Beistlines finding of
statutory aggravating factor AS 12.55.155(c)(5) (Grandstaff knew
or should have known that the victim was particularly vulnerable)
as to Count 26, the first-degree sexual assault of S.Y., was
contrary to AS 12.55.155(e). That statute provides that [i]f a
factor in aggravation is a necessary element of the present
offense ... that factor may not be used to aggravate the
presumptive term. Grandstaff bases his argument on Judge
Beistlines comment during sentencing that the victims
vulnerability is an important part of the underlying crime.
But Judge Beistlines comment regarding a circumstance
often present during a sexual assault does not alter the fact
that the victims vulnerability is not a necessary element of the
offense of first-degree sexual assault. To prove first-degree
sexual assault, the State must prove that the defendant knowingly
engaged in sexual penetration while recklessly disregarding the
victims lack of consent to that penetration.133 The victims
vulnerability is not a necessary element of first-degree sexual
assault, nor was it included in the jury instruction for this
count. Furthermore, even though Judge Beistline found
aggravating factor (c)(5) and the parties stipulated to
aggravating factor (c)(18)(B), Judge Beistline also found a
mitigating factor and imposed a mitigated sentence, 5 years to
serve with an additional 3 years suspended.
Grandstaff argues that it was an abuse of discretion
for Judge Beistline to impose a 7-year term with 3 years
suspended on Count 68, the second-degree sexual assault of S.P.
But Grandstaff does not cite any authority for this argument.
And it is not sufficient to note, as Grandstaff did, that the
sentence for this count was almost as harsh as the sentence
imposed for the first-degree sexual assault charge.
Ultimately, the issue we must consider when a defendant
is sentenced for several crimes is not the individual sentence on
each count. The starting point of the analysis in this
circumstance is the presumptive term for the defendants most
serious crime in this case, first-degree sexual assault, which
had an 8-year presumptive term. That term is a benchmark that is
not to be exceeded without good reason.134 Judge Beistline was
aware of this case law. And he concluded that in Grandstaffs
case, there were several good reasons to exceed that benchmark:
Grandstaffs many convictions, the breach of trust with his
patients, and the need to protect the public.
Next, Grandstaff complains that Judge Beistline
erroneously found that aggravating factor (c)(25) (Grandstaffs
convictions involved large quantities of a controlled substance)
applied to Grandstaffs convictions for misconduct involving a
controlled substance. Judge Beistline based this finding on the
large number of transactions, the cumulative amount of drugs, and
the extended period of time involved and also considering the
fact that defendant was prescribing the drugs in order to control
his patients and obtain sexual favors. For these same reasons,
he rejected Grandstaffs proposed mitigators, (d)(9) (Grandstaffs
conduct was the least serious within the definition of the
offense) and (d)(14) (Grandstaffs convictions involved small
quantities of a controlled substance).135
Grandstaff argues that, because each prescription or
delivery involved a small amount, the large quantity aggravating
factor was unjustified. But the question of whether the amount
of a controlled substance is large or small must ... be resolved
by the sentencing court as a factual matter, based on the
totality of the evidence in the case and on the courts
discretion, as informed by the totality of its experience.136
Judge Beistline analyzed each class of Grandstaffs controlled
substance convictions together and imposed concurrent terms for
each class. As the record reveals, there were a large number of
prescriptions and deliveries. And cumulatively, the amount of
drugs was large and the prescriptions and deliveries occurred
over a long time. Judge Beistline did not err when he found the
large quantity aggravating factor.
Grandstaff further argues that the court should have
found the least serious conduct mitigator, as the patients had
real medical conditions for which they sought drugs and received
drugs from other doctors. Again, Grandstaff offers no legal
authority in support of his position. Moreover, regardless of
the womens medical needs, Judge Beistline found that Grandstaff
prescribed the drugs in order to control his patients and obtain
sexual favors. And in each count, the jury found that there was
no medical purpose for the prescription or delivery of the
conrolled substances. These circumstances do not establish least
serious conduct as a matter of law.
Judge Beistline imposed 3 years imprisonment with 1
year suspended on each of the three second-degree theft counts
and imposed the theft terms concurrently. These theft counts
covered Medicaid funds expended for prescriptions and for
appointments with Grandstaff. Grandstaff argues that this
sentence was inappropriate for a first felony conviction, as the
presumptive term for a second felony offender is 2 years.
Grandstaff also contends that the sentence is excessive because
the amount involved was scarcely $5,000. Second-degree theft
involves property valued at $500 to $25,000, and the composite
total loss in this case was in excess of $5,000. But again, when
a defendant is sentenced for multiple convictions, this court
reviews the composite sentence as a whole.137 Reviewing
Grandstaffs sentence for the theft counts from this perspective,
the composite 3-year sentence with 1 year suspended for three
counts of second-degree theft is not excessive.
Finally, Grandstaff contends that his composite term is
excessive. He notes that under Farmer v. State,138 the sentencing
court must have good reason for exceeding the presumptive term
for the most serious offense.139 In this case, Grandstaffs most
serious offense is first-degree sexual assault, an unclassified
felony with a presumptive 8-year term.140 As we discussed above,
Judge Beistline gave several reasons for imposing a sentence
substantially longer than 8 years. He noted Grandstaffs many
convictions, his abuse of his patients trust, and the misuse of
his medical privileges to satisfy his personal needs.
When we review a composite sentence imposed for several
criminal convictions, we assess whether the defendants combined
sentence is clearly mistaken, given the whole of the defendants
conduct and history.141 Grandstaffs composite 19-year sentence is
a substantial period of imprisonment. But Grandstaff repeatedly
abused his duty of care to his patients and manipulated their
dependence on controlled substances for his personal sexual
satisfaction. He manipulated the Medicaid program to pay for the
victims office visits and prescriptions. Grandstaffs misconduct
spanned several years and involved multiple victims. Considering
all of Grandstaffs misconduct and history, we conclude that the
sentence imposed by Judge Beistline is not clearly mistaken.142
Conclusion
The judgment of the superior court is AFFIRMED.
_______________________________
1 See State v. Glass, 583 P.2d 872, 881 (Alaska 1978), on
rehg, 596 P.2d 10 (Alaska 1979) (holding that the Alaska
Constitution requires police to obtain judicial authorization
before secretly recording a persons private conversations).
2 AS 11.41.410(a)(1).
3 AS 11.41.420(a)(1).
4 AS 11.46.130(a)(1).
5 AS 11.71.020(a) and AS 17.30.080.
6 AS 11.71.040(a)(1) and AS 17.30.080.
7 597 P.2d 154, 164-66 (Alaska 1979).
8 State v. McDonald, 872 P.2d 627, 639 (Alaska App. 1994).
9 500 P.2d 238 (Alaska 1972).
10 Id. at 242 n.14 (citation omitted).
11 554 P.2d 460 (Alaska 1976).
12 Id. at 465 n.22.
13 See Sheldon v. State, 796 P.2d 831, 836-37 (Alaska App.
1990).
14 See Gaona v. State, 630 P.2d 534, 537 (Alaska App. 1981).
15 See Jerrel v. State, 851 P.2d 1365, 1372 (Alaska App. 1993).
16 See Sheldon, 796 P.2d at 834.
17 Pease v. State, 54 P.3d 316, 322 (Alaska App. 2002).
18 Id.
19 Id.
20 335 F.2d 987 (1964).
21 Id. at 989.
22 538 P.2d 1006 (Alaska 1975).
23 Nell v. State, 642 P.2d 1361, 1364 (Alaska App. 1982).
24 Id.
25 See id. at 1365.
26 See Carr v. State, 840 P.2d 1000, 1005 (Alaska App. 1992);
Thiel v. State, 762 P.2d 478, 482-83 (Alaska App. 1988),
abrogated on other grounds by Matthew v. State, 152 P.3d 469
(Alaska App. 2007).
27 See Thiel, 762 P.2d at 482-83.
28 Sergeant Geier testified on cross-examination that during
the first, eight-minute conversation, S.Y.s car was parked behind
Grandstaffs car, but he could not see whether or not she was
blocking him in. Grandstaffs assertion that S.Y. blocked him in
seems to refer to this conversation and not to the second, forty-
three minute conversation, recorded later on the same day.
29 See Collier v. Anchorage, 138 P.3d 719, 720 (Alaska App.
2006) (The right to counsel under the Fifth Amendment only arises
during custodial interrogation.).
30 998 P.2d 1040 (Alaska 2000).
31 See S.B. v. State, 614 P.2d 786 (Alaska 1980); Smith v.
State, 787 P.2d 1038 (Alaska App. 1990).
32 Beavers, 998 P.2d at 1048.
33 Alaska App. Memorandum Opinion and Judgment No. 2938 (June
29, 1994), 1994 WL 16196195.
34 Id. at 2, 1994 WL 16196195 at *1.
35 Id. at 12-13, 1994 WL 16196195 at *5.
36 Id. at 13, 1994 WL 16196195 at *5-6 (internal citations
omitted).
37 Beavers, 998 P.2d at 1042.
38 Id. at 1041.
39 See id. at 1046.
40 See State v. Malkin, 722 P.2d 943, 947 (Alaska 1986).
41 Katmailand, Inc. v. Lake and Peninsula Borough, 904 P.2d
397, 402 n.7 (Alaska 1995); Petersen v. Mutual Life Ins. Co. of
New York, 803 P.2d 406, 410 (Alaska 1990); Wren v. State, 577
P.2d 235, 237 n.2 (Alaska 1978).
42 925 P.2d 1057 (Alaska App. 1996).
43 Id. at 1064-66.
44 Id. at 1065.
45 Id. at 1066.
46 56 P.3d 675, 680 (Alaska App. 2002).
47 See State v. Rivers, 146 P.3d 999, 1002-03 (Alaska App.
2006).
48 See Beavers, 998 P.2d at 1044.
49 AS 18.23.040.
50 B. Abbott Goldberg, The Peer Review Privilege: A Law in
Search of a Valid Policy, 10 Am.J.L. & Med. 151, 154 (1984). See
also Susan O. Scheutzow & Sylvia Lynn Gillis, Confidentiality and
Privilege of Peer Review Information: More Imagined Than Real, 7
J.L. & Health 169, 182 (1992-93) (accord); People v. Superior
Court (Memorial Medical Center of Long Beach), 286 Cal. Rptr.
478, 483 (Cal. Ct. App. 1991) (noting that Californias peer
review privilege is an attempt to prevent a chilling effect on
the accurate evaluation of health care facilities which would
lead to a decline in the quality of health care).
51 AS 18.23.030(a).
52 Id.
53 2A Norman J. Singer, Statutes and Statutory Construction
46:05, at 154 (6th ed. 2000).
54 See H.B. 574 (1976).
55 Memo from Thomas L. Conley, Chair of the State Medical
Board, to Representative John Sund, sponsor of H.B. 70, on
proposed revisions to AS 08.64 (dated December 3, 1986)
(contained in House Judiciary Committee file on H.B. 70).
56 Ch. 87, 16, SLA 1987; see also ch. 48, 16, SLA 1983.
57 In his statement, Conley refers to the confidentiality
provisions in AS 18.23.020(d). AS 18.23.020 has no subsection
(d); nor, at the time, did AS 18.23.030. It appears therefore
that Conley misspoke, as the only subsection in former AS 18.23
that discussed whether peer review information was subject to
subpoena or discovery was AS 18.23.030(a).
58 Committee Minutes, House Judiciary Committee discussion of
H.B. 70, Log No. 335-380, and audio tape (March 5, 1987).
59 2B Norman J. Singer, Statutes and Statutory Construction
49:10, at 117-18 (6th ed. 2000).
60 Committee Minutes, House Judiciary Committee discussion of
H.B. 70, Log No. 503, and audio tape (March 5, 1987).
61 Handwritten letter from Conley to Representative Sund,
sponsor of H.B. 70 (dated March 5, 1987) (contained in House
Judiciary Committee file on H.B. 70).
62 AS 18.23.030(d); ch. 87, 19, SLA 1987 (emphasis added).
63 In re Lieberman, 646 N.W.2d 199 (Mich. Ct. App. 2002).
64 Id. at 201-02 (quoting Mich. Comp. Laws 333.21515 (1979)).
65 Russell v. Anchorage, 706 P.2d 687, 693 (Alaska App. 1985).
66 385 U.S. 493, 87 S. Ct. 616, 17 L. Ed. 2d 562 (1967).
67 Id., 385 U.S. at 494, 87 S. Ct. at 617.
68 Id., 385 U.S. at 495, 87 S. Ct. at 617-18.
69 Id., 385 U.S. at 499, 87 S. Ct. at 620.
70 146 P.3d 999 (Alaska App. 2006).
71 Id. at 1005.
72 622 P.2d 448 (Alaska 1981).
73 Id. at 456-57, 459.
74 777 P.2d 1169 (Alaska App. 1989).
75 Id. at 1176-77 (quoting United States v. Hale, 422 U.S. 171,
177, 95 S. Ct. 2133, 2137, 45 L. Ed. 2d 99 (1975)).
76 Id. at 1174.
77 59 P.3d 760 (Alaska App. 2002).
78 Id. at 768.
79 Dorman, 622 P.2d at 452; Silvernail, 777 P.2d at 1172;
Hamilton, 59 P.3d at 767.
80 Silvernail, 777 P.2d at 1171.
81 Id. at 1172.
82 Id. at 1173.
83 A.R.E. 403 provides: Although relevant, evidence may be
excluded if its probative value is outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.
84 Silvernail, 777 P.2d 1175-76.
85 Id. at 1174.
86 Id.
87 658 P.2d 119 (Alaska 1983).
88 Id. at 121-22.
89 See id. at 120.
90 83 P.3d 1077 (Alaska 2004).
91 Id. at 1081
92 Id.
93 A.R.E. 702 (emphasis added).
94 Samaniego, 83 P.3d at 1088 (original brackets omitted).
95 Id. at 1088-89.
96 See Love v. State, 457 P.2d 622, 629-31 (Alaska 1969).
97 See Carr, 840 P.2d at 1005; Thiel, 762 P.2d at 482-83.
98 See Hawley v. State, 614 P.2d 1349, 1361 (Alaska 1980).
99 See Hamilton, 59 P.3d at 769.
100 76 P.3d 398 (Alaska App. 2003).
101 748 P.2d 771 (Alaska App. 1988).
102 Id. at 774.
103 Id. A.R.E. 404(b)(1) provides: Evidence of other crimes,
wrongs, or acts is not admissible if the sole purpose for
offering the evidence is to prove the character of a person in
order to show that the person acted in conformity therewith. It
is, however, admissible for other purposes, including, but not
limited to, proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident.
104 Stevens, 748 P.2d at 775.
105 See Raphael v. State, 994 P.2d 1004, 1015 (Alaska 2000).
106 999 P.2d 771 (Alaska 2000).
107 Id. at 774.
108 Id. at 773.
109 Id. at 775.
110 Bingaman, 76 P.3d at 414-15.
111 Id. at 401-02.
112 See A.R.E. 803(6).
113 See A.R.E. 801(c).
114 See Groff v. Kohler, 922 P.2d 870, 875 (Alaska 1996).
115 See Haakanson v. State, 760 P.2d 1030, 1038 (Alaska App.
1988) (finding error in admission of evidence of sexual contact
with two victims not named in indictment). Grandstaff cites
three other cases from the 1980s in which the admission of
evidence of unindicted sexual misconduct was held to be error.
All three are superseded by A.R.E. 404(b)(2) or (3) and are no
longer good law.
116 See AS 17.30.080(a).
117 See AS 11.81.900(a)(3) (defines recklessly).
118 State v. Vakas, 744 P.2d 812, 815 (Kan. 1987) (Whether a
controlled substance is prescribed for a legitimate medical
purpose as opposed to a medical purpose is to create a
distinction without a difference.).
119 705 P.2d 1328 (Alaska App. 1985).
120 Id. at 1330.
121 Id.
122 Id. (quoting Covington v. State, 703 P.2d 436, 440 (Alaska
App. 1985)).
123 Id. at 1331.
124 Larkin v. State, 88 P.3d 153, 154 (Alaska App. 2004).
125 See, e.g., Dorman, 622 P.2d at 453; Deal v. State, 657 P.2d
404, 405 (Alaska App. 1983).
126 Dorman, 622 P.2d at 453.
127 See Nukapigak v. State, 562 P.2d 697, 701 (Alaska 1977),
affd on rehg, 576 P.2d 982, 984-85 (Alaska 1978).
128 See id.
129 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
130 See McCracken v. State, 914 P.2d 893, 897 n.1 (Alaska App.
1996).
131 134 P.3d 366 (Alaska App. 2006).
132 Id. at 373-74.
133 See Reynolds v. State, 664 P.2d 621, 623-25 (Alaska App.
1983). See also AS 11.41.410(a).
134 Farmer v. State, 746 P.2d 1300, 1301 (Alaska App. 1987).
135 AS 12.55.155(d)(9) and (14), respectively.
136 Knight v. State, 855 P.2d 1347, 1350 (Alaska App. 1993).
137 See Brown v. State, 12 P.3d 201, 210 (Alaska App. 2000).
138 746 P.2d 1300.
139 Id.
140 AS 12.55.125(i)(1)(A).
141 See Neal v. State, 628 P.2d 19, 21 & n.8 (Alaska 1981);
Comegys v. State, 747 P.2d 554, 558-59 (Alaska App. 1987).
142 See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974)
(holding that an appellate court is to affirm a sentence unless
the sentencing courts decision is clearly mistaken).
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