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opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
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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
DAVID W. GUTHRIE II,
Appellant, Court of Appeals No. A-10354
Trial Court No. 1KE-08-390 Cr
v.
STATE OF ALASKA, O P I N I O N
Appellee.
End of Caption No. 2251 January 15, 2010
Appeal from the District Court, First Judi
cial District, Ketchikan, Kevin G. Miller,
Judge.
Appearances: Sharon B. Barr, Assistant
Public Defender, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellant.
Nicholas Polasky, Assistant District
Attorney, and Stephen R. West, District
Attorney, Ketchikan, and Daniel S. Sullivan,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Bolger, Judges.
MANNHEIMER, Judge.
In May 2008, David W. Guthrie II was charged with
fourth-degree assault, and he was released on bail pending his
trial in the Ketchikan district court. While on bail during the
months of May, June, July, and August, Guthrie appeared in court
for several pre-trial proceedings including a proceeding on
August 1st, at which time the district court scheduled Guthries
trial for August 20th, with a pre-trial calendar call scheduled
for August 15th.
(A calendar call is a court proceeding at which the
parties apprise the court | either (1 | ) that they are ready for the scheduled trial, or (2 | ) that the trial will not be necessary because the case has been resolved, or (3 | ) that the trial must be rescheduled for some reason. | ) |
| Guthrie did not come to court for the August 15th calendar call, and District Court Judge Kevin G. Miller issued a bench warrant for Guthries arrest. However, this warrant was apparently never served. Six days later, on August 21st, Guthrie appeared in court with his attorney and asked Judge Miller to quash the warrant. The prosecutor did not oppose this request. Judge Miller quashed the warrant, and the judge apparently allowed Guthrie to remain at liberty under the same bail release conditions as before, although he advised Guthrie to keep in better contact with his attorney. | ||||
| Based on this incident, the State filed an additional charge against Guthrie: misdemeanor failure to appear, AS 12.30.060(2 | ). This statute makes it a crime for a misdemeanor defendant to knowingly fail[] to appear before a court or judicial officer as required. The State charged that Guthrie knowingly failed to appear in the district court for his calendar call on August 15th. | |||
| After the State indicated its intention to consolidate the trial of the fourth-degree assault and failure to appear charges, Guthrie asked the district court to sever the charges. The district court denied this request. | ||||
| Guthrie went to trial in November 2008, and the jury convicted him of both offenses. | ||||
| In this appeal, Guthrie argues that the district court should have granted his request for separate trials of the two charges. In addition, Guthrie argues that the evidence presented at his trial is legally insufficient to support his conviction for failure to appear. | ||||
| We agree with Guthrie that the evidence is not sufficient to support his conviction for failure to appear. The States evidence showed that Guthrie was present in court when Judge Miller scheduled the calendar call for August 15, 2008, and the States evidence showed that Guthrie did not appear in court for that calendar call, but the State presented no evidence that Guthrie was required to attend the calendar call. Thus, the evidence was insufficient to prove that Guthrie knowingly failed to appear in court as required. | ||||
| With regard to the remaining issue on appeal, we conclude that we need not decide whether it was proper to join the assault charge and the failure to appear charge in a single trial. Rather, we conclude that even if the joinder of the two charges was improper, there is no reason to believe that this error affected the jurys verdict on the assault charge. We therefore affirm this portion of the district courts judgement. | ||||
Why we conclude that the
evidence presented at Guthries trial is not sufficient
to support his conviction for failure to appear
As we explained above, the failure to appear
statute, AS 12.30.060, defines this offense as
knowingly fail[ing] to appear before a court or
judicial officer as required. The State alleged that
Guthrie knowingly failed to appear for his calendar
call on August 15th. To prove this charge, the State
had to present evidence (1) that Guthrie was required
to attend the calendar call on August 15th, and (2)
that he made a deliberate, conscious decision not to
attend. See Moffitt v. State, 207 P.3d 593, 595
(Alaska App. 2009).
Even assuming that the States evidence was
sufficient to establish the second element (that
Guthrie made a deliberate, conscious decision not to
attend the calendar call), the State failed to present
any evidence on the first element (that Guthrie was
required to attend the calendar call in the first
place).
The States evidence relating to the failure
to appear charge was cursory. The prosecutor presented
the testimony of the Ketchikan Clerk of Court, who had
no personal knowledge of the events in Guthries case,
but who instead described the contents of the log notes
kept by an in-court clerk during the district court
proceedings of August 1st and August 15th. (The log
notes themselves were not introduced into evidence.)
According to the court clerks description of
the log notes, (1) Guthrie was present in court on
August 1st when Judge Miller scheduled the calendar
call in Guthries case for August 15th, and (2) Guthrie
did not come to court for this calendar call. Here is
the relevant portion of the clerks testimony on direct
examination:
Prosecutor: Looking ... at Plaintiffs
[Exhibit] 1 do you know what that document
is?
Clerk: This is a certified copy of a
log note. ... [A] log note is [a document]
thats created by the in-court clerks. ...
It is [the clerks] interpretation of what
happened on [the] record in the courtroom.
. . .
Prosecutor: Okay. ... [And] what case
is that document referring to? Is it
referring to State versus David Guthrie?
Clerk: According to the [document], it
is.
Prosecutor: And on what date did [the]
hearing [reflected in the log note] take
place?
Clerk: On August 1, 2008.
Prosecutor: Was Mr. Guthrie present [in
court on August 1st], according to what you
see in the [log] note there?
Clerk: The log note indicates that he
was present.
Prosecutor: Did were future court
dates set?
Clerk: Yes.
Prosecutor: What was the next court
date?
Clerk: Calendar call for 8/15/08.
Prosecutor: And whats a calendar call?
Clerk: Its where the parties get
together to see if the trial is going to go.
Prosecutor: Okay [to] see if, in fact,
there will be a jury trial?
Clerk: Correct.
Prosecutor: When was the jury trial set
in this case?
Clerk: For 8/20.
Prosecutor: Okay. So you need a
calendar call [on] one day to see if youre,
in fact, going to have the jury trial thats
scheduled for a few days later?
Clerk: Thats correct.
Prosecutor: And what date was the
calendar call set for?
Clerk: 8/15.
Prosecutor: Okay. Turning to
Plaintiffs [Exhibit] 2, [does] that reference
the case [of] State of Alaska versus David
Guthrie?
Clerk: Yes, it does: the same case
number.
Prosecutor: And ... what date [is
reflected in] that log note?
Clerk: It was created on 8/15.
Prosecutor: Was Mr. Guthrie present?
Clerk: The log note indicates he was
not.
Prosecutor: Thats all the questions I
have.
In other words, the States case
(viewed in the light most favorable to
upholding the verdict) consisted solely of
the facts that Guthrie was present at a court
proceeding on August 1st, at which time Judge
Miller scheduled a calendar call for August
15th, and that Guthrie did not return to
court on August 15th.
We express no opinion on whether
the law allows a jury to infer, solely from
the fact that a defendant failed to attend a
scheduled court hearing of which the
defendant had knowledge, that the defendant
made a deliberate, conscious decision not to
come to court. We need not decide this issue
because the State failed to present any
evidence on another element of the crime:
that Guthrie was legally required to attend
the August 15th calendar call.
As we explained earlier, the
calendar call in Guthries case was an
administrative device designed to give the
judge advance warning if the parties believed
that the trial should not go forward as
scheduled. As described in the Clerk of
Courts testimony, at this calendar call, the
parties either announced themselves ready to
proceed with the trial on the scheduled date,
or they explained why they believed that a
trial would not be needed, or why the trial
should be rescheduled.
Given the limited purpose of the
calendar call in Guthries case, it appears
that no one expected matters of substance to
be discussed, much less decided, at this
calendar call. Indeed, neither the public
defender nor the district attorney assigned
to Guthries case attended the August 15th
calendar call. Instead, both of these
attorneys arranged for colleagues in their
respective offices to appear at the calendar
call on their behalf. We further note that
calendar calls are not among the proceedings
listed in Alaska Criminal Rule 38(a) that
require the defendants presence.1
In short, this calendar call was
not the type of proceeding where one could
simply assume that the defendants personal
presence was required.
We concede the possibility that
Judge Miller might have ordered Guthrie to
attend the calendar call either by
specifically directing him to be present in
court on August 15th for the calendar call,
or by issuing a pre-trial order that required
Guthrie to attend all court proceedings
unless he was specifically excused from
attending. But if Judge Miller did issue
such an order, the jury heard nothing about
it.
The State presented no evidence
regarding Guthries obligation (or lack of
obligation) to attend the August 15th
calendar call. The State simply presented
evidence that Guthrie did not attend. Thus,
the State failed to offer any evidence on an
essential element of the failure to appear
charge: the element that Guthrie failed to
appear in court as required.
At the oral argument in this
appeal, the State suggested that even though
it failed to present any affirmative evidence
concerning Guthries obligation to attend the
calendar call on August 15th, it would
nevertheless be reasonable for the jury to
infer, from the fact that Guthrie attended
other court proceedings in his case, that he
was obligated to attend the calendar call.
We do not agree.
Even in the absence of legal
compulsion to attend a court proceeding, a
defendant might come to court because they
are interested in observing the proceedings
in their case. But the mere fact that the
defendant has attended one or more earlier
proceedings does not give rise to a legal
obligation to attend all later proceedings.
The State could be arguing that one
might reasonably infer, merely from the fact
that Guthrie attended several earlier court
proceedings in his case, that Guthrie must
have been legally required to attend all of
the court proceedings in his case. This
argument founders on the fact that the State
introduced no evidence to suggest that
Guthries earlier court appearances arose from
a legal obligation to attend. Because the
jury had no evidentiary basis for concluding
that Guthries earlier court appearances
demonstrated the existence of a legal
obligation to attend those earlier
proceedings, the jury had no basis for
concluding, based solely on Guthries
attendance at these earlier proceedings, that
Guthrie had a legal obligation to attend any
other court proceedings.
For these reasons, we conclude that
the evidence introduced at Guthries trial was
not sufficient to support his conviction for
failure to appear.
Whether the joinder of the two charges in a single
trial prejudiced Guthrie
Although we have concluded that Guthries
conviction for failure to appear must be reversed, we
must also decide whether the jurys consideration of the
fourth-degree assault charge was rendered unfair by the
fact that the jury heard the failure to appear charge
in the same combined trial.
On the issue of whether a subsequent charge
of failure to appear can be joined for trial with the
initial charges brought against the defendant, the
State argues that any failure to appear charge is
necessarily connected together with the initial
charges, and thus joinder is always proper under Alaska
Criminal Rule 8(a)(3). We are not sure.
Many judicial decisions suggest or hold that,
in circumstances like Guthries case, it is improper to
jointly try a failure to appear charge with the other
charges that were initially filed against a defendant.
These court decisions indicate that joinder is improper
when the only connection between the failure to appear
charge and the initial charges is that the failure to
appear charge is based on the defendants failure to
attend a court proceeding involving the initial
charges. Under this approach, joinder of the failure
to appear charge is appropriate only when the
circumstances surrounding the defendants failure to
appear affirmatively suggest that the defendant was
actively attempting to avoid prosecution for the
initial charges (and thus manifesting a consciousness
of guilt).
See United States v. Gabay, 923 F.2d 1536,
1539-40 (11th Cir. 1991); United States v. Ritch, 583
F.2d 1179, 1181 (1st Cir. 1978) (both construing
Federal Criminal Rule 8(a), which is substantially
similar to Alaska Criminal Rule 8(a)); Brown v. United
States, 718 A.2d 95, 102 (D.C. App. 1998); State v.
Weathers, 451 S.E.2d 266, 269 (N.C. 1994); State v.
Wittwer, 166 P.3d 564, 566 (Or. App. 2007) (all
construing state joinder rules identical or
substantially similar to Alaska Criminal Rule 8(a).
But see State v. Bryant, 950 P.2d 1004, 1010 (Wash.
App. 1998) (upholding joinder of a failure to appear
charge even though the circumstances did not indicate
an intent to flee or otherwise avoid prosecution).
Among the jurisdictions that follow the
majority rule (i.e., jurisdictions that do not allow
joinder of the failure to appear charge unless the
circumstances of the defendants failure to appear
demonstrate an intent to flee or otherwise avoid
prosecution), we have found no case in which joinder
has been upheld under facts analogous to the facts of
Guthries case where a defendant who had attended
earlier court proceedings missed a single court
appearance but then, within days, voluntarily returned
to court with his attorney.
Nevertheless, we need not decide whether
joinder of the failure to appear charge was proper in
Guthries case. We conclude that, even assuming the
joinder was improper, Guthrie suffered no prejudice.
When a trial court commits error by
improperly joining charges for trial, or by failing to
grant severance of those charges, the error will
require reversal of the defendants convictions only if
the defendant makes a particularized showing of
prejudice.2 To establish the required prejudice, a
defendant must show that the jurys ability to fairly
decide the individual charges [was] substantially
impaired [because] the jury hear[d] evidence relating
to other charges at the same time.3
It is not enough for the defendant to show
that evidence of the various charges was not cross-
admissible,4 nor is it enough for the defendant to
assert in general terms that the trial of several
charges at once might suggest to the jurors that the
defendant has a criminal disposition.5
Yet these are the only types of prejudice
that Guthrie asserts. He contends that evidence of the
assault and evidence of the failure to appear was not
cross-admissible, and that the joinder of these two
charges therefore created an appreciable risk of actual
prejudice. According to Guthrie, [a] jury hearing the
underlying facts of the assault charge would be more
likely to find that someone who would drink and come
home and harass his family would also be irresponsible
enough to knowingly miss a court date and, conversely,
a jury deliberating on the assault charge would be more
likely to find guilt if they knew that the defendant
subsequently missed a court hearing.
These claims amount to an assertion that the
jury might infer that Guthrie had a criminal
disposition from the fact that Guthrie was charged with
two separate crimes. But that risk is always present
when offenses are joined for trial, and it is not
sufficient, standing alone, to establish prejudice.6
Here, there was no real risk that the jurys
consideration of either count would be prejudiced or
confused because of the joinder. The two offenses
involved discrete factual scenarios, and the trial
judge instructed the jury to decide the charges
separately.
Moreover, we are unpersuaded by Guthries
claim that evidence of his failure to appear must have
substantially impaired the jurys ability to fairly
decide the assault charge. As we have explained, the
State presented only cursory evidence of Guthries
failure to appear: the brief testimony in which the
Ketchikan Clerk of Court described the log notes from
August 1st and August 15th. While it is possible to
imagine cases in which a jury might unfairly infer a
defendants consciousness of guilt based on the
defendants failure to appear at a court hearing,7
Guthries case presented no such risk. The prosecutor
never asked the jury to infer consciousness of guilt
from Guthries failure to appear. And Guthrie elicited
testimony that he was present in court for his other
court appearances in the assault case, including an
appearance six days after the missed calendar call.
Thus, even assuming that Judge Miller erred
when he allowed the State to join the two charges for
trial, Guthrie has failed to make the particularized
showing of prejudice that would entitle him to reversal
of his assault conviction.
Conclusion
Guthries conviction for failure to appear is
REVERSED. Guthries conviction for assault in the
fourth degree is AFFIRMED.
_______________________________
1Alaska Criminal Rule 38(a) states: The defendant shall be
present at the arraignment, at the preliminary hearing,
at the time of plea, at the omnibus hearing, and at
every stage of the trial, including the impaneling of
the jury and [the] return of the verdict, and at the
imposition of sentence, [unless] otherwise provided in
[section (b) or (c) of] this rule.
2 Richards v. State, 451 P.2d 359, 361-62 (Alaska 1969);
Newcomb v. State, 800 P.2d 935, 943 (Alaska App. 1990)
(citing Cleveland v. State, 538 P.2d 1006, 1008-09 (Alaska
1975)).
3 Sharp v. State, 837 P.2d 718, 725 (Alaska App. 1992).
4 Newcomb, 800 P.2d at 943 (Severance of charges is required
when a lack of cross-admissibility creates an appreciable
risk of actual prejudice from joinder. A lack of cross-
admissibility, however, does not inevitably result in
prejudice. The likelihood of prejudice must be evaluated on
a case-by-case basis.) (citation omitted).
5 Richards, 451 P.2d at 362.
6 Richards, 451 P.2d at 362.
7 See State v. Haag, 578 P.2d 740, 746 (Mont. 1978).
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