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303 K Street, Anchorage, Alaska 99501
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| PATRICK L. SHORTY, | ) |
| ) Court of Appeals No. A-9942 | |
| Appellant, | ) Trial Court No. 3AN-03-7796 CR |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) |
| ) No. 2228 August 7, 2009 | |
Appeal from the
Superior Court, Third Judicial District,
Anchorage, Michael L. Wolverton, Judge.
Appearances: Doug Miller, Assistant Public
Advocate, and Joshua Fink and Rachel Levitt,
Public Advocates, Anchorage, for the
Appellant. Tamara E. de Lucia and Kenneth
M. Rosenstein, Assistant Attorneys 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.
BOLGER, Judge.
Patrick L. Shorty appeals his convictions for sexual
assault in the first degree and three related misdemeanor
charges. He argues that he could not be arrested without a
warrant, and argues in the alternative that his arrest was not
supported by probable cause. We hold that the police did not
need an arrest warrant before arresting Shorty for a felony, and
we conclude that there was probable cause for Shortys arrest.
We also conclude that the trial judge properly joined
the sexual assault charge with the misdemeanor charges that
developed when Shorty was arrested, and that there was sufficient
evidence to support Shortys convictions for resisting arrest and
fourth-degree assault. But we reverse Shortys conviction for
providing false information to a peace officer because we
conclude that the trial judge improperly allowed the prosecution
to substantively amend that charge at the conclusion of the
trial.
Background
On July 8, 2003, a young woman named B.A. encountered
three men at the Anchorage Transit Center. After a brief
conversation, the four began walking together towards the Carrs
store at 13th Avenue and Gambell Street. As they walked through
a vacant field, one of the men tripped B.A. and took her
backpack. A younger man then held B.A. down while an older man
raped her and repeatedly punched her in the face. The younger
man raped B.A. after the older man had finished. The third man
then alerted his companions that police were nearby, and the
three men quickly fled on foot. Shortly afterwards, B.A. ran to
a nearby patrol car and flagged down Officer Leonard Torres for
help.
Officer Torres saw three men running from the scene.
Chasing them down, Torres apprehended Thomas Leichty, whom B.A.
identified as one of the three men who assaulted her. Leichty
later told another officer that he could not remember his role in
the assault because he was intoxicated. However, Leichty did
recall that his friend a man he knew as Shorty had sexually
assaulted B.A. Leichty also mentioned that he had been in prison
with Shorty; using this information, officers were able to get
the name of Patrick Leo Shorty from the Tundra Correctional
Center.
After receiving Shortys name, Detective Kenneth D.
McCoy showed B.A. a photo lineup of suspects. B.A. chose two
photos from the lineup, one of which was of Shorty. Proceeding
on Leichtys statement, B.A.s description of the crime, and her
tentative identification of Shorty, McCoy applied for and
obtained a search warrant for Shortys DNA, clothing, and other
biological material on July 16, 2003. This warrant was good for
ten days. McCoy also had the police dispatchers issue a stop-and-
hold locatedirective, asking any law enforcement officials who
contacted Shorty to detain him so that McCoy could execute the
search warrant.
On July 26, 2003, the tenth day after the search
warrant was issued, the police dispatcher received an anonymous
tip that Shorty was near 10th Avenue and Ingra Street wearing a
green trench coat. Officers Gregory Witte and Andy Cottle
separately responded to the resulting dispatch. Witte responded
first and found a man matching the description given by the
dispatcher. Witte approached the suspect and asked the man to
identify himself, and he responded that his name was Harold
Gregory. He initially said that he was born in July 1969, then
said that he was actually born in 1968, and later suggested that
his birthday was actually in August. He also did not know his
social security number.
Witte attempted to confirm this information with the
Alaska Public Safety Information Network database, but the name
Harold Gregory registered no matches. At the same time, both
Witte and Cottle also believed that the suspect was preparing to
flee. When Witte then confronted the suspect about his
inconsistent birthdays, he stopped talking. At that point, Witte
decided to arrest the man who was in fact Patrick Shorty.
The officers began to grab Shortys arms, but he pulled
the officers into a nearby alley. The officers took Shorty to
the ground, and Cottle attempted to control Shortys head while
Witte tried to control Shortys arms. During the melee, Cottle
applied a vascular restraint that momentarily rendered Shorty
unconscious; when he regained consciousness, he quickly resumed
fighting. When Officer Christopher Ritala arrived, however, the
three police officers were able to secure Shorty.
At the police station, Shorty detailed his account of
the assault to Detective McCoy. According to Shorty, he could
not remember his exact role because he was intoxicated, but did
remember that Leichty had sex with B.A.
McCoy then obtained a new search warrant authorizing
collection of Shortys DNA because he believed that the previous
warrant had expired. After obtaining samples from both Shorty
and Leichty, the police compared them to an original DNA swab
taken from B.A. The results showed that Shorty was almost
certainly the source of the sperm sample contained in the swab
from B.A. The results also indicated that Shorty was the likely
source of a sperm sample contained in a penile swab taken from
Leichty.
Shorty was then charged with two counts of first-
degree sexual assault,1 one count of resisting arrest,2 one count
of fourth-degree assault,3 and one count of providing false
information to a peace officer.4 Prior to trial, he filed a
motion to suppress all of the evidence stemming from his arrest
arguing that he was detained and arrested without a warrant and
without probable cause. After two evidentiary hearings, Superior
Court Judge Michael L. Wolverton ruled that the officers had
probable cause to arrest Shorty and that no arrest warrant was
needed.
Judge Wolverton also denied Shortys motions to sever
the charges for separate trials, to dismiss the indictment, and
alternative motions asking the court to dismiss the misdemeanor
charges or require a bill of particulars. But the judge granted
Shortys motion to suppress the statement he made to Detective
McCoy following his arrest because he concluded that the
statement had been coerced by McCoys threat of harsher
treatment.5
Shorty was convicted on all charges after a jury
trial, and sentenced to a composite term of imprisonment of 31
years and 30 days. Shorty now appeals to this court.
No Warrant is Required for a Felony Arrest
Shorty argues that we should construe the Alaska
Constitution to require the police to obtain a warrant before
making a felony arrest unless there are exigent circumstances
that require immediate action.6 Shortys argument is directly
contrary to AS 12.25.030(3), which authorizes a peace officer to
arrest a person without a warrant when a felony has in fact been
committed, and the person making the arrest has reasonable cause
for believing the person to have committed it. As we explained
in McCoy v. State, under this statute, a peace officer, without a
warrant, may arrest a person for a felony when the officer has
probable cause to believe that a felony has been committed and
probable cause to believe that the person committed it.7
Alaska Statute 12.25.030(3) codifies the ancient
common-law rule that a peace officer was permitted to arrest
without a warrant for a . . . felony not committed in his
presence if there was reasonable ground for making the arrest,8
and is consistent with similar federal statutes enacted since the
Second Congress in 1792.9 In construing the Fourth Amendment,
the United States Supreme Court has approved of peace officers
having authority to make warrantless felony arrests based on
probable cause even if they have an adequate opportunity to
obtain a warrant.10
Statutory enactments carry a presumption of
constitutionality: A party raising a constitutional challenge to
a statute bears the burden of demonstrating the constitutional
violation.11 And when a party claims that our state constitution
should be interpreted differently than its federal counterpart,
the party must point this court to something in the text,
context, or history of the Alaska Constitution which justifies
this divergent interpretation.12
Shorty has not pointed to anything in the text,
context, or history of the Alaska Constitution suggesting why it
should be interpreted differently than the Federal Constitution
on this issue. Indeed, there is substantial evidence to the
contrary: Alaska law has been consistent with the common-law
felony-arrest rule since long before statehood.13 Shorty has
presented nothing to suggest that the Alaska Constitution was
intended to abrogate this long standing rule.
We therefore conclude that AS 12.25.030(3) is
constitutional: Felony arrests based on probable cause can be
made without a warrant. Accordingly, we now analyze whether the
police had probable cause to arrest Shorty.
The Police Had Probable Cause to Arrest Shorty for Sexual
Assault
A police officer has probable cause to arrest a
suspect when the facts and circumstances known to the officer
would support a reasonable belief that the suspect has committed
a criminal offense.14 Probable cause requires only a fair
probability or substantial chance of criminal activity, not an
actual showing that such activity occurred.15 We review the
record independently when we decide whether a particular arrest
is supported by probable cause.
Detective McCoy obtained statements from B.A. and
Thomas Leichty. B.A. stated that she had been raped by two men,
and Leichty confirmed that B.A. had been raped by his companion
named Shorty, whom he had met in jail. Leichtys statement
identifying Shorty was corroborated by the details of B.A.s
statement, her tentative identification of Shortys photo, and the
correctional facility report that Leichty and Shorty were
incarcerated together in the past.16 This evidence established a
fair probability that Shorty had committed the crime of sexual
assault. McCoy had thus developed probable cause by the time he
issued the directive requesting other officers to locate and hold
Patrick Shorty.
In addition, McCoys determination was supported by a
neutral judicial determination. McCoy applied for a search
warrant to take physical samples from Shorty based on the
statements of B.A. and Leichty the same statements that
supported his locate and hold directive. The judge who reviewed
McCoys application found probable cause to believe that the DNA
samples taken from Shorty would contain evidence of the crime of
sexual assault in the first degree. And this was essentially a
judicial finding that there was probable cause to believe that
Shorty had participated in the sexual assault of B.A.
For these reasons, we affirm Judge Wolvertons
conclusion that the police had probable cause to arrest Shorty
when they detained him on July 26th.
Officers Witte and Cottle Had a Reasonable Belief That the
Person They Detained Was Patrick Shorty
The two officers who stopped Patrick Shorty on July
26, Witte and Cottle, knew from previous briefings that Shorty
was a Native man who was a suspect in a recent sexual assault.
They were dispatched to 10th Avenue and Ingra street based on an
anonymous tip that Shorty was near that intersection and wearing
a green coat and backpack. And when the officers arrived,
Shorty was the only person matching this description.
Simply put, Witte and Cottle were justified in arresting
the man in the green coat if they had reason to believe that this
man was Patrick Shorty.17 The officers were entitled to rely on
the totality of the information they had at the time of the
arrest, even though the individual clues (such as the anonymous
tip18 and the absence of an APSIN record for Harold Gregory19)
would be insufficient to establish probable cause if analyzed
separately.20
In a similar case from the Tenth Circuit Court of
Appeals, a Kansas police officer had an arrest warrant for a man
named Gavin Allen.21 The officer received an anonymous tip that
Allen would be at a certain residence, and found someone at that
residence who matched the physical description given by the
informant. The suspect said that his name was Gerald Allen, but
then told the officer that his identification was in his brother
Geralds car.22 The court concluded that, at this point, the
officer could reasonably infer that the defendant was actually
Gavin Allen and was simply using the name Gerald as a cover.23
In this case, Witte and Cottle likewise had probable
cause to believe that the man they were dealing with was Patrick
Shorty. They were dispatched to the location because an
anonymous caller had reported seeing Shorty there. When they
arrived, they found a man matching the descriptions given by
McCoy and the caller. When Witte questioned the man about his
identity, the man gave answers that reasonably appeared to be
false and evasive. As we have already explained, Shorty gave the
officers two different years for his birth date (1968 and 1969),
as well as two different months, first saying that he was born in
July and then saying that his birthday was next month (August).
Also, Shorty could not give the officers his social security
number.
Moreover, Shorty claimed not to have any documentation
of his identity, and both officers began to sense that he was
preparing to flee, especially after he tried to hand his coat to
Officer Cottle. Given all of these circumstances, Witte and
Cottle could reasonably conclude that the man they were speaking
to was Patrick Shorty.24 They thus had probable cause to arrest
him for sexual assault.
These same circumstances gave the officers probable
cause to arrest Shorty for giving false information to a police
officer. The officers could reasonable conclude that Shorty had
knowingly give[n] false information to a peace officer concerning
[his] identity while . . . under . . . investigation for a crime
. . . .25 Accordingly, the officers had two justifications for
arresting Shorty.26
Given our conclusion that the police had probable
cause to arrest Shorty for sexual assault and for furnishing
false identifying information, we need not reach another issue
presented in this case: Whether the original search warrant
authorizing the seizure of biological materials from Shorty had
expired by the time he was arrested on the afternoon of July 26.
This warrant was issued on the morning of July 16, and
the warrant declared that the seizure was to be conducted within
ten days. Shorty takes the position that the warrant expired
exactly 240 hours after it was issued, and thus it had expired by
the time the police located him. This position appears to be
contrary to case law from other jurisdictions suggesting that the
warrant was effective at least until the conclusion of the tenth
calendar day.27 However, because there were independent
justifications for Shortys arrest, we need not decide this
particular issue in this case.
Shortys Claim that His Arrest was Illegal Because the
Officers Failed to Announce the Cause for His Arrest
Shorty argues we should find that his arrest was
illegal because the officers failed to inform him of the cause of
the arrest as required by AS 12.25.060. But Shorty did not raise
this issue in the superior court, and the parties did not
litigate exactly what he was told at the time of his detention.
Even if the officers conduct failed to comply with AS 12.25.060,
it is not obvious that a violation of this clause of the statute
should require the suppression of probative evidence.28 We note
that, in cases interpreting the analogous knock and announce
rule, we have held that police officers failure to inform a
resident of the reason for their entry is harmless if that
resident was already aware of the reason.29 We conclude that
Shorty failed to preserve this issue for appeal, and at the very
least, he has not shown plain error.30
The Grand Jury Heard Sufficient Admissible Evidence to
Support the Indictment
Shorty filed a pretrial motion to dismiss the
indictment against him arguing that the prosecutor presented
three types of inadmissible evidence to the grand jury: the DNA
evidence obtained from Shorty (because the arrest was illegal),
Leichtys statement to the police (because it was hearsay), and
Shortys statement to the police (because it was involuntary).
Having concluded that Shortys arrest was legal, we
also conclude that the DNA evidence that was obtained from him
after his arrest was properly presented to the grand jury. There
is also an argument under Alaska case law that the State had a
compelling justification to present Leichtys hearsay statement to
the grand jury.31 But Judge Wolverton did not consider this
issue because he concluded that removing Leichtys statement from
the grand jury would not vitiate the indictment. However, Judge
Wolverton did suppress Shortys statement to the police, so that
statement was also inadmissible at the grand jury proceeding.
We will assume that both Shortys and Leichtys
statements were inadmissible when we analyze their effect on the
grand jurys indictment. As we explained in Stern v. State, we
must determine (1) whether the remaining evidence is sufficient
to support the indictment and, if so, (2) whether the probative
force of [the] admissible evidence was so weak and the unfair
prejudice engendered by the improper evidence was so strong that
it appears likely that the improper evidence was the decisive
factor in the grand jurys decision to indict.32
The admissible evidence before the grand jury included
B.A.s testimony that she had been raped by a man named Shorty,
and the evidence suggesting that Shortys DNA matched a sample
taken from B.A.s vagina. There is no serious question that this
evidence was legally sufficient to support the indictment. Thus,
only the second question remains: Whether the probative force of
this evidence was so weak that it was likely that the
inadmissible evidence was the decisive factor in the grand jurys
decision to indict.
The inadmissible statements were indeed probative
each acknowledged Shortys presence at the scene of the sexual
assault. But the DNA evidence proved this point independently,
and was substantially stronger. The DNA evidence showed that
Shortys seminal fluids were almost certainly present in B.A.s
vagina, on her jeans, and on Leichtys penis and shirt. This
evidence strongly corroborated B.A.s testimony that she was
initially raped by Shorty, and then by Leichty. We therefore
conclude that Shortys and Leichtys statements were not the
decisive factor in the grand jurys decision to indict.
Shortys Various Offenses Were Properly Joined for Trial
Prior to trial, Shorty asked the trial court to sever
the sexual assault charges from the misdemeanor charges that
stemmed from his arrest (resisting arrest, assault in the fourth
degree, and providing false information to a peace officer). In
reviewing the trial courts denial of Shortys request, we first
inquire whether the offenses are related in one of the ways
authorizing joinder under Alaska Criminal Rule 8(a).33
Rule 8(a)(3) authorizes joinder of offenses that are
based on two or more acts or transactions connected together or
constituting parts of a common scheme or plan. Criminal
transactions may be connected together under Rule 8(a)(3) when
the State charges that the defendant committed an earlier crime,
then committed later crimes to avoid detection or prosecution.
For example, in Phillips v. State, the defendant committed armed
robbery in Anchorage, stole a cab in Palmer, and then killed a
state trooper who stopped him as he fled in the direction of
Glennallen.34 In West v. State, the defendant barricaded himself
in a cabin and set it on fire to avoid arrest for his failure to
report to a correctional facility.35 In Sharp v. State, the
defendant fled to South Carolina to avoid his trial on sexual
abuse charges.36 Similarly, in Newcomb v. State, the defendant
escaped from a correctional facility, then shot two police
officers as they were attempting to arrest him five month
later.37 In each of these cases we held that the crimes were
sufficiently connected to justify joinder under this subsection.
The rationale for joinder in Shortys case is similar.
The evidence that Shorty committed a sexual assault was relevant
to show that he had a motive for giving false information,
resisting arrest, and assaulting an officer when the officers
approached him eighteen days later. And the evidence that Shorty
gave a false name and attempted to avoid his arrest was
correspondingly relevant to show that he had guilty knowledge of
the sexual assault. In other words, these two sets of offenses
were sufficiently connected together to justify joinder under
Criminal Rule 8(a)(3).
We next must determine whether the trial court was
required to sever the charges under Alaska Criminal Rule 14,
which allows for relief from prejudicial joinder. But [i]f the
evidence would be cross-admissible if tried separately, 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.38 As noted above,
the evidence of the sexual assault would be relevant to show
Shortys motive for avoiding arrest, and the evidence that he
tried to avoid his arrest would be relevant to show that he had
committed the sexual assault. Moreover, Shorty did not suffer
any prejudice based on the joinder of these offenses, and Judge
Wolverton thus did not abuse his discretion when he denied
Shortys motion to sever.
Sufficient Evidence Supported Shortys Conviction for
Resisting Arrest
At the close of evidence, Shorty moved for a judgment
of acquittal on the resisting arrest charge, but this motion was
denied. Shorty now argues that there was insufficient evidence
that he knew he was under arrest and that he used force to resist
arrest. To address this argument, we view the evidence
presented, and the reasonable inferences from that evidence, in
the light most favorable to upholding the jurys verdict. We
consider whether a fair-minded juror exercising reasonable
judgment could conclude that the State met its burden of proving
guilt beyond a reasonable doubt.39
Alaska Statute 11.56.700(a)(1) provides: A person
commits the crime of resisting or interfering with arrest if,
knowing that a peace officer is making an arrest [and] with the
intent of preventing the officer from making the arrest, the
person resists . . . arrest . . . by force . . . . Under this
statute, it is not always necessary for the State to prove that a
person was explicitly told that he was under arrest, but the
State must prove that the defendant was aware that the officer
was making an arrest.40
In the instant case, there was substantial evidence
suggesting that Shorty knew he was being placed under arrest.
Shorty gave Officer Witte a false name and false birthdays when
the officer first approached. Then Shorty appeared to make
preparations to flee or fight as he tried to hand his coat to
Officer Cottle. This behavior suggested that Shorty knew that he
was under investigation for a crime even before the officers laid
their hands on him.
Indeed, Shorty began to resist the officers quite
violently when they tried to handcuff his second hand.
Accordingly, viewing the record in the light most favorable to
the State, the jury could have reasonably inferred that Shorty
knew that the officers were making an arrest.
There is also substantial evidence that Shorty resisted
his arrest by force. Force is defined by statute to mean any
bodily impact, restraint, or confinement or the threat of
imminent bodily impact, restraint, or confinement.41 At trial,
Officer Witte testified that when he and Cottle attempted to
arrest Shorty, Shorty pulled [them] a good ten to twelve feet
into the alley and began to struggle. The officers then took him
to the ground where he landed on all fours. While Witte had one
of Shortys hands, Shorty used his other hand to grab Cottles
hands and fingers. Cottle then applied a vascular restraint,
rendering Shorty momentarily unconscious. When Shorty regained
consciousness, he immediately started fighting and grabbing for
the officers hands, trying to do damage . . . so that . . . he
could get away. When Officer Ritala arrived, the three were able
to restrain Shorty and secure him in handcuffs and hobbles.
Based on these accounts, we conclude that there was
ample evidence to support Shortys conviction for resisting
arrest.
Sufficient Evidence Also Supported Shortys Conviction for
Assault
At the close of evidence, Shorty also moved for a
judgment of acquittal on the charge of assault in the fourth
degree. This charge was based on the allegation that Officer
Cottle suffered injury to his knee during the struggle in
arresting Shorty. Shorty argued that there was insufficient
evidence that he caused the injury to Cottles knee.
Alaska Statute 11.41.230(a)(1) provides: A person
commits the crime of assault in the fourth degree if that person
recklessly causes physical injury to another person . . . . A
person acts recklessly when the person is aware of and
consciously disregards a substantial and unjustifiable risk that
the result will occur . . . .42
At trial, Officer Cottle testified that he injured his
knee while trying to arrest Shorty. According to Cottles
testimony, he applied several knee strikes to Shortys midsection
and was wrestling Shorty on the ground, and as a result received
injuries that required medical attention. Cottle testified that
he would not have used the knee strikes if Shorty had not been so
combative.
Officer Witte characterized Shortys behavior as
aggressive resistance and testified that Shorty was attempting to
do damage so that he could get away from the police. Officer
Cottle also characterized Shortys resistance as violent and
testified that Shorty just fought. Officer Ritala testified that
when he arrived, Shorty was on the ground kicking and actively
fighting the other officers.
Based on this testimony, the jury had reasonable
grounds to infer that Cottle sustained his knee injury while
Shorty physically resisted arrest either through the knee
strikes or by contact with the ground and that Shorty was aware
of and consciously disregard[ed] a substantial and unjustifiable
risk that his struggle would lead to Cottle or one of the other
officers suffering this kind of injury.
Shorty Suffered Prejudice From the Late Amendment of the
False Information Charge
Throughout the trial, the State prosecuted the false
information charge under AS 11.56.800(a)(1)(A), which
criminalizes providing false information with the intent of
implicating another in an offense . . . . The States theory
apparently was that, when Shorty provided the name Harold Gregory
to the police, he was attempting to implicate someone named
Harold Gregory in the commission of an offense.
At the close of evidence, Shorty moved for a judgment
of acquittal on the ground that no one else had been implicated
in a crime when he gave the officers the false information. In
response, the State then moved to amend the charging statute to
AS 11.56.800(a)(1)(B)(i), which criminalizes the act of providing
false information while under arrest, detention, or investigation
for a crime. Shorty objected to this proposed amendment, but
Judge Wolverton allowed it, finding that there was no prejudice
because the evidence presented at Shortys trial would have been
the same under either theory.
Under Alaska Criminal Rule 7(e), a court may permit a
charge to be amended before the verdict has been returned if the
prosecution satisfies two elements: (1) no additional or
different offense is charged and (2) the substantial rights of
the defendant [have not been] prejudiced. To succeed on appeal,
Shorty must show that the nature or timing of the amendment
prejudiced his defense.43
Here, the amendment was granted after all of the
trial evidence had been presented. In the absence of this
amendment, Shorty would have been entitled to a judgment of
acquittal, as the State presented no evidence that Harold Gregory
existed or that Shorty was attempting to implicate this person in
the commission of a crime.
More importantly, however, the amendment actually
prejudiced Shortys defense. Shorty defended against the false
information charge by contending that Harold Gregory was just a
made-up name, and that he did not intend to implicate anyone else
in a crime. Shortys attorney cross-examined Officer Witte
concerning this issue, and Witte admitted that he did not know
whether Harold Gregory actually existed. In addition, before
the State moved to amend the charge, Shorty had no incentive to
cross-examine the officers about the element that was added by
the amendment: Whether he should have known that he was under
investigation for a crime when the officers approached him and he
gave them a false name.
We acknowledge that the issue of Shortys knowledge
that he was being investigated for a crime overlaps with the
issue we resolved concerning the resisting arrest charge that
is, whether Shorty was aware that the officers were trying to
arrest him. But the amended false information charge required
the State to prove a somewhat more difficult proposition that
Shorty knew that he was under criminal investigation when the
officers first approached him and he gave them the false name.
We believe that Shorty might have litigated this issue
differently if he had known that the State would proceed under
subsection (1)(B)(i) of the statute, and we therefore conclude
that Shorty was prejudiced by the amendment of the charge.
Conclusion
We REVERSE Shortys conviction for giving false
information. We AFFIRM the balance of the superior courts
judgment.
_______________________________
1 Counts III and IV - AS 11.41.410(a)(1); AS 11.16.110.
2 Count V - AS 11.56.700(a)(1).
3 Count VI - AS 11.41.230(a)(1).
4 Count VII - AS 11.56.800(a)(1).
5 See Beavers v. State, 998 P.2d 1040, 1046-48 (Alaska
2000).
6 Cf. Campos v. State, 870 P.2d 117, 121 (N.M. 1994) (Thus,
our constitution and case law lead us to hold that for a
warrantless arrest to be reasonable the arresting office must
show that the officer had probable cause to believe that the
person arrested had committed or was about to commit a felony and
some exigency existed that precluded the officer from securing a
warrant.).
7 491 P.2d 127, 130 (Alaska 1971).
8 United States v. Watson, 423 U.S. 411, 418, 96 S. Ct. 820,
825, 46 L. Ed. 2d 598 (1976).
9 See id. at 420-21, 96 S. Ct. at 826.
10 See id. at 423-24, 96 S. Ct. at 828.
11 Baxley v. State, 958 P.2d 422, 428 (Alaska 1998).
12 Mitchell v. State, 818 P.2d 1163, 1165 (Alaska App.
1991).
13 See 290, pt. II Carters Annotated Alaska Code (1900).
Moreover, the rule in Carters Code was based on the Code of
Criminal Procedure, ch. XXXVI, 370 at 505 (1864), codified in
General Laws of Oregon, ch. XXXVI, 370 (Deady and Lane 1843-
1872), which states that [a] peace officer may, without a
warrant, arrest a person . . . [w]hen a felony has in fact been
committed, and he has reasonable cause for believing the person
arrested to have committed it.
14 State v. Joubert, 20 P.3d 1115, 1118-19 (Alaska 2001).
15 Id. (citation omitted).
16 See Merrill v. State, 457 P.2d 231, 234 (Alaska 1969),
overruled on other grounds by Donnelly v. State, 516 P.2d 396,
399 n.6 (Alaska 1973) (finding that there was probable cause to
arrest a suspect based on his identification by an accomplice).
17 Cf. Hill v. California, 401 U.S. 797, 802-04, 91 S. Ct.
1106, 1110-11, 28 L. Ed. 2d 484 (1971) (holding that in a
situation where the police have probable cause to arrest one
party, and reasonably mistake a second party for that first
party, the arrest of the second party is still a valid arrest).
18 See Carter v. State, 910 P.2d 619, 626 (Alaska App.
1996) (noting that unverified anonymous tips are insufficient to
establish probable cause).
19 See Erickson v. State, 141 P.3d 356, 359-60 (Alaska
App. 2006) (concluding that the mere absence of someones name in
the APSIN database does not establish probable cause).
20 See Dunn v. Alaska, 653 P.2d 1071, 1079 (Alaska App.
1982) (Although it might be true . . . that various factors, if
taken individually, are as readily consistent with innocence as
guilt, we believe that the main point to be made is that the
factors did not occur individually, and in isolation from each
other.).
21 See United States v. Allen, 235 F.3d 482, 487-88 (10th
Cir. 2000).
22 Id. at 488.
23 Id.
24 See Dunn, 653 P.2d at 1079.
25 AS 11.56.800(a)(1)(B)(i).
26 See, e.g., Snider v. State, 958 P.2d 1114, 1118 (Alaska
App. 1998); State v. Kendall, 794 P.2d 114, 117 (Alaska App.
1990) ([T]he trial court should analyze the objective information
which the police had at the time when they made an arrest in
determining whether there was probable cause to make that
arrest.).
27 See, e.g., United States v. Robinson, 536 F.3d 874, 877-
78 (8th Cir. 2008); Batemon v. United States, 203 Fed. Appx. 723,
725-26 (7th Cir. 2006); People v. Clayton, 22 Cal. Rptr. 2d 371,
374 (Cal. App. 1993); State v. Edwards, 297 N.W.2d 12, 14 (Wis.
1980).
Fl ener v. State, 686 P.2d 730, 735-36 (Alaska App. 1984), w
here this Court found substantial compliance with the knock
and announce statute in a case where the police identified them
selves, but did
29 See Fleener v. State, 686 P.2d 730, 735-36 (Alaska App.
1984), where this Court found substantial compliance with the
knock and announce statute in a case where the police identified
themselves, but did not announce their purpose or authority
before entering the house to serve a search warrant. Our ruling
rested on the trial judges findings that Fleener was in fact
aware of the officers purpose and authority, even without any
announcement: Fleener knew [that] the police were [coming to]
her residence to seize marijuana and that they had now obtained
lawful authority to enter. Id. at 736.
30 See Mattox v. State, 191 P.3d 148, 151 (Alaska App.
2008) (Because Mattox never argued in superior court that his due
process rights were violated, he did not preserve this claim for
appeal.).
31 See Galauska v. State, 527 P.2d 459, 463-66 (Alaska
1974) (noting the fact that a codefendant would probably exercise
his right not to testify before the grand jury could be a
compelling justification for the admission of codefendants
confession that implicated the defendant).
32 827 P.2d 442, 445-46 (Alaska App. 1992).
33 See Pease v. State, 54 P.3d 316, 322 (Alaska App.
2002).
34 70 P.3d 1128, 1132-34 (Alaska App. 2003).
35 923 P.2d 110, 112-13 (Alaska App. 1996).
36 837 P.2d 718, 722-25 (Alaska App. 1992).
37 800 P.2d 935, 942-43 (Alaska App. 1990). See also
Maynard v. State, 652 P.2d 489, 491 (Alaska App. 1982) (Here all
charges grew out of a related series of events, and the trial
court could well have anticipated that much of the evidence
offered in support of one count would be relevant to the
others.).
38 Pease, 54 P.3d at 322.
39 See Eide v. State, 168 P.3d 499, 500-01 (Alaska App.
2007).
40 See Jones v. State, 11 P.3d 998, 1001 (Alaska App.
2000).
41 AS 11.81.900(b)(27).
42 AS 11.81.900(a)(3).
43 See Bowers v. State, 2 P.3d 1215, 1221 (Alaska 2000).
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