|
You can of the Alaska Court of Appeals opinions.
|
|
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
ANDREW C. MOFFITT,
Appellant, Court of Appeals No. A-9787
Trial Court No. 3PA-06-461 Cr
v.
STATE OF ALASKA, O P I N I O N
Appellee.
End of Caption No. 2215 May 22, 2009
Appeal from the Superior Court, Third Judi
cial District, Palmer, John Wolfe, Judge.
Appearances: Marjorie Allard, Assistant
Public Defender, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellant.
Nancy R. Simel, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Talis J. Colberg, Attorney
General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Bolger, Judges.
MANNHEIMER, Judge.
In October 2005, Andrew C. Moffitt was facing felony
charges in the Palmer superior court. On October 7th, he failed
to appear for a scheduled court proceeding in that felony
prosecution. Based on this conduct, he was indicted for felony
failure to appear at a judicial proceeding.1 Following a jury
trial, Moffitt was found guilty of this offense.
A few days after the jury returned its verdict, Moffitt
filed a motion asking the superior court to grant him a new
trial. In this motion, Moffitt argued that the prosecutors final
argument to the jury, coupled with the trial judges instructions
to the jury and the trial judges later response to a mid-
deliberation question posed by the jury, created a substantial
possibility that the jury convicted Moffitt even though they
believed that his failure to appear might have been inadvertent.
The superior court denied Moffitts motion for a new
trial. For the reasons explained here, we conclude that Moffitt
is correct: there is a substantial chance that the jury followed
a mistaken view of the law when they found him guilty of failing
to appear. We therefore conclude that the superior court abused
its discretion when the court denied Moffitts motion for a new
trial.
The culpable mental state that must be proved to
establish a defendants guilt of failure to appear
Under AS 12.30.060, a defendant facing
criminal charges commits the separate crime of failure
to appear if the defendant knowingly fails to appear
before a court or judicial officer as required.
This Court has interpreted and explained the
elements of this crime in two decisions: Hutchison v.
State, 27 P.3d 774 (Alaska App. | 2001 | ), and Jackson v. State, 85 P.3d 1042 (Alaska App. 2004 | ). | |
| In Hutchison, we were called upon to construe the pre-September 2000 version of the statute, which defined the crime as wilfully failing to appear (as opposed to the current version, which penalizes knowingly failing to appear | ).2 The defendant in Hutchison testified that, on the night before his scheduled omnibus hearing, he drank so much that he passed out and did not awaken until the next afternoon thus missing his court appearance. Based on this testimony, the trial judge (who was hearing the case without a jury | )3 declared that he ha[d] a reasonable doubt [whether] Mr. Hutchisons conscious goal was not to come to court that morning. Id. at 782. The question presented in Hutchisons appeal was whether this reasonable doubt concerning Hutchisons purpose (or, rather, his lack of conscious purpose | ) required the trial judge to acquit Hutchison. |
| We first surveyed the federal cases on this subject and concluded that, under federal law, a defendants failure to appear at a judicial proceeding will constitute the crime of failure to appear only if the defendants failure to appear was purposeful or deliberate or intentional (in the usual sense of this word, rather than under the technical definition of intentional codified in AS 11.81.900(a | )(1 | ) | ). Id. at 777. In other words, even though a defendant may have failed to appear as required, the defendant will not have acted [with the culpable mental state required for conviction] if the failure to appear was the result of mistake or inadvertence or good-faith but feckless efforts. Id. |
| We then examined Alaska case law on a related subject contempt of a court order and concluded that the Alaska law of contempt required proof of essentially the same culpable mental state. Id. at 779- 780. We noted, in particular, what the Alaska Supreme Court said in Continental Insurance Companies v. Bayless & Roberts, Inc., 548 P.2d 398, 407 (Alaska 1976 | ): for purposes of adjudicating a charge of criminal contempt, [a] willful failure to comply with [a court] order occurs when [the] failure is ... due ... to purposefulness, bad faith[,] or fault of [the] petitioner as distinguished from accidental, inadvertent[,] or negligent conduct. | ||
| Having surveyed these two lines of cases, we concluded in Hutchison that the crime of failure to appear codified in AS 12.30.060 requires proof of this same culpable mental state: | |||
| [A] defendant willfully fails to appear if, in the absence of some legally recognized justification or excuse, the defendant makes a deliberate decision to disobey a known obligation to appear in court (including instances of willful blindness, where the defendant engages in conduct designed to avoid notice of the court date | ). ... [T]he government need not prove that the defendant acted with the conscious aim or purpose of causing a particular result[, but] the government must prove ... that the defendants purpose was to disobey or disregard the courts order to appear. | ||
Hutchison, 27 P.3d at
780.
Having construed the statute in
this manner, we concluded that the trial
judge should have acquitted Hutchison of
failing to appear:
Based on [Hutchisons] testimony, [the
trial judge] declared that he ha[d] a
reasonable doubt [whether] Mr. Hutchisons
conscious goal was not to come to court that
morning. If Hutchison did not act with the
conscious purpose of avoiding his obligation
to appear, he did not act wilfully ... .
Therefore, based on [the trial judges]
evaluation of the evidence, Hutchison should
have been acquitted.
Hutchison, 27 P.3d at 782.
As noted above, our decision in
Hutchison dealt with the pre-September 2000
version of the failure to appear statute.
This former version of the statute defined
the offense in terms of willfully failing to
appear, whereas the current version of the
statute defines the offense in terms of
knowingly failing to appear. But as we
explained in Hutchison, given the definition
of knowingly codified in AS 11.81.900(a)(2),
the concept of willfully failing to appear is
essentially the same as the concept of
knowingly failing to appear with the
exception that there is a special clause in
the definition of knowingly which provides
that voluntary intoxication does not negate
this culpable mental state.4
Thus, our decision in Hutchison
established the rule that, to prove a knowing
failure to appear, the State must prove that
the defendant made a deliberate, conscious
decision not to come to court. The crime is
not proved if the defendants failure to
attend the judicial proceeding was a result
of mistake, inadvertence, or even negligence.
Three years after Hutchison, we
applied this same definition of knowingly in
our next decision dealing with the failure to
appear statute, Jackson v. State, 85 P.3d
1042 (Alaska App. 2004).
The precise issue presented in
Jackson was whether the State was required to
prove that the defendants conscious decision
not to appear in court was made on the very
day, and at the very time, of the defendants
scheduled court appearance. In other words,
was the State required to prove that the
defendant was consciously thinking about the
obligation to appear in court, and
consciously deciding not to go to court, at
the very time of their court date? Id. at
1043. We held that this was not required:
Jackson would be guilty of knowingly
failing to appear if he decided early on that
he would not attend his scheduled court
appearances, and he then dismissed the matter
from his mind. Jacksons conscious decision
not to attend court, combined with his
subsequent failure to appear on the two
specified days, would constitute a sufficient
concurrence of culpable mental state and
prohibited act or omission even if it were
true that, on the two scheduled days, Jackson
gave no conscious thought to his court
appearances.
Jackson, 85 P.3d at 1043-44.
But for present purposes, the
important part of our decision in Jackson is
our reiteration of what we said earlier, in
Hutchison, regarding what constitutes a
knowing failure to appear: The State is
required to prove that, at some point before
the scheduled court appearance, the defendant
made a conscious decision not to go to court
that the defendants failure to appear in
court was not the result of mistake,
inadvertence, or negligence. Here is our
discussion of this point in Jackson:
Jackson also argues that the jury may
have convicted him based solely on the
undisputed evidence that he was informed (at
his arraignment) of his two future court
dates [and that he thereafter failed to
appear]. But we do not read the jury
instructions to allow this.
As explained above, the jury was told
that Jackson could not be convicted unless
the jurors were convinced beyond a reasonable
doubt that Jacksons conduct (i.e., his
failure to appear) was knowing, and they were
further told that Jackson could not be
convicted unless the jurors found a joint
operation of culpable mental state and
prohibited conduct. Jackson presented the
defense that he made an honest mistake as to
the date of his first scheduled court
appearance and that, after he realized that
he had missed this first court appearance, he
honestly believed that his second court
appearance would be canceled and that he
would be notified of new court dates. If the
jury had accepted these assertions, they
would not have found that Jacksons [failure
to appear] was knowing as defined in the
instructions.
Jackson, 85 P.3d at 1044.
In other words, both Hutchison and
Jackson hold that the State is required to
prove that the defendant made a deliberate,
conscious decision not to attend court and
that an honest mistake about the date or time
of the court hearing is a defense to the
charge of failure to appear.
The evidence presented at Moffitts trial, the
summations of the parties, the mid-deliberation
proceedings, and Moffitts motion for a new trial
The ultimate question to be decided at
Moffitts trial was whether Moffitt knowingly
failed to appear for his scheduled court
appearance at 10:00 a.m. on October 7, 2005. The
States case consisted entirely of evidence that
Moffitt was apprised of this court date, and that
he thereafter failed to appear.
In the prosecutors opening statement, he told
the jury that the State would present evidence
that Moffitt was clearly informed of his October
7, 2005 court date, that Mr. Moffitt was not
present [for that court appearance], and that
[his] not being present then made him culpable.
The prosecutor then added:
This [case] will be very
straightforward: ... There was a [court]
date. The date was given [to Moffitt, as
evidenced by his] signatures. ... He was
told. He doesnt show up. And thats the
States case.
When Moffitts attorney responded
with the defense opening statement, the
defense attorney conceded that Moffitt missed
his October 7th court appearance. But the
defense attorney described how Moffitt called
the court later that day and made several
efforts to contact his attorney. The defense
attorney told the jury that the case hinged
on whether Moffitt acted knowingly when he
missed the court appearance.
In the States case-in-chief, the
prosecutor presented the testimony of two
in-court clerks. The first in-court clerk,
Rachel Rodriguez, testified that she was
present in court when Moffitt was informed
about the October 7th court date. The second
in-court clerk, Mary King, testified that she
was present in court on the morning of
October 7th when Moffitts case was called;
Moffitt did not appear and, as a
consequence, the court issued a bench warrant
for his arrest.
The prosecutor also presented the
testimony of a corrections officer, Christine
Jimenez, who testified that she was present
when Moffitt was released from jail (on bail)
on the afternoon of October 2, 2005, and that
she heard Moffitts bail bondsman explaining
to Moffitt that he had a court appearance
scheduled for October 7th.
The State also called Moffitts bail
bondsman, John Chapman. Chapman conceded
that he did not specifically remember writing
the bond for Moffitt, nor did he remember his
conversation with Moffitt at that time.
However, Chapman testified that whenever he
writes a bail bond for a defendant, he
informs the defendant of their next court
date (as well as any other court dates that
are listed in the defendants paperwork). In
Moffitts case, the paperwork showed that
Moffitt had a court appearance scheduled for
October 7, 2005 at 10:00 a.m..
The States final witness was
Assistant Public Defender Elizabeth Varela.
Varela testified that the Public Defender
Agency was initially appointed to represent
Moffitt in the underlying felony case (3PA-05-
2706 Cr), but that the Agency had a conflict
and was permitted to withdraw on October 7,
2005 (i.e., the date of Moffitts missed court
appearance). Varela testified that she was
present in court on that date, and that
Moffitt was not present.
Following Varelas testimony, the
prosecutor announced that the State rested.
The majority of the defense case
consisted of the testimony given by Moffitt
and his friend, Alicia Hensel.
Moffitt testified that he was
released from jail on October 2nd, and that
he faithfully attended his court appearance
on October 5th. With regard to the court
appearance that he missed two days later, on
October 7th, Moffitt explained that he was
messing around the house, and that in the mid-
afternoon he happened to look at his court
paperwork again and saw that he had another
appearance scheduled for that day.
Moffitt initially read the
paperwork as saying that his court appearance
was at 2:30 p.m. which gave him barely
enough time to get to the courthouse, so he
called the court to say that he might be a
few minutes late. But the clerk who answered
Moffitts call told him, Youre ... more than a
couple minutes late; youre four hours late.
When Moffitt asked the clerk what he should
do, the clerk answered, Youve got a bench
warrant; theres nothing you can do. The
clerk then told him, Call your lawyer.
Moffitt asked the clerk to tell him
who his lawyer was. The clerk said that she
did not know, but she advised Moffitt to
contact the Public Defender Agency. Moffitt
called the Public Defender, but they told him
that they had stopped representing him
earlier that day, and they advised him to
call the Office of Public Advocacy. When
Moffitt contacted the Office of Public
Advocacy, they told him that John Pharr was
his contract lawyer. So Moffitt next called
Pharrs office but no one answered.
Moffitts account of these events
was corroborated by the testimony of Alicia
Hensel. Hensel testified that Moffitt was
staying with her following his release from
jail on October 2nd. Hensel further
testified that, on the afternoon of October
7th, Moffitt was getting ready to go to court
when he looked at his paperwork and panicked
because the ... time was different than what
he thought. According to Hensel, Moffitt
then made several phone calls, trying to ...
get it taken care of, so he didnt get in
trouble ... . He wanted to ... fix any
problem right away.
Following Hensels testimony, both
sides rested.
The opening portion of the
prosecutors summation to the jury was
unobjectionable although the prosecutor did
mischaracterize the nature of Moffitts
defense. The prosecutor told the jury that
Moffitts defense was, that he forgot,
misunderstood, didnt sign the documents,
didnt know what he was signing, didnt get the
paperwork. The prosecutor then declared that
all of this was a little hard to believe.
The prosecutor pointed out that
Moffitt undisputedly received notice of the
October 7th court date. The prosecutor then
argued that this court date was so important
that Moffitt was unlikely to have forgotten
it: This [was]nt traffic court. This
[was]nt a dog bite case. This [was] a felony
matter. The prosecutor then added:
I could maybe buy [Moffitts] argument
[if] he shows up the next day [or] later on
in the afternoon [saying], Oh, wait. Dont
put that bench warrant out. Im here; Im
here. ... Please let me do something [to
remedy the situation]. But as we see, on
[October] 11th he still isnt here, because
... a bench warrant [is issued that day].
Okay? So [on] the 11th, he still isnt here.
[Thats] five days.
In other words, the prosecutor
argued that the jury should not believe
Moffitts assertion that he innocently forgot
about the court date, because this assertion
was belied by Moffitts behavior after he
missed the court date in particular,
Moffitts failure to take any action to
rectify matters.
This argument was entirely proper.
And if the prosecutor had confined his
argument to the assertion that Moffitts
behavior after October 7th was circumstantial
evidence that Moffitt acted knowingly
circumstantial evidence that Moffitt made a
deliberate, conscious decision not to come to
court then there would be no problem in this
case.
But after the prosecutor sat down,
Moffitts defense attorney directly attacked
the States assertion that Moffitt acted
knowingly when he missed the court date. The
defense attorney argued that, given Moffitts
and Hensels testimony i.e., the testimony
that Moffitt made an innocent mistake about
the court date, and that Moffitt then engaged
in frantic efforts to take care of the
problem that same afternoon the State had
failed to prove beyond a reasonable doubt
that Moffitt acted knowingly when he failed
to appear for the October 7th court date.
The defense attorney read the legal
definition of knowingly to the jury, and then
he said:
Now, thats kind of a round-about way of
saying, What was on [Moffitts] mind on the
morning of October 7, 2005? Was he aware
that he [was] missing a court date? Is he
saying, Oh, its ten oclock. I dont really
feel like going to court. To heck with it.
Im not going to court dont feel like it. Is
that the way the testimony came out? Of
course not.
The defense attorney conceded that,
after Moffitt learned that he had missed his
court appearance and that a bench warrant had
been issued for his arrest, Moffitt did not
do the honorable thing and surrender himself.
Instead, Moffitt tried to avoid arrest and,
when he was later arrested, he gave a false
name. (He identified himself as Hensels
brother.) But the defense attorney urged
the jury not to convict Moffitt just because
he showed human weakness and did not want to
go back to jail for innocently missing the
court date.
The defense attorney then
concluded:
The State never put on any evidence of
why [Moffitt] didnt appear. [The State has]
tried to draw some inferences from what he
did later, ... but I think what he did later
is as rational as what anybody would do. I
mean, weve got 15 people in [this] room; you
would see 15 different reactions to that
situation. And Mr. Moffitt is well within
the range of what anybody would do in that
situation.
So, ladies and gentlemen, ... the State
has not proven its case, and wed ask for an
acquittal.
The problem in this case arises
from the fact that, after the defense
attorney sat down, the prosecutor (in
rebuttal) began to misstate the law relating
to the culpable mental state that the State
had to prove. In essence, the prosecutor
told the jurors that it did not matter if
Moffitt had innocently forgotten about his
court appearance, or if he had made a mistake
about the scheduled hour of that appearance.
The prosecutor suggested that, under the
legal definition of knowingly, all the State
had to prove was that Moffitt received notice
of the date and time of his court appearance
and that even if Moffitt honestly forgot
about the appearance or made a mistake about
the time, [that] doesnt ... negat[e] the fact
that he did know:
[The defense attorneys contention about
Moffitts] rationality, his mental state on
the day of [the court appearance], is [a]
mischaracterization of the law ... .
When you read through the knowingly
instruction that you[ve been] given, youre
going to see that [Moffitt] has to have
knowledge of the existence of a particular
fact. [This] fact is that he had a court
date. That knowledge is established if a
person is aware of [a] substantial
probability of the existence of that fact.
[Moffitt] admitted it. He knew it. Its not,
Hey, I overslept, and therefore I cant be
held accountable, or Im hung over, or I was
with some girl, or whatever excuse you come
up with, and [then] you get to count that as
Oh, I didnt know. He did know and you dont
get to do that.
And ... you dont have to worry about his
mental state on [the day of the court
appearance], at that very moment. Well, I
didnt mean to miss it, or I didnt know, or I
forgot that doesnt count for negating the
fact that he did know. And youll get that
instruction. ... [I]ts not an easy
instruction [to understand], okay? And Im
not ... discounting your intelligence, but
take it and read the knowingly [definition].
Itll be very clear to you. [Moffitt] knew.
The State proved that he knew.
The prosecutor then addressed the
defense evidence pertaining to the telephone
calls that Moffitt purportedly made on the
afternoon of October 7th, after he realized
that he had missed his court appearance and
that a bench warrant had been issued for his
arrest:
[Y]ou know what? This doesnt matter.
It doesnt matter. ... [That evidence]
doesnt say, I hereby give Mr. Moffitt a free
pass for not showing up to court. ... This
isnt a free pass. This isnt a note from Mom
that says, Yeah, the dog ate my homework;
please excuse me. That doesnt work, okay?
. . .
Ladies and gentlemen, ... [t]ake a look
at the documents. You have the facts. ...
Did he know he had a [court] date, an
appointment with a superior court judge in a
felony matter? And did he miss it? No
excuses. Did he miss it? The answer is,
Yes, he missed it. He missed it, and he lied
to the cops about his name [when they came to
arrest him] because he didnt want to get
caught. Thats his mental state. He knew.
He was avoiding the consequences. And hes
guilty. Thank you.
The problem with the prosecutors
rebuttal argument is that, depending on how
these remarks are read, the prosecutor either
strongly suggested or else directly asserted
that the jury could properly convict Moffitt
even if the jury believed that Moffitt had
innocently or negligently forgotten about, or
mis-remembered, the date or time of his court
appearance. The prosecutor essentially told
the jury that, under the applicable
definition of knowingly, it was sufficient
for the State to prove (1) that Moffitt knew
about the scheduled court date and (2) that
Moffitt failed to attend court on the
scheduled date and time even if the State
failed to prove that Moffitt made a
deliberate, conscious decision not to come to
court.
Thus, the defense attorney and the
prosecutor offered the jury two competing
views of what constitutes a knowing failure
to appear. The defense attorney argued
(consistent with our decisions in Hutchison
and Jackson) that, to prove a knowing failure
to appear, the State was required to prove
that Moffitts failure to appear was not the
result of an innocent or negligent mistake,
but rather the result of a deliberate,
conscious decision. The prosecutor, on the
other hand, argued in rebuttal that a knowing
failure to appear meant that Moffitt knew
about the court date and then failed to
appear regardless of whatever excuse Moffitt
might offer: Did he know he had a [court]
date, an appointment with a superior court
judge in a felony matter? And did he miss
it? No excuses. Did he miss it? The answer
is, Yes, he missed it.
This problem was exacerbated by
Jury Instruction No. 5, the jury instruction
on the definition of knowingly. At first
blush, our assertion that Jury Instruction
No. 5 made things worse may seem paradoxical
because the instruction defined the concept
of knowingly using language that faithfully
tracked the statutory definition of knowingly
codified in AS 11.81.900(a)(2). Jury
Instruction No. 5 stated:
A person acts knowingly with respect to
conduct or to a circumstance described by the
law when the person is aware that the conduct
is of that nature. When knowledge of the
existence of a particular fact must be proved
by the state, that knowledge is established
if a person is aware of a substantial
probability of the existence of the fact,
unless the person actually believes that it
does not exist.
(The one significant departure from
the statutory definition of knowingly occurs
at the end of the first sentence of this jury
instruction. The statutory definition
contains the additional italicized language:
... when the person is aware that the conduct
is of that nature or that the circumstance
exists.)
Despite the fact that Jury
Instruction No. 5 tracked the language of the
statutory definition of knowingly, the
wording of the instruction was crucially
ambiguous in the context of Moffitts case.
This is because, under the Alaska Criminal
Code, the culpable mental state of knowingly
describes two concepts.
With respect to conduct, the word
knowingly means that a person acted with
awareness of the nature of their conduct.
With respect to surrounding circumstances,
the word knowingly means that a person was
aware that the circumstance existed, or was
aware of a substantial probability that the
circumstance existed (unless the person
actually believed that, despite this
probability, the circumstance did not in fact
exist).
In Moffitts case, there was no
dispute concerning his awareness of the
circumstance that he had a court appearance
scheduled for the morning of October 7, 2005.
Moffitt affirmatively conceded that he was
notified of this court appearance. The sole
dispute at Moffitts trial was whether his
conduct his failure to attend that scheduled
court date was knowing. Moffitt argued that
his failure to attend the court hearing was
the result of an innocent or negligent
mistake rather than a deliberate, conscious
decision not to attend. Under our decisions
in Hutchison and Jackson, this was a valid
defense even though the prosecutor, in his
rebuttal argument, suggested that this was
not a defense.
The problem with Jury Instruction
No. 5 is that the majority of the instruction
(the instructions lengthy second sentence)
focused on Moffitts knowledge of the
surrounding circumstances. As we have just
explained, this was a non-issue in Moffitts
case; he conceded his awareness of the
operative fact that he had a court date on
October 7th.
But because of the way the
prosecutor argued Moffitts case in rebuttal,
this otherwise irrelevant portion of the
instruction became important because it
could be viewed as supporting the prosecutors
mistaken argument that Moffitts knowledge of
the scheduled court date, coupled with
Moffitts ensuing failure to attend court on
that date, was sufficient to establish that
he acted knowingly.
This problem the contextual
ambiguity of Jury Instruction No. 5 was
brought to the attention of the trial judge
and the parties when, during the jurys
deliberations, the jury sent the following
note to the judge:
Does knowingly mean knowledge of the
court date or does knowingly mean he was
unaware of the date of the appearance on the
day of the appearance[?]
Is knowingly similar to premeditation?
We have different interpretations of
instruction # 5.
(The underlining is present in the original.)
Looking back on this jury inquiry
in hindsight, it appears that the jurys
second question Is knowingly similar to
premeditation? went to the very heart of the
matter.
True, as a matter of technical law,
the concept of premeditation had nothing to
do with Moffitts guilt or innocence. But it
was not legal technicians who were asking the
question. Rather, the question was posed by
lay people, and they wanted to know whether
the concept of knowingly was similar to (not
precisely the same as) the concept of
premeditation. Given the circumstances, it
appears that the jurors were asking the same
question that this Court addressed (and
answered) in Hutchison and Jackson. A
straightforward answer to the jurors question
would have been: To prove that Moffitt
knowingly failed to appear, the State was
required to prove that, at some point prior
to his scheduled court appearance, Moffitt
made a deliberate, conscious decision not to
come to court.
But instead of directly answering
the jurors question, the trial judge decided
to re-issue Jury Instruction No. 5 this time
inserting the language that the judge had
earlier omitted at the end of the first
sentence: ... when the person is aware that
the conduct is of that nature or that the
circumstance exists. Moreover, the judge
told the attorneys that he intended to read
this italicized language to the jury in a
manner that highlighted this change. Given
the situation, this supplemental wording only
heightened the ambiguity of the instruction
and increased the possibility that the jury
would follow an erroneous legal theory when
assessing Moffitts guilt or innocence.
Moffitts attorney immediately
objected to the trial judges proposed action.
The defense attorney protested that the way
the Court has written it, [the revised
instruction] virtually guarantees conviction.
The defense attorneys objection prompted the
following colloquy:
Defense Attorney: [The prosecutor]
argued [to the jury] that it didnt matter
what [Moffitt] thought on the day in question
[that] what mattered was that he was given
notice of the [court appearance] four days
before ... .
. . .
Prosecutor: [To justify a conviction,
Moffitt] needs to know that there is a court
date, and the nature [of his conduct] is that
he was [required] to appear. I think this
description [of the law] is accurate.
[Moffitt] doesnt have to have one happening
simultaneous. [sic] He has to know that he
has a court date, and he has to not appear.
Thats it.
To resolve this conflict, the trial
judge suggested that the jury also receive a
second supplemental instruction this one on
the laws requirement of a joint operation of
unlawful conduct and culpable mental state:
For the crime I have instructed you
on[,] there must exist a joint operation of
an act or conduct and a culpable mental
state. To constitute a culpable mental
state[,] it is not necessary that there
exists an intent to violate the law. When a
person knowingly does that which the law
declares to be a crime, he is acting with a
culpable mental state, even though he may not
know that his action or conduct is unlawful.
Although the defense attorney
announced at the time that he was satisfied
with this additional instruction, this
additional instruction just made things
worse. The last two sentences of this
instruction appear to fully support the
prosecutors argument that it did not matter
whether Moffitt ever made a deliberate,
conscious decision not to attend his court
hearing.
Thirty minutes after the court sent
these two supplemental instructions to the
jury (the revised version of Instruction No.
5 and the new instruction we just quoted),
the jurors returned to court and announced
that they had found Moffitt guilty of failure
to appear.
A few days later, Moffitts attorney
filed a motion for a new trial. In that
motion, the defense attorney clearly
identified the problem with the prosecutors
rebuttal summation to the jury. The defense
attorney pointed out that the prosecutor had,
in violation of this Courts decision in
Jackson, argued that Mr. Moffitts asserted
defense [i.e., honest mistake or negligent
failure to remember] was legally irrelevant
so long as the jurors found that Mr. Moffitt
had received advance notice of the ... court
dates.
In its response to Moffitts motion
for a new trial, the State did not argue that
the prosecutors statement of the law was
correct. Rather, the State argued only that
it was too late for Moffitt to object to the
prosecutors argument that Moffitt had waived
this claim of error by failing to raise a
contemporaneous objection to the prosecutors
rebuttal. The State also noted that the
courts instructions to the jury regarding the
issue of culpable mental state were correct
statements of the law.
The superior court denied Moffitts
motion for a new trial in a written order.
In that order, the trial judge stated that he
had reviewed the audio record of the
prosecutors rebuttal summation, and he
disagreed with the defense attorneys
characterization of the prosecutors argument.
The trial judge conceded that at one point
the prosecutor said something which could be
interpreted the way defense counsel describes
it, but the trial judge concluded that the
prosecutors remarks could also be interpreted
in other ways. The judge then declared that
the prosecutors argument does not appear to
be a clear argument that the guilty act and
guilty mind do not need to coincide as
discussed in Jackson v. State. The judge
concluded by stating, [T]he prosecutors
argument was at most somewhat confusing.
[There was] no prosecutorial misconduct, much
less plain error justifying a new trial.
Why we conclude that the superior court should have
granted Moffitts motion for a new trial
Alaska Criminal Rule 33(a) authorizes the
superior court to grant a new trial to a defendant if a
new trial is required in the interest of justice. When
an appellate court reviews a trial courts decision to
grant or deny a motion for a new trial, we employ an
abuse of discretion standard of review.5
We conclude that an abuse of discretion
occurred here because the record of Moffitts trial
reveals a substantial possibility that the jury
convicted Moffitt under an incorrect legal theory.
Specifically, there is a substantial chance that the
jurors voted to convict Moffitt even though they
thought there was a reasonable possibility that Moffitt
missed his October 7th court appearance because of an
innocent mistake, or because of negligence, rather than
as a result of a deliberate, conscious decision not to
attend court.
We disagree with the trial judges
interpretation of the prosecutors summation to the
jury. The prosecutor did not simply make an isolated
ambiguous statement that might have been interpreted
the wrong way. Instead, during the rebuttal portion of
his summation, the prosecutor responded to Moffitts
asserted defense (honest or negligent mistake) by
telling the jury that Moffitts excuses made no
difference that Moffitt acted knowingly within the
meaning of the jury instructions if Moffitt received
notification of his October 7th court appearance and if
he subsequently failed to come to court.
The jurys mid-deliberation questions confirm
that they understood the prosecutor to be arguing this,
and that they wanted the court to help them decide
whether the prosecutors argument was consistent with
the law specifically, consistent with the definition
of knowingly contained in Jury Instruction No. 5.
It is true, as the State pointed out in its
opposition to Moffitts motion for a new trial, and as
the superior court pointed out in its order denying the
new trial, that all of the courts instructions to the
jury were, technically speaking, correct statements of
the law. But despite the technical correctness of
these instructions, there is a substantial chance that
they misled the jury in the specific context of this
case.
The jury was asking whether Moffitts offered
defense was, in fact, a valid defense to the charge or
whether, as the prosecutor argued during his summation,
this offered defense was irrelevant. The revised
version of Instruction No. 5 that the court offered in
response to the jurys questions only heightened the
ambiguity of the original version of the instruction.
And the supplemental instruction dealing with the
interaction of conduct and culpable mental state
(although, again, technically correct) was worded in
such a way as to suggest that the prosecutors erroneous
view of the law was in fact correct.
We note, in particular, the final two
sentences of the supplemental instruction (Instruction
No. 19), which stated in part: it is not necessary
that there exist[] an intent to violate the law, and
that [w]hen a person knowingly does that which the law
declares to be a crime, he is acting with a culpable
mental state, even though he may not know that his
action or conduct is unlawful. Trained lawyers would
understand that these pronouncements were basically
irrelevant to the question that the jurors had posed.
But the jurors in Moffitts case might easily have
seized on these statements as constituting the courts
answer to their questions about the validity of
Moffitts asserted defense and they could have
construed these statements as a judicial pronouncement
that Moffitts asserted defense was no defense at all.
Moffitts case presents a situation where one
or two sentences of plain English would have served far
better than the several paragraphs of technically
accurate but misleading legal principles that the
jury received. The answer to the jurys underlying
question is supplied by our decisions in Hutchison and
Jackson: A person is guilty of knowingly failing to
appear if they fail to attend their court proceeding as
a result of a deliberate, conscious decision not to
come to court if they act with the conscious purpose
of avoiding [the] obligation to appear. Hutchison, 27
P.3d at 782. A person is not guilty if their failure
to appear is the result of mistake, inadvertence, or
negligence.
Because the record reveals a significant
possibility that the jurors misunderstood this crucial
principle of law, and that they convicted Moffitt in
violation of this principle, we REVERSE the judgement
of the superior court. Moffitt is entitled to a new
trial.
_______________________________
1 AS 12.30.060(1).
2 Hutchison, 27 P.3d at 775-76.
3 Id. at 776.
4Hutchison, 27 P.3d at 780.
5 Nygren v. State, 616 P.2d 20, 22 (Alaska 1980); Salinas v.
State, 373 P.2d 512, 513 (Alaska 1962).
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
