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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
NEKIDA JONES,
Appellant, Court of Appeals No. A-
10142
v. Trial Court No. 3AN-
06-042 Cr
STATE OF ALASKA,
Appellee. O P I N I
End of Caption O N
No. 2239 September 18, 2009
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Philip R. Volland,
Judge.
Appearances: Renee McFarland, Assistant
Public Defender, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellant.
Tamara E. de Lucia, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Wayne Anthony Ross,
Attorney General Designate, Juneau, for the
Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Bolger, Judges.
MANNHEIMER, Judge.
Nekida Jones was prosecuted for second-degree assault
based on the allegation that he assaulted his girlfriend by
striking her repeatedly on the head and strangling her. At
Joness trial, the State wished to introduce evidence that Jones
had committed a similar domestic assault in the past i.e., had
assaulted another girlfriend by striking her repeatedly on the
head and strangling her.
However, rather than calling the victim of this earlier
assault to the stand, the State offered documentary evidence to
establish this prior act of assault. Specifically, | the State sought to introduce (1 | ) the criminal complaint that was filed in connection with the earlier incident (charging Jones with the crime of assault under section 08.10.010(B | )(1 | ) of the Anchorage Municipal Code | ), and (2 | ) the ensuing criminal judgement that was entered against Jones for this misdemeanor, after Jones pleaded no contest to the charge. |
| The trial judge questioned the admissibility of the assertions of fact contained in the complaint, noting that these statements were double hearsay. However, the judge ultimately ruled that the statements were admissible under the theory that Jones must have expressly adopted or conceded the truth of the allegations in the complaint when he entered his no contest plea. | |||||
| The question presented in this appeal is whether the superior court was correct when it ruled that the assertions of fact contained in the earlier assault complaint were admissible against Jones over a hearsay objection. We conclude that the assertions of fact in the complaint were inadmissible hearsay and that they should not have been admitted at Joness trial. Moreover, there is a reasonable likelihood that the error in admitting these statements appreciably affected the jurys verdict. We therefore reverse Joness conviction. | |||||
The trial courts ruling on the
admissibility of the assertions of fact contained in the prior
complaint
When the State proposed to introduce its
documentary evidence the judgement from Joness prior
assault conviction, and the complaint that initiated
that earlier assault prosecution Jones did not object
to the criminal judgement, but he did object to the
complaint.
In the complaint or more specifically, in
the affidavit supporting the complaint the
investigating officer made several specific assertions
of fact: that Jones had grabbed [his former
girlfriend] by the arms, that he had struck her in the
face several times with an open hand, that he had
struck her at least once with a closed fist, and that
he had grabbed her with both hands around the neck.
These assertions were not based on the officers
personal knowledge, but rather on his interview with
Joness girlfriend.
The State wished to rely on these factual
assertions to show that Joness prior assault on his
former girlfriend was sufficiently similar to the
currently charged assault to warrant admission of this
evidence at Joness trial under Evidence Rule 404(b)(4).
The trial judge, Superior Court Judge Philip
R. Volland, questioned whether the statements contained
in the complaint were admissible. Judge Volland noted
that, because these statements were being offered for
the truth of the matters asserted, they were double
hearsay. In other words, the assertions of fact
contained in the complaint were statements made out of
court by the investigating officer, and the officers
statements were themselves based on still other out-of-
court statements: the report of the victim.
The problem facing the State was that if only
the judgement was admissible, and not the assertions of
fact in the complaint, then the States offer of proof
would be insufficient to establish that the prior
assault was sufficiently similar to the currently
charged assault to warrant admission of this evidence
under Rule 404(b)(4).
The criminal judgement described Joness
criminal conduct only by reference to the charge
specified in the complaint the crime of assault as
defined in AMC 08.10.010(B)(1). Under this provision
of the municipal code, the crime of assault consists of
the intentional or reckless use of force or violence
upon the person of another. Thus, the criminal
judgement described Joness conduct in only generic
terms.
It was the complaint that contained the
crucial assertions that Jones had grabbed [the victim]
by the arms, had struck her in the face several times
with an open hand, had struck her at least once with a
closed fist, and had grabbed her with both hands around
the neck. Judge Volland expressly relied on these
assertions in particular, the assertions that Jones
struck the former girlfriend repeatedly in the face,
and that he began to strangle her when the judge
concluded that Joness prior assault was sufficiently
similar to the currently charged assault to warrant
admission of this evidence at Joness trial.
When Judge Volland raised the question of
whether the assertions of fact in the complaint were
inadmissible hearsay, the prosecutor responded that
Jones, by pleading no contest to the earlier assault
charge, had relinquished his right to contest any of
the assertions of fact contained in the complaint:
Prosecutor: The complaint is the
factual basis upon which the plea was taken.
The defendant accepts those facts when the
judgment and the conviction is entered. ...
[So] Mr. Joness ability to dispute [the facts
asserted in the complaint] is over and done
with.
. . .
If there wasnt a conviction, Judge,
[then] absolutely, I would need to bring in
[witnesses] so that [Jones] could confront
them, and [these assertions] could be
presented to the jury, and the jury could
decide those things. But once we have a
conviction, were supposed to be beyond that
point.
In reply, Joness attorney argued
that, as a legal matter, this was not true:
Defense Attorney: When defendants enter
no contest pleas, theyre choosing not to
challenge the [government]. Theyre choosing
not to fight ... . Its not necessarily their
acquiescence [in the governments allegations,
or that] theyre agreeing with everything
thats stated in the complaint. ... So its
not correct to say that, once they enter a no
contest plea, they no longer have the ability
or they are in complete agreement with whats
been said in the complaint.
The defense attorney also pointed
out that any single one of the four
allegations of force or violence contained in
the complaint, standing alone, would have
been a legally sufficient basis for a charge
of assault; thus, there was no way of knowing
which of these assertions formed the factual
basis for Joness conviction.
After hearing these competing
arguments, Judge Volland declared that he was
persuaded by the States argument that a
defendants entry of a no contest plea is an
admission of all assertions of fact contained
in the complaint. Based on this analysis,
the judge concluded that the complaint was
admissible against Jones as proof of the
factual matters asserted in the complaint:
The Court: Every time I take a plea, I
do precisely what [the prosecutor] says: I
ask the defendant or ... his or her counsel
... , Do you accept the factual basis of the
complaint for the limited purpose of the
factual support for the plea? And the answer
is always yes. Otherwise, I wouldnt take the
plea.
. . .
[So] Im persuaded by the States
arguments here, and Ill permit admission of
the ... complaint in [this earlier] matter.
I think that [the prosecutor] is correct
that, having pled [no contest] to the
assault, Mr. Jones has admitted the acts as
alleged [in the complaint as] the factual
basis of the plea.
In other words, Judge Volland found
that, under Alaska criminal procedure, the
district court could not have accepted Joness
no contest plea to the earlier municipal
assault charge unless Jones conceded (either
personally, or through his attorney) the
truth of all the assertions of fact contained
in the complaint. It appears that, based on
this assumption, Judge Volland concluded that
all of the assertions of fact contained in
the complaint were admissible against Jones,
over a hearsay objection, because they
qualified as admissions of a party-opponent
under clause (A), (B), or (C) of Alaska
Evidence Rule 801(d)(2).1
Why the assertions of fact contained in the earlier
complaint were not admissible as admissions of a
party-opponent
When Judge Volland ruled that Jones had
conceded the truth of the assertions of fact contained
in the earlier complaint, the judge did not require the
State to present any evidence concerning the particular
inquiries that might have been addressed to Jones or to
his attorney at the change-of-plea hearing in the
earlier municipal assault case. Nor did Judge Volland
require the State to present any evidence concerning
the statements or admissions that Jones or his attorney
might have made at that change-of-plea hearing.
Instead, Judge Volland essentially took judicial notice
that, whenever a defendant pleads no contest to a
criminal charge in Alaska, the defendant (or the
defendants attorney) will be called upon to
affirmatively confirm or concede the assertions of fact
contained in the indictment or complaint, and the
change-of-plea proceeding will not go forward unless
the defendant concedes the truth of these assertions.
This is not the law of Alaska.
First, Alaska law only requires judges to
ascertain the factual basis of a plea when the
defendant offers a guilty plea, not when the defendant
offers a no contest plea. Alaska Criminal Rule 11(f)
states that a court shall not enter a judgment upon a
plea of guilty without first being satisfied that there
is a reasonable basis for the plea. (Emphasis added)
This provision was added to Alaska Criminal
Rule 11 in 1968 by Supreme Court Order No. 98. (See
page 9 of that order.) The supreme courts amendment of
the rule appears to have been prompted by the fact that
an analogous clause (i.e., a provision requiring judges
to find that there is a supporting factual basis for a
guilty plea) was added to Federal Criminal Rule 11 in
1966. See Charles Alan Wright and Andrew D. Leipold,
Federal Practice and Procedure Criminal (4th ed.
2008), 170, Vol. 1A, p. 145.
We note that the other pertinent subsections
of Alaska Criminal Rule 11 subsections (c), (d), and
(h) refer to both pleas of guilty and pleas of no
contest, while subsection (f) refers only to pleas of
guilty. This in itself suggests that the requirement
of ascertaining a factual basis for the plea applies
only when a defendant is offering a guilty plea, and
not when a defendant is offering a no contest plea.
This is, in fact, how the corresponding
federal rule is interpreted:
There are two significant differences
[in federal procedure] between a nolo
contendere plea and a guilty plea. First,
[Federal Criminal] Rule 11(b)(3) requires the
court to find a factual basis for a guilty
plea but not for a nolo contendere plea.
Although at one time the Advisory Committee
proposed a rule that would prohibit courts
from accepting a no contest plea without
first being satisfied that the defendant
[had] committed the crime charged, [that]
proposal was never adopted. As an earlier
edition of this treatise pointed out, the
rationale for dispensing with the factual
basis requirement [for no contest pleas] is
that an innocent person may not wish to
contest the charges against him, and a no
contest plea is the means to accomplish this.
The result is that a defendant may be
convicted of a crime without the court having
any basis to believe that the defendant is
guilty in fact.
Federal Practice and Procedure, 175, Vol.
1A, p. 190 (citations omitted).
This same reasoning was adopted by
the Alaska Supreme Court in Miller v. State,
617 P.2d 516 (Alaska 1980). In Miller, the
supreme court confronted a situation where
the superior court refused to accept the
defendants pleas of no contest after the
defendant insisted that he was innocent.2
The superior court told the defendant that he
would have to admit to the court that there
was a reasonable [factual] basis for the
pleas, ... or the pleas would be considered
withdrawn.3 When the defendant refused to
acknowledge that he was factually guilty, the
superior court directed that his no contest
pleas were to be ignored.4 The defendant
then appealed.
The supreme court reversed the
superior court, declaring that [i]n Alaska, a
defendant may plead nolo contendere as a
matter of right.5 The supreme court
clarified that when a defendant offers a plea
of no contest,
the only inquiry permitted the trial court by
Criminal Rule 11 is that of determining
whether the plea is knowing and voluntary.
Alaska [Criminal Rule] 11(c) and (d). ...
[O]nce the trial court determines that a plea
of nolo contendere is knowing and voluntary,
[the court] is bound to accept that plea ...
.
Miller, 617 P.2d at 518.
The supreme court then expressly
rejected the argument that the factual basis
inquiry mandated by Criminal Rule 11(f)
applies to pleas of no contest:
The state argues that Criminal Rule
11(f) permits the court to inquire as to
whether there is a reasonable basis for a
plea of nolo contendere. We disagree.
Subsection (f), by its terms[,] applies only
to guilty pleas. ... Moreover, to require a
defendant to show that there is a reasonable
basis for a plea of nolo contendere puts the
defendant in the awkward position of having
to demonstrate his guilt in order to be
allowed to plead nolo contendere. Such a
practice destroys the unique purpose of the
nolo [contendere] plea, which is that the
issue of guilt shall not be contested.
Id. (citations omitted).
For these reasons, we conclude
that, in the present case, it was error for
the superior court to assume, or to take
judicial notice, that whenever a defendant
offers a plea of no contest, the defendant
(or the defendants attorney) will be required
to expressly confirm or concede the
assertions of fact contained in the
indictment or complaint before the court
accepts the plea. The law is the opposite in
this state. When Jones pleaded no contest to
the municipal assault charge, he was not
required to confirm or concede any of the
governments factual allegations.
Of course, it is possible that, at
the change of plea hearing, Jones or his
attorney did in fact expressly confirm or
concede some or all of the assertions of fact
contained in the municipal assault complaint.
If so, then these statements about the facts
of that earlier offense would arguably be
admissible against Jones at his trial on the
current charge, as admissions of a party-
opponent.
But as we explained above, the
State did not offer any evidence concerning
what occurred at Joness change-of-plea
hearing in the earlier municipal assault
case. Rather, the superior court relied on
the mistaken principle or assumption that
anyone who pleads no contest to a criminal
charge will be required, as part of the plea-
acceptance process, to admit all of the
factual assertions contained in the charging
document.
Because this assumption was wrong,
and because the State failed to present any
other evidence to establish that Jones had
conceded or adopted the assertions of fact
contained in the earlier assault complaint,
it was error for the superior court to admit
those statements under the theory that they
were statements of a party-opponent.
The States alternative argument that, even if Jones
never expressly confirmed or conceded the
assertions of fact in the earlier complaint, he
was nonetheless precluded from contesting any of
these assertions of fact
On appeal, the State proposes an alternative
theory of why the assertions of fact in the
criminal complaint were admissible against Jones.
The State argues that, because Jones pleaded no
contest to the earlier assault charge, he was
precluded by law from contesting the factual
assertions contained in the assault complaint,
even if he never conceded the truth of these
assertions.
It is true that when defendants plead no
contest, they authorize the court to enter judgement
against them as if each necessary element of the
offense had been proved, even though the defendants may
maintain their factual innocence. Scott v. State, 928
P.2d 1234, 1235, 1238 (Alaska App. 1996); Ashenfelter
v. State, 988 P.2d 120, 123 (Alaska App. 1999).
And, under Alaska law, if a defendant is
convicted of a serious crime based on a plea of no
contest, the doctrine of issue preclusion will operate
to bar the defendant from later disputing any issue of
fact that was necessary to the entry of that criminal
judgement. In Scott v. Robertson, 583 P.2d 188 (Alaska
1978), the supreme court held that a criminal
conviction may be introduced in later civil litigation
as conclusive proof of the factual matters litigated in
the criminal case if: (1) the prior conviction is for
a serious criminal offense; (2) the [criminal]
defendant in fact had a full and fair hearing [in the
criminal proceeding]; and (3) ... the [factual] issue
[for] which the judgment is offered was necessarily
decided in the previous [criminal] trial.6
The Scott decision dealt with a civil
litigant who had been convicted of a crime following a
jury trial. But in Burcina v. Ketchikan, 902 P.2d 817,
822 (Alaska 1995), Howarth v. Alaska Public Defender
Agency, 925 P.2d 1330, 1333 (Alaska 1996), and Lamb v.
Anderson, 147 P.3d 736, 742 (Alaska 2006), the supreme
court held that this same rule of issue preclusion
applies to civil litigants who were convicted of crimes
based on their pleas of no contest.
The State asks us to apply a similar rule of
issue preclusion in Joness case. In other words, the
State argues that, because Jones pleaded no contest to
the earlier assault charge, the assertions of fact
contained in the assault complaint must now be treated
as conclusively proved for purposes of the current
criminal litigation between Jones and the State.
The first difficulty with this argument is
that all of the pertinent cases cited by the State
involve application of the doctrine of issue preclusion
in later civil litigation, not later criminal
litigation. As our supreme court noted in Scott v.
Robertson, the rule at common law was that criminal
convictions [were] not competent evidence of the facts
supporting them in later litigation.7
Alaskas gradual departure from this
common-law rule has been based on policy
considerations.8 The States suggestion in Joness case
that we extend the issue-preclusion effect of no
contest pleas to later criminal litigation raises
questions of policy that are potentially difficult to
answer, and which have not been addressed in the
parties briefs.
These policy issues are addressed obliquely
in the Commentary to Alaska Evidence Rule 203(c).
Evidence Rule 203(c) prescribes differing rules
regarding the conclusiveness of judicially noticed
facts, depending on whether the litigation is civil or
criminal. In civil litigation, the jury is bound by
judicially noticed facts, while in criminal litigation,
the jury is instructed that it may, but it is not
required to, accept judicially noticed facts as
conclusive. The Commentary to Evidence Rule 203(c)
explains:
Authority [on] the propriety of taking
judicial notice against an accused in a
criminal case ... is relatively meager.
While it may be argued that the right of jury
trial does not extend to matters which are
beyond reasonable dispute, [Alaska Evidence
Rule 203(c)] opts for ... greater protection
of the accuseds right to a jury trial ... by
[adopting the rule] that the jury may, but is
not required to, accept as conclusive any
fact judicially noticed.
. . .
The jury simply is to be told that a
[judicially] noticed fact is treated as if
evidence of it ... [had been] submitted. A
defense lawyer can argue that any fact should
be disbelieved by the jury[,] and this
[applies to] a judicially noticed fact.
Our hesitancy to resolve this
question (whether issue preclusion can be
employed against a defendant in a criminal
trial) is bolstered by the fact that, under
federal law, a criminal conviction based on a
no contest plea is not admissible to prove
the facts asserted in the charging document.
As explained in Wright and Leipolds Federal
Practice and Procedure, a nolo contendere
plea [does not] establish the fact of a prior
crime, as opposed to [the fact of the]
defendants conviction for that crime, in a
later criminal action.9 (Emphasis added)
This principle is illustrated by
the Ninth Circuits decision in United States
v. Nguyen, 465 F.3d 1128 (9th Cir. 2006).
The defendant in Nguyen was convicted under
federal law for willful failure to comply
with the terms of his supervised release by
the immigration authorities.10 The terms of
Nguyens release required that he not commit
any crimes.11 Nguyen was convicted of
violating this condition based solely on
proof that he was convicted in state court of
two misdemeanors under Alaska law after he
entered pleas of no contest to those
charges.12
At Nguyens trial, the federal
governments only evidence consisted of
certified copies of the two state court
judgements that resulted from Nguyens no
contest pleas.13 Nguyen objected on the
grounds that the judgements were hearsay and
that his no contest pleas were not admissions
of factual guilt, but these objections were
overruled.14
In his federal appeal, Nguyen
argued that, because a no contest plea is not
an admission of factual guilt, his
misdemeanor convictions based on no contest
pleas did not, standing alone, prove that he
had committed any crimes. Nguyen further
argued that, because his Alaska convictions
were based on no contest pleas, they should
not have been admitted into evidence at his
trial because they did not prove any
assertion of fact.15 The Ninth Circuit
agreed with Nguyen.
[A plea of no contest] is ... not an
admission of factual guilt. ... It merely
allows the defendant so pleading to waive a
trial and to authorize the court to treat him
as if he were guilty[,] ... even if he is
unwilling or unable to admit his
participation in the acts constituting a
crime. ... The availability of the nolo
contendere plea to the criminally accused
reflects societys desire to encourage
compromise resolution of criminal cases. ...
A conviction resulting from a nolo contendere
plea under these circumstances is not by
itself sufficient evidence to prove a
defendant committed the underlying crime.
Nguyen, 465 F.3d at 1130-31 (citations and
internal quotations omitted).
The Ninth Circuit then noted that,
under Federal Evidence Rule 803(22), evidence
of a final felony judgment entered after a
trial or after a plea of guilty is admissible
to prove any fact essential to sustain the
judgment but that this rule expressly does
not apply to judgments entered after a plea
of no contest.16
The State argues that this federal
authority is distinguishable because some of
the federal evidence rules cited in Nguyen
differ from the Alaska rules of evidence.
But, on this issue, the primary difference
between the federal rules of evidence and the
Alaska rules of evidence is that the drafters
of the Alaska rules expressly decided not to
adopt a rule corresponding to Federal
Evidence Rule 803(22).
As the Ninth Circuit explained in
Nguyen, Federal Evidence Rule 803(22) allows
the government to introduce a defendants
prior felony conviction as evidence of any
fact essential to sustain the judgment if the
conviction was based on a trial verdict or a
guilty plea, but not if the conviction is
based on a no contest plea. But the drafters
of the Alaska rules of evidence chose not to
adopt this provision of federal law.
The Alaska drafters reasoning is
explained in the final paragraph of the
Commentary to Alaska Evidence Rule 803, Note
on Omission:
Omitted from [Alaska Evidence Rule 803]
is an exception for [previous] judgments of
... conviction. See Federal [Evidence] Rule
803(22). [G]uilty pleas and statements in
connection therewith are [already] admissible
[as statements of a party opponent] under
Rule 801(d)(2)[(A)], unless banned under Rule
410, [so] the only reason to include [a
hearsay] exception for [previous] judgments
of ... conviction is to permit [the] finding
of one trier of fact to come before another
[trier of fact]. [But if] a judgment of
guilt[] in a criminal case ... is to have
[an] impact in subsequent cases, the impact
should be by way of collateral estoppel, not
by admitting the previous judgment. The judg
ment[, standing alone,] tells the second
trier of fact nothing; that [second] trier
[of fact] will either disregard [the prior
judgment] or defer to it, neither of which
... is intended by the [corresponding]
Federal Rule.
In other words, Alaska law provides
that a prior judgement of conviction whether
based on a trial verdict or on a defendants
plea of guilty or no contest can trigger the
doctrine of issue preclusion, thus
prohibiting a civil litigant from advancing
or contesting certain issues of fact. But no
provision of the Alaska rules of evidence
authorizes the evidentiary use of a criminal
judgement (again, regardless of its basis) to
prove the facts underlying that judgement.
See Douglas v. State, 166 P.3d 61, 85 (Alaska
App. 2007) (evidence of a criminal conviction
is inadmissible hearsay under Alaska law if
it is offered to prove that the defendant
actually engaged in the conduct that would
justify that conviction).
The supreme court discussed a
related point in F.T. v. State, 862 P.2d 857
(Alaska 1993). In F.T., a child-in-need-of-
aid case, the superior court took judicial
notice of the fact that a long-term
restraining order had been issued against the
father of the child, for the purpose of
establishing that the father was factually
guilty of the acts of violence that justified
the issuance of the restraining order.17 The
supreme court held that this was error. Id.,
862 P.2d at 863-64.
In reaching this conclusion, the
supreme court cited cases from other
jurisdictions holding that judicial notice of
another courts factual findings may [not] be
used ... to establish ... the truth of the
matters asserted.18 This rule is based on
the fact that the truth of evidence received
in another court case (as opposed to the fact
that the evidence was offered) is not a
proper subject of judicial notice. See
Alaska Evidence Rule 201(b), which declares
that a court can take judicial notice of a
fact only when that fact [is] not subject to
reasonable dispute for one of two reasons:
either it is generally known within [the
State of Alaska], or it is capable of
accurate and ready determination by resort to
sources whose accuracy cannot reasonably be
questioned.
In a footnote to its opinion in
F.T. (footnote 13), the supreme court
discussed the possibility that, instead of
improperly relying on the issuance of the
restraining order as evidentiary proof of
disputed facts, the superior court might have
relied on the doctrine of issue preclusion to
rule that F.T. was estopped from disputing
the fact that he had committed earlier acts
of violence. However, the supreme court
concluded that it should not delve into this
question because it was by no means ...
inevitable that the doctrine of issue
preclusion would apply to the facts of F.T.,
and because none of the factual issues and
policies relevant to the proper resolution of
this issue were explored in the trial court.
Id., 862 P.2d at 864 n. 13.
This Court faces a similar
situation in the present case. It is
arguable that Jones might be estopped, under
the doctrine of issue preclusion, from
disputing the facts underlying his earlier
assault conviction. But resolution of this
question involves both issues of
constitutional law and issues regarding the
policies underlying the doctrine of issue
preclusion. And, as was the case in F.T.,
these matters were not explored in the trial
court.
That being said, we conclude that
we need not resolve the question of whether
the prior assault conviction had a preclusive
effect in Joness case because, even if it
did, that preclusive effect would be too
limited to support the admission of the
disputed evidence.
As we explained earlier in this
opinion, when Judge Volland ruled that
evidence of the earlier assault was
admissible under Evidence Rule 404(b)(4), he
expressly relied on the fact that the details
of that earlier assault, as described in the
complaint, were strikingly similar to the
assault for which Jones was being tried. In
other words, the admissibility of these
details was the underlying foundation for
Judge Vollands ruling.
But even if we assume that the
State could have relied on the prior assault
conviction for its preclusive effect, that
preclusive effect would not have included the
details of the assault described in the
complaint. As the supreme court explained in
Scott v. Robertson, the doctrine of issue
preclusion is limited to factual issues that
were necessarily decided by the earlier
judgement.19
In its appellate brief, the State
points out that, in Scott v. State,20 this
Court stated that rule more broadly; we said
that a plea of no contest is in effect a
consent that the court may proceed to accept
the allegations in the indictment as true.21
This statement suggests that, by
pleading no contest, a defendant concedes the
truth of every assertion of fact in the
charging document.
But this isolated statement does
not accurately describe the true rule. The
true rule which is quoted in Scott two
sentences before the passage that the State
cites is that a plea of no contest is an
admission of every essential element of the
offense well-pleaded in the charg[ing]
[document].22 (Emphasis added) In other
words, the true rule is the rule set forth by
our supreme court in Scott v. Robertson: the
preclusive effect of a no contest plea is
limited to the elements necessarily included
in the charge. A no contest plea is not a
concession of other, non-essential assertions
of fact contained in the affidavit supporting
the complaint.23
In Joness case, the complaint in
the prior assault case contained four
allegations of assaultive conduct: that
Jones grabbed [the victim] by the arms, that
he struck her in the face several times with
an open hand, that he struck her at least
once with a closed fist, and that he grabbed
her with both hands around the neck. But any
one of these allegations was apparently
sufficient to support Joness conviction for
assault under section 08.10.010(B)(1) of the
Anchorage Municipal Code, which merely
requires proof of an intentional or reckless
use of force or violence upon the person of
another.
Joness attorney pointed this out to
Judge Volland; she argued that even if Joness
no contest plea had a preclusive effect of
some kind, there was no way of knowing which
of these allegations formed the factual basis
of Joness conviction. Judge Volland did not
reach this issue, because he mistakenly
concluded that Joness no contest plea should
be deemed an express concession of all of
these allegations.
If we follow the rule prescribed in
Scott v. Robertson and limit the preclusive
effect of Joness no contest plea to the facts
minimally necessary to support each essential
element of the crime charged (misdemeanor
assault as defined in section 08.10.010(B)(1)
of the Anchorage Municipal Code), the
preclusive effect of Joness plea would be
confined to the assertion that Jones
recklessly used force or violence against his
former girlfriend.
Thus, even assuming for purposes of
argument that the State was entitled to claim
issue preclusion based on Joness no contest
plea in the earlier assault case, the State
would not have been able to rely on Joness
plea for proof of the facts that were crucial
to Judge Vollands ruling on the admissibility
of the prior assault under Evidence Rule
404(b)(4). In particular, the State could
not rely on the specific allegations that
Jones repeatedly struck his girlfriend with
his open hand and that he strangled her.
We therefore conclude that the
States argument regarding the issue-
preclusive effect of Joness no contest plea
is moot. Even if the State is correct in
arguing that the doctrine of issue preclusion
applies to this situation, the details of the
prior assault the details on which Judge
Volland relied when he ruled that evidence of
this assault was admissible under Rule
404(b)(4) would not be encompassed by the
issue preclusion arising from Joness
no contest plea.
The States argument that the admission of this evidence
was harmless error
Finally, the State argues that any error in
admitting evidence of the prior assault was
harmless. We disagree.
The current charge against Jones is based on
the allegation that he assaulted his then-
girlfriend, Marilyn McGregor, by striking her on
the head several times with his open hand and by
strangling her. At Joness trial, McGregor refused
to admit that Jones assaulted her in this manner,
even when she was confronted with her previous
statements to law enforcement officers and
hospital personnel. The State therefore faced the
task of convincing the jury that McGregors trial
testimony was not credible, and that the assault
had occurred as alleged.
In these circumstances, independent evidence
that Jones had committed a markedly similar assault on
a previous girlfriend striking her several times on
the head with an open hand, and strangling her was
obviously important to the States case. We can not say
that the error in admitting evidence of this prior
assault did not appreciably affect the jurys verdict.
We therefore must reverse Joness conviction.24
Conclusion
For the reasons explained here, we conclude
that the criminal complaint from Joness prior assault
prosecution was hearsay when offered to prove the facts
of the prior assault. The assertions of fact contained
in that complaint were not admissible over Joness
objection. We further conclude that the admission of
these out-of-court statements likely affected the jurys
verdict. We therefore reverse Joness conviction.
The judgement of the superior court is
REVERSED.
_______________________________
1Alaska Evidence Rule 801(d)(2), Admission by Party-Opponent,
states (in pertinent part) that an out-of-court
statement is not excluded by the hearsay rule if [t]he
statement is offered against a party and is (A) the
partys own statement, in either an individual or a
representative capacity, or (B) a statement of which
the party has manifested an adoption or belief in its
truth, or (C) a statement by a person authorized by the
party to make a statement concerning the subject.
2Miller, 617 P.2d at 517.
3Id.
4Id.
5Id. at 518.
6 Scott, 583 P.2d at 191-92 (listing the three foundational
elements) & 193 (holding that, if these elements are shown,
the criminal judgement will be deemed conclusive proof in a
civil lawsuit).
7 Scott, 583 P.2d at 190.
8 See Scott, 583 P.2d at 192-93; Burcina v. Ketchikan, 902
P.2d at 822; Lamb v. Anderson, 147 P.3d at 741-43.
9Charles Alan Wright and Andrew D. Leipold, Federal Practice
and Procedure Criminal (4th ed. 2008), 175, 2009
Supplement, p. 15.
10 Nguyen, 465 F.3d at 1129.
11 Id.
12 Id.
13 Id. at 1130.
14 Id.
15 Id.
16 Id. at 1131 (quoting Federal Evidence Rule 803(22)).
17 F.T., 862 P.2d at 860.
18 Id., 862 P.2d at 864, citing Liberty Mutual Insurance Co.
v. Rotches Pork Packers, Inc., 969 F.2d 1384, 1388-89
(2nd Cir. 1992).
19 Scott, 583 P.2d at 191-92.
20 928 P.2d 1234 (Alaska App. 1996).
21 Id. at 1237, quoting C. T. Dreschsler, Annotation: Plea
of Nolo Contendere or Non Vult Contendere, 89 A.L.R.2d
540 (1963), 2 at 547.
22 Id., quoting Charles A. Wright, Federal Practice and
Procedure Criminal (1982), 177, Vol. 1, pp. 662-64.
23 See Lashbrook v. Lashbrook, 957 P.2d 326, 330 n. 2
(Alaska 1998) (holding that a litigant was precluded
from challenging the facts which constitute the
elements of the offenses to which he pled no contest
(emphasis added)); Burcina v. Ketchikan, 902 P.2d 817,
822 (Alaska 1995) ([A] civil plaintiff is collaterally
estopped from relitigating any element of a criminal
charge to which he has pled nolo contendere. (emphasis
added)).
24See Love v. State, 457 P.2d 622, 632 (Alaska 1969) (holding
that, in cases where non-constitutional error has occurred,
the error does not require reversal if the appellate court
can reasonably conclude that the error did not appreciably
affect the jurys verdict).
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