Adams v. State
| Decision Date | 09 August 1979 |
| Docket Number | No. 3067,3067 |
| Citation | 598 P.2d 503 |
| Parties | Phillip J. ADAMS, Appellant, v. STATE of Alaska, Appellee. |
| Court | Alaska Supreme Court |
Before BOOCHEVER, C. J., and RABINOWITZ, CONNOR, BURKE and MATTHEWS, JJ.
Phillip J. Adams was convicted of mayhem at the conclusion of a bench trial. On appeal he maintains that the speedy trial requirements of Rule 45, Alaska R.Crim.P., were violated; and he challenges the sufficiency of the evidence before the grand jury and at trial. We hold that the grand jury had insufficient evidence to indict Adams and reverse his conviction.
On August 28, 1975, Adams was arrested by an Anchorage police officer, Eugene Parmeter. The arrest was made after Parmeter saw Adams strike and kick Harry O'Neil during a street brawl. Adams was subdued at gunpoint, handcuffed, and taken to police headquarters. After being questioned about the incident, he was released. No formal charges were filed at that time.
On January 7, 1976, a complaint was filed charging Adams with mayhem under AS 11.15.140. The complaint was based upon the incident that occurred on August 28, 1975. Adams was arrested on the complaint on January 13, 1976, and an indictment was returned by the grand jury on January 23, 1976. Adams' court trial began on March 15, 1976, and he was found guilty as charged. This appeal followed.
On March 12, 1976, Adams moved to dismiss the indictment upon the ground that the delay between his arrest and trial required dismissal under Rule 45, Alaska R.Crim.P. The superior court denied his motion. 1 We hold that the trial court correctly denied the motion.
Rule 45, Alaska R.Crim.P., provides in part:
(b) Speedy Trial Time Limits. A defendant charged with either a felony or a misdemeanor shall be tried within 120 days from the time set forth in section (c).
(c) When Time Commences to Run. The time for trial shall begin running without demand by the defendant, as follows:
(1) From the date the defendant is arrested, initially arraigned, or from the date the charge (complaint, indictment, or information) is served upon the defendant, whichever is first. . . .
(g) Absolute Discharge. If a defendant is not brought to trial before the running of the time for trial, as extended by excluded periods, the court upon motion of the defendant shall dismiss the charge with prejudice. Such discharge bars prosecution for the offense charged and for any other lesser included offense within the offense charged.
Initially, we must determine when Adams' rights under Rule 45 attached. He argues that he should have been brought to trial within 120 days after his arrest on August 28, 1975. The state contends that the speedy trial requirements of Rule 45 did not attach on August 28 because Adams was released at that time without the filing of a formal charge.
The state relies on Yarbor v. State, 546 P.2d 564 (Alaska 1976). In Yarbor we held that the defendant's constitutional right to a speedy trial did not attach at the time he was questioned by police concerning alleged lewd acts toward a child, I. e., the time "when the state (had) acquired sufficient evidence to charge (the defendant) with a crime." We held that such right attached only after he was "formally accused" by the later filing of a complaint. Id. at 566-67. Our opinion, however, clearly indicates that, for purposes of the right to speedy trial, one is also "formally accused" when arrested: "(W)e now join our sister states in holding that the right to a speedy trial does not attach before the defendant becomes formally accused that is, the subject of a filed complaint Or an arrest." Id. at 567 (emphasis added; footnotes omitted).
The case at bar differs from Yarbor in two major respects. First, Yarbor involved the speedy trial guarantee found in article I, section 11 of the Constitution of Alaska, which, unlike Rule 45, contains no express provision that it attaches upon the "arrest" of the defendant. Second, although not clearly stated in our published opinion, it is quite apparent that the defendant in Yarbor had not been arrested prior to service of the formal complaint. Adams, on the other hand, was apprehended at gunpoint, then handcuffed and transported to police headquarters for questioning as a result of the acts forming the basis for the mayhem charge. We think it beyond question that Adams was "arrested" on August 28, 1975, within the meaning of Rule 45. See AS 12.25.050; 12.25.160; Richardson v. State, 563 P.2d 266, 268 n.2 (Alaska 1977).
For the foregoing reasons, we hold that the state's reliance on Yarbor is misplaced and that Adams' rights under Rule 45 attached at the time of his arrest on August 28, 1975.
Since Adams was not brought to trial within 120 days from the date of his arrest, he was entitled to a dismissal of the charge against him, with prejudice, unless the time for his trial was extended because of "excluded periods." Rule 45(g), Alaska R.Crim.P. Subsection (d) of Rule 45 provides that periods of delay resulting from certain events "shall be excluded in computing the time for trial," including "periods of delay for good cause." Rule 45(d)(7), Alaska R.Crim.P. The state contends that, because of uncertainty as to the physical condition of the victim, Harry O'Neil, the delay in filing a formal charge and proceeding to trial was for "good cause" and should thus be excluded in computing the time for trial under the rule. We agree.
Following the altercation on August 28, 1975, O'Neil was taken to a hospital. At that time he was unconscious. Officer Parmeter was advised later in the day by Dr. Alex Dubelman, an attending physician, that O'Neil had suffered injury to an artery in his brain and had little or no chance to live. Parmeter testified before the grand jury on January 21, 1976, that O'Neil thereafter remained "in a comatose state" and that he was not expected to live much longer. At trial Dr. Richard Anschuetz testified that he treated O'Neil following his admission to the hospital until his discharge on September 22, 1975. According to Dr. Anschuetz, O'Neil had a fractured skull accompanied by intracranial bleeding and swelling of the brain. Holes were drilled in the skull to relieve pressure caused by the trauma suffered, but such efforts apparently failed to relieve the symptoms. On the day of his discharge O'Neil's mental state had not improved, and he was developing complications, including secondary softening of the brain tissue caused by the blood surrounding it. O'Neil was seen again by Officer Parmeter at the time of trial. Parmeter described his condition at that time as follows:
(I) saw Mr. O'Neil in bed in what I would term . . . a partial fetal position with the hands in . . . a frozen claw-like manner. Face was contorted, mouth out of shape. There was apparatus up his nose to take off saliva drainage and it appeared (that there was) saliva around the mouth. . . .
O'Neil made a sound, but "it wasn't speech," although it appeared to Parmeter that O'Neil's eyes followed another person that was in the room.
Given the foregoing, there can be no doubt that from the time of Adams' arrest on August 28, 1975, to and including the date upon which the complaint was filed, January 7, 1976, there was good reason to believe that O'Neil might die at any moment. The state had to proceed in one of two ways: it could bring an immediate, non-homicide charge, such as mayhem, or it could delay the filing of any charge, as it elected to do, in order to determine whether O'Neil's injuries would prove fatal. We think the state was entitled to delay the filing of a specific charge for a reasonable period of time and that such period of delay must be excluded in computing the time for Adams' trial under Rule 45. 2
Accordingly, we hold that the period from Adams' arrest on August 28, 1975, to and including the date of filing of the complaint, January 7, 1976, must be excluded in computing the time for Adams' trial under Rule 45. We do so in the belief that this period is excludable as delay incurred "for good cause," within both the letter and spirit of Rule 45(d)(7), Alaska R.Crim.P. 3 Since fewer than 120 Additional days elapsed between Adams' arrest and the trial, there was no violation of his right under Rule 45.
Adams maintains that hearsay testimony was improperly presented to the grand jury that indicted him and that such testimony should invalidate the indictment. We agree.
Adams brings to our attention two instances where Officer Eugene Parmeter testified to the grand jury about statements made to him by out-of-court declarants. Specifically, Officer Parmeter repeated statements made by Dr. Alex Dubelman, who treated the victim on his admission to the hospital, regarding the nature of the injury, its possible cause, the condition of the victim, and his prognosis for recovery. Officer Parmeter also related statements made to him shortly before his grand jury appearance by an unidentified hospital spokesperson about the victim's condition at that time and his limited chances for survival.
On February 9, 1976, Adams made a timely motion to dismiss the indictment on the ground that critical portions of the testimony before the grand jury were hearsay presented without compelling justification. The motion was denied.
In Alaska, hearsay testimony which is not subject to a recognized exception to the hearsay rule may be presented to the grand jury only upon a showing of "compelling justification." Rule 6(r), Alaska R.Crim.P. 4 We have held that, for purposes of interpreting Rule 6(r), "compelling" is to be equated with "necessity." State v. Gieffels, 554 P.2d 460,...
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