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Cockerham v. Alaska (2/21/97), 933 P 2d 537
NOTICE: This opinion is subject to formal correction before
publication in the Pacific Reporter. Readers are requested to bring
errors to the attention of the Clerk of the Appellate Courts, 303 K
Street, Anchorage, Alaska 99501, phone (907) 264-0607, fax (907)
THE SUPREME COURT OF THE STATE OF ALASKA
ERNEST COCKERHAM, )
) Supreme Court No. S-7251
) Superior Court No.
v. ) 3AN-91-9247 CR
STATE OF ALASKA, ) O P I N I O N
Respondent. ) [No. 4783 - February 21, 1997]
Petition from Hearing from the Court of
Appeals of the State of Alaska, on Appeal from
the Superior Court, Third Judicial District,
Anchorage, John Reese, Judge.
Appearances: Larry Cohn, Anchorage, for
Petitioner. James Hanley, Assistant Attorney
General, Anchorage, and Bruce M. Botelho,
Attorney General, Juneau, for Respondent.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh, and Fabe, Justices.
At issue is whether a defendant's state and federal
constitutional rights were violated by the superior court's failure
to grant his motion for in camera review of alleged juvenile
records of a prosecution witness testifying at sentencing. More
generally, this case impacts a defendant's right to discovery at
II. FACTS AND PROCEEDINGS
On May 28, 1992, Ernest Cockerham was convicted of two
counts of sexual assault of sixteen-year-old R.J. (EN1) Prior to
sentencing, the State filed notice of its intent to request that
Cockerham's sentence be enhanced, based on its contention that
Cockerham had a history of similar assaultive behavior. (EN2) The
State specifically alleged that Cockerham had sexually assaulted
two young women, D.O. and R.E., prior to the assault for which he
was then being sentenced. In addition, the State gave proper
notice that D.O. and R.E. would testify at Cockerham's sentencing
Shortly before the hearing, citing Alaska Criminal Rule
16(b)(3), Cockerham moved for in camera review of R.E.'s "juvenile
R.E. is likely to have a juvenile record. If
her juvenile record contains crimes of
dishonesty those crimes would bear on the
credibility of her testimony.
Cockerham later asserted in response to the State's opposition to
his motion that there was an outstanding warrant for R.E.'s arrest
as a runaway and, moreover, that the fact she had a guardian ad
litem proved "the existence of either a CINA [Child in Need of Aid]
or a delinquency case."
The superior court denied Cockerham's motion for in
camera review, concluding that his showing that R.E. had allegedly
committed a crime involving dishonesty was insufficient to justify
a breach of her privacy interest and the public interest in keeping
the files of minors confidential. (EN4)
At the conclusion of the sentencing hearing the superior
court found by clear and convincing evidence that both D.O. and
R.E. had been sexually assaulted by Cockerham. (EN5) The superior
court thus determined that the two aggravating factors alleged by
the State - repeated assaultive behavior and similar prior
misconduct -had been established. (EN6) Accordingly, Cockerham was
sentenced to sixteen years with three years suspended. (EN7)
Cockerham appealed the superior court's failure to order
the production of R.E.'s juvenile record for in camera review and
asserted that he was entitled to resentencing. The court of
appeals rejected Cockerham's claim, concluding that whatever rights
he might have had to confront sentencing witnesses were waived when
he refused to submit to cross-examination and offered no evidence
to refute the witness' testimony. (EN8) Cockerham subsequently
petitioned this court for a hearing. We granted the petition on
the issue of whether the trial court's failure to conduct an in
camera review of R.E.'s juvenile records violated Cockerham's
III. DISCUSSION (EN9)
A. Right of Confrontation (EN10)
Cockerham's confrontation clause claim is based on the
United State Supreme Court's ruling in Davis v. Alaska, 415 U.S.
308 (1974). Davis held that the Sixth Amendment right of
confrontation requires that a criminal defendant be allowed to
impeach the credibility of a prosecution witness by cross-
examination as to bias stemming from the witness' probationary
status as an adjudicated juvenile delinquent. The court recognized
the State's interest in preserving the confidentiality of juvenile
delinquency proceedings but concluded that the right of
confrontation is "paramount to the State's policy of protecting a
juvenile offender." Id. at 319.
Cockerham suggests that Davis and its progeny stand for
the proposition that relevant information may not be withheld from
a defendant by virtue of its inclusion in juvenile files. He
argues that, in this case, the superior court could not ascertain
whether R.E.'s records contained any evidence relevant to her
impeachment without conducting an in camera review. Cockerham thus
claims that the superior court's failure to grant his discovery
motion effectively deprived him of his constitutional right of
The State disagrees with the proposition that under Davis
and its progeny Cockerham has a constitutional right to in camera
review of R.E.'s juvenile record at sentencing, and contends that
a defendant's trial right to confront prosecution witnesses does
not extend to sentencing hearings. This disagreement with
Cockerham's constitutional arguments is premised on the fact that
only attenuated protections are accorded defendants at sentencing
proceedings and, moreover, that "important policies . . . justify
distinguishing sentencing proceedings from pre-trial and trial
We need not decide the precise contours of a defendant's
confrontation right at sentencing to conclude that Cockerham's
challenge fails. The essence of Cockerham's argument is that the
superior court's refusal to review R.E.'s juvenile file potentially
deprived him of relevant impeachment evidence upon which he could
have relied in cross-examining the State's aggravating factors
witnesses. Though the range of information at a defendant's
disposal might well affect the scope of cross-examination, we
affirm the proposition that inquiries into access to and use of
relevant impeachment evidence are distinct.
The United States Supreme Court recognized the
significance of this distinction in Pennsylvania v. Ritchie, 480
U.S. 39 (1987), where it held that the federal confrontation clause
was not violated by the State's failure to disclose the contents of
a victim's juvenile file to a defendant before trial. In so doing
the court differentiated between restricting a defendant's reliance
on information he possesses to impeach a prosecution witness, and
preventing a defendant from gaining access to such information.
Ritchie clarified that the constitutional error in Davis was not
that the State kept potentially relevant information from the
defendant, but that defense counsel was prohibited from questioning
the witness about this information. (EN12) The Ritchie court
emphasized that the confrontation clause is not, and should not be
transformed into a
constitutionally compelled rule of pretrial
discovery. Nothing in the case law supports
such a view. The opinions of this Court show
that the right to confrontation is a trial
right, designed to prevent improper
restrictions of the types of questions that
defense counsel may ask during cross-
examination . . . . The ability to question
adverse witnesses, however, does not include
the power to require the pretrial disclosure
of any and all information that might be
useful in contradicting unfavorable testimony
. . . . Normally the right to confront one's
accusers is satisfied if defense counsel
receives wide latitude at trial to question
Id. at 52 (emphasis in original, citations omitted).
Cockerham has not claimed that the superior court unduly
restricted the scope of his cross-examination of R.E. at the
sentencing proceedings. It is evident that "defense counsel
receive[d] wide latitude"to question her. (EN13) We thus conclude
that whatever constitutional right to confront R.E. Cockerham may
have possessed was not violated by the superior court's denial for
in camera review.
B. Right to Due Process
In assessing the merits of Cockerham's claim that he was
denied due process, we start from the undisputed proposition that
due process requirements are applicable to sentencing procedures.
(EN14) See Williams v. New York, 337 U.S. 241, 252 n.18 (1949);
Townsend v. Burke, 334 U.S. 736 (1948). At issue in this case is
the scope of these process requirements at sentencing and, in
particular, at sentencing hearings in which the State is alleging
the presence of aggravating factors. (EN15)
In the pre-trial context, we have recognized that due
process rights protect a defendant's access to State's evidence.
In Braham v. State, 571 P.2d 631 (Alaska 1977), cert. denied, 436
U.S. 910 (1978), we analyzed a court's failure to allow the defense
pre-trial discovery of materials already inspected in camera under
the "harmless beyond a reasonable doubt"standard for
constitutional errors. In so doing, we emphasized the importance
of a defendant's right to show bias on the part of a witness
testifying against him:
[I]t is essential to a defendant's right to a
fair trial that he be allowed every
opportunity to show bias on the part of a
witness testifying against him. If Braham's
counsel was unduly limited in his right of
cross-examination to show bias on [the
witness'] part by the failure of the state to
produce the documentary material referred to,
then there must be a reversal and a new trial.
Id. at 645.
Similarly, in Ritchie the United States Supreme Court
held that due process mandates in camera review of juvenile records
for a pre-trial determination of whether information contained
therein is material to the defense of the accused. (EN16) See
Ritchie, 480 U.S. at 57-61. The Supreme Court concluded that
unless the State's nondisclosure was harmless beyond a reasonable
doubt, the defendant was entitled to a new trial if the files
contained relevant material. Id. at 58.
This reasoning, like our own in Braham, is rooted in a
recognition of the importance of discovery to a defendant's right
to a fair trial in accordance with due process. The defendant's
liberty interest at sentencing is sufficiently weighty to implicate
fairness and truth, ideals that are integral to the trial process.
Moreover, the right to be sentenced on the basis of accurate
information, always compelling, is especially so when the presence
of aggravating factors - and with it the possibility of a
substantial sentence enhancement - is at issue. (EN17)
Other courts have reached similar conclusions with
respect to the importance of discovery at sentencing. For
instance, the court in United States v. Rosa, 891 F.2d 1063 (3d
Cir. 1989), in holding the discovery provisions of the federal
Jencks Act apply to sentencing hearings, based its decision in part
on the critical nature of sentencing proceedings:
[T]he defendant's only hope was to attack the
credibility of the Government agents by
attempting to impeach them with their prior
statements and reports. Without this limited
weapon, the defendant remained virtually
defenseless. Nor could the defendant rely on a
subsequent trial to rectify any inaccurate
findings. Unlike a pre-trial hearing, which
may be followed by a trial at which the
defendants [sic] is afforded full procedural
protections, sentencing is the end of the
line. The defendant has no opportunity to
relitigate factual issues resolved against
Id. at 1078.
Similarly, in State v. Donahoe, 574 P.2d 830 (Ariz. App.
1977), the court held that a defendant had a right to discover the
written report of a police witness at sentencing, in order to
guarantee effective cross-examination. The court noted that while
the trial court need not follow strict rules of evidence at
sentencing hearings, "such hearings must be conducted consistent
with basic concepts of fairness, justice, and impartiality." Id.
In People v. Mitchell, 11 Cal. Rptr. 2d 400 (1992), the
court directed the trial judge to compel reciprocal discovery of
materials relevant exclusively to the penalty phase of a felony
murder prosecution. In holding that the statute governing
reciprocal discovery applies to sentencing, the court noted:
[T]he [California] Supreme Court has said that
general discovery principles apply to the
penalty phase. . . . No appellate court to
the present has distinguished the penalty and
guilt phases of a criminal trial for discovery
. . . .
There are cases holding that sentencing
hearings differ from trials in some respects.
For instance, strict evidentiary rules do not
always apply at sentencing hearings and rules
of procedure may differ . . . . However, the
fact that sentencing procedures may differ
from procedures at the guilt phase does not
necessarily imply anything about discovery
rights, except perhaps that they may be even
broader at the sentencing phase, given the
relaxation of traditional strict rules of
evidence at that point.
Id. at 402-04 (emphasis added, citations omitted).
We are in agreement with the general principle endorsed
by these holdings. The liberty interest implicated at sentencing
under Article I, section 6 of the Alaska Constitution requires that
in order for the guarantee of due process to be meaningful, it must
at times encompass discovery rights. (EN18) We thus conclude that
in a given factual context a denial of discovery at the sentencing
stage of a criminal proceeding can result in a violation of due
process under Alaska's constitution.
The defendant's right to access information, however, is
not absolute. In this case, Cockerham failed to make a showing
sufficient to trigger a right to discovery. (EN19) The connection
between the fact there was a warrant out for R.E.'s arrest as a
runaway and the possibility she might have a juvenile record
containing information tending to impeach her testimony that she
was sexually assaulted by Cockerham is highly tenuous. Because
Cockerham's attorney neglected to cross-examine R.E. on any subject
related to credibility, any error on the part of the superior court
in denying the motion for in camera review of the juvenile records
did not deny Cockerham due process under Alaska's constitution.
This conclusion is buttressed by the court's
characterization of the request as a "fishing expedition."(EN21)
Because Cockerham failed to make a sufficient showing that the
records he requested would contain relevant impeachment evidence,
and subsequently failed to cross-examine the witness on any matter
relating to credibility, his constitutional right to due process
under Article I, section 6 of the Alaska Constitution was not
violated by the superior court's denial of his motion.
We AFFIRM the court of appeals' decision upholding the
superior court's denial of Cockerham's motion for in camera review
of R.E.'s juvenile record.
1. The charge of second-degree sexual assault was subsequently
vacated by the court of appeals on grounds unrelated to this
2. AS 12.55.155(f) provides in part:
If the State seeks to establish a factor in
aggravation at sentencing or if the defendant
seeks to establish a factor in mitigation at
sentencing, written notice must be served on
the opposing party and filed with the court
not later than 10 days before the date set for
imposition of sentence.
Alaska Criminal Rule 32.1(c)(1), governing presentence
procedures for felony sentencings, reads in relevant part:
Within ten days after receipt of the
presentence report, each party shall file:
(A) notice of any aggravating or
mitigating factors, pursuant to AS 12.55.155
. . . on which it intends to rely, supported
by a written statement outlining, as an offer
of proof, the evidence that counsel contends
establishes each aggravating or mitigating
factor . . . ; and
(B) a memorandum giving notice of any
evidence which the party intends to rely on at
sentencing which was not previously presented
at a prior proceeding in the case . . . . If
the party intends to present additional
witnesses, the memorandum shall include a list
of these witnesses and a brief summary of
their anticipated testimony . . . .
3. Neither the State nor R.E.'s guardian ad litem has conceded
that the juvenile records at issue in this case exist. For
purposes of this appeal, however, we will simply refer to R.E.'s
juvenile records without mentioning in each instance that there may
in fact be no such records.
4. The superior court characterized Cockerham's motion as a
"fishing expedition,"noting that it was "simply speculation"to
suggest that there were any juvenile delinquency records and also
speculation that there might be an adjudication for a crime
5. AS 12.55.155(f) provides that if the State seeks to establish
a factor in aggravation, it must do so
by clear and convincing evidence before the
court sitting without a jury. All findings
must be set out with specificity.
6. AS 12.55.155(c)(8) & (21) read:
Factors in aggravation and mitigation.
. . . .
(c) The following facts shall be
considered by the sentencing court and may
aggravate the presumptive terms set out in AS
. . . .
(8) the defendant's prior criminal
history includes conduct involving aggravated
or repeated instances of assaultive behavior;
. . . .
(21) the defendant has a criminal history
of repeated instances of conduct violative of
criminal laws, whether punishable as felonies
or misdemeanors, similar in nature to the
offense for which the defendant is being
sentenced under this section[.]
7. This sentence is an upward departure from the presumptive
sentence of five years for a first sexual assault conviction. AS
8. The court of appeals stated:
In Hamilton v. State, 771 P.2d 1358
(Alaska App. 1989), this court recognized that
criminal defendants have a conditional right
at sentencing to require the State to bring
its witnesses to court so that they may be
cross-examined. Compare Williams v. New York,
337 U.S. 241, 69 S. Ct. 1079, 92 L. Ed. 1337
(1949) (a criminal defendant's Sixth Amendment
right of confrontation does not extend to
sentencing hearings) and Alaska Evidence Rule
101(c) (the Alaska rules of evidence limiting
the use of hearsay do not apply at sentencing
hearings). Under Hamilton, the State must
produce its sentencing witnesses (or prove
their unavailability and their veracity) if
the defendant "denies the allegations under
oath and submits to cross-examination".
Hamilton, 771 P.2d at 1362.
Cockerham took the stand at sentencing
and entered cursory denials of D.O.'s and
R.E.'s allegations. However, he then refused
to submit to cross-examination[.]
. . . .
. . . . Having refused to submit to
cross-examination, Cockerham could no longer
claim the right to confront D.O. and R.E.
Thus, there was no need for the superior court
to examine children's court files for evidence
that might be used in cross-examining R.E.
9. We review Cockerham's claims de novo. Though we generally
review rulings on discovery for an abuse of discretion, Gunnerud v.
State, 611 P.2d 69, 72-73 (Alaska 1980), Cockerham's constitutional
challenges raise mixed questions of law and fact. In reviewing
questions of law, we apply our independent judgment and adopt the
rule that is most persuasive in light of precedent, reason and
policy. Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979). To the
extent that this appeal involves factual questions, we will reverse
only if the superior court's factual findings are clearly
erroneous. Brosnan v. Brosnan, 817 P.2d 478, 480 (Alaska 1991).
10. A defendant's right to be confronted by witnesses against him
is conferred by both the federal and state constitutions. U.S.
Const. amend. VI; Alaska Const. art. I, sec. 11. The existence of
this federal constitutional right at sentencing proceedings is
debatable, and its scope under our state constitution limited.
See, e.g., United States v. Petty, 982 F.2d 1365, 1369 (9th Cir.
1993), cert. denied, 510 U.S. 1040 (1994); United States v. Fatico,
579 F.2d 707, 711 (2d Cir. 1978); Nukapigak v. State, 576 P.2d 982
(Alaska 1978); Pickens v. State, 675 P.2d 665 (Alaska App. 1984).
11. See Nukapigak v. State, 576 P.2d 982, 984 (Alaska 1978)
(accepting the use of verified hearsay information at sentencing);
Alaska Evidence Rule 101(c)(2) (evidence rules not applicable to
sentencing proceedings); Elson v. State, 633 P.2d 292 (Alaska App.
1981), aff'd, 659 P.2d 1195 (Alaska 1983).
12. The Ritchie court reasoned:
The lower court's reliance on Davis v. Alaska
therefore is misplaced. There the state court
had prohibited defense counsel from
questioning the witness about his criminal
record, even though that evidence might have
affected the witness' credibility. The
constitutional error in that case was not that
Alaska made this information confidential; it
was that the defendant was denied the right
"to expose to the jury the facts from which
the jurors . . . could appropriately draw
inferences relating to the reliability of the
witness." Similarly, in this case the
Confrontation Clause was not violated by the
withholding of the [juvenile] file; it only
would have been impermissible for the judge to
have prevented Ritchie's lawyer from cross-
examining the [witness].
Ritchie, 480 U.S. at 54.
13. As the court of appeals noted, Cockerham
was afforded the opportunity to confront R.E.
R.E. took the stand at Cockerham's sentencing
and was cross-examined by Cockerham's
attorney. Even though no court order
prevented him from doing so, Cockerham's
attorney refrained from asking R.E. any
question relating to her prior involvement
with the court system or the reason why she
had a guardian ad litem. That is, Cockerham
failed to take advantage of this potential
avenue for making a more specific showing that
there was a need to examine any children's
court record pertaining to R.E.
14. A defendant's right not to be deprived of liberty without due
process of law is guaranteed by both the federal and Alaska
constitutions. U.S. Const. amend. XIV, sec. 1; Alaska Const. art.
I, sec. 6.
15. As we have noted, AS 12.55.155 and Civil Rule 32.1(c) require
the State to serve written notice on the defendant if it seeks to
establish a factor in aggravation at sentencing. Criminal Rule
32.1 further requires that specific procedures be followed once
such notice has been given.
Where a defendant disputes the State's allegations, the
sentencing hearing features a fact-finding inquiry that in many
respects resembles a mini-trial. Even more fundamentally, a
defendant's liberty interest is enhanced when proof of the presence
of aggravating factors dramatically increases the likelihood the
defendant will receive a sentence in excess of the applicable
16. The State correctly notes that Ritchie and Braham concern the
scope of pre-trial discovery. While this suggestion is valid, the
State does not deny that due process applies to sentencing
proceedings, and to the extent that Ritchie and Braham shed light
on the meaning of due process, we believe their holdings are
relevant to the case at bar.
17. See American Bar Association, Standards for Criminal Justice
sec. 18-6.4-.5 (1986). The Commentary states that
the guiding principle of standard 18-6.4(b)
[governing sentencing hearings] is that the
parties should be provided "an effective
opportunity . . . to rebut all allegations
likely to have a significant effect." This
standard is intended to give the sentencing
court considerable discretion and does not
foreclose the granting of some discovery
preparatory to the sentencing hearing in a
situation, for example, where the court
recognizes that the testimony of a key witness
may have a significant effect.
Id. at 478-79.
18. As presently promulgated, our Criminal Rules of Procedure
contain the following provisions which are arguably relevant to
sentencing proceedings. Criminal Rule 16(b)(1)(A)(v) provides in
[T]he prosecuting attorney shall disclose the
following information within the prosecuting
attorney's possession or control to defense
counsel and make available for inspection and
. . .
(v) Any record of prior criminal
convictions of the defendant and of persons
whom the prosecuting attorney intends to call
as witnesses at the hearing or trial.
Subsection (b)(3) of Criminal Rule 16 further provides that
[t]he prosecuting attorney shall disclose to
defense counsel any material or information
within the prosecuting attorney's possession
or control which tends to negate the guilt of
the accused as to the offense or would tend to
reduce the accused's punishment therefor.
Criminal Rule 32.1(d)(1)(B), setting forth the procedure for
disputing information to be relied upon by the opposing party at
sentencing, requires that each party file
notice of objection to any information in the
presentence report or in any other material
the judge or opposing party has identified as
a source of information to be relief on at
sentencing on the ground that such information
is insufficiently verified or is inaccurate.
For each item a party contests as inaccurate,
that party shall submit an affidavit from the
party or another witness with personal
knowledge outlining the testimony the witness
is prepared to provide to refute or to explain
the allegation, or a notice that the party has
served or attempted to serve a subpoena upon
the person who provided the contested
information and intends to examine the person
at the presentencing hearing.
19. See Dana v. State, 623 P.2d 348 (Alaska App. 1981) (holding
that defendant was not entitled to discovery of an undercover
officer's personnel file). The court stated:
[Defense counsel] did not make any showing
that the material he wanted from the personnel
file would be more than a fishing expedition
for unspecified material for impeachment. This
is not a sufficient showing to require the
trial court to locate the personnel file in
the middle of trial, review it in camera, and
determine if any information had relevance.
Id. at 355. In so holding, the court of appeals relied in part on
the reasoning of People v. Gissendanner, 399 N.E.2d 924 (N.Y.
1979), which stated that discovery of confidential files
has been denied in cases in which the
defendant failed to demonstrate any theory of
relevancy and materiality, but, instead,
merely desired the opportunity for an
unrestrained foray into confidential records
in the hope that the unearthing of some
unspecified information would enable him to
impeach the witness.
Id. at 928 (citations omitted).
20. In Franzen v. State, 573 P.2d 55, 56 (Alaska 1978), we
similarly held that a defendant was "foreclosed from attacking the
court's reliance"on hearsay contained in his presentence report,
"having failed to exercise his right to present any materials or
call any witnesses to contradict, explain or otherwise rebut that
information." Id. at 56. See Nukapigak v.State, 562 P.2d 697, 701
(Alaska 1977), aff'd 576 P.2d 979 (Alaska 1978).
21. The superior court further stated:
[T]his is a motion to gain access to any
juvenile delinquency records which may exist
concerning the potential witness R.E. As I
understand the filings, it's simply
speculation . . . that there are juvenile
proceedings. And if there are juvenile
proceedings, [it is speculation] that [they]
may have involved [a delinquency]
adjudication, and if there is an adjudication,
that it might have involved a charge involving
dishonesty which would make it possibly
available for impeachment purposes of the
witness. And furthermore, speculation that
[the proceeding] might involve anything else
that would be relevant to [R.E.'s]