Akelkok v. State
| Citation | 475 P.3d 1136 |
| Decision Date | 09 October 2020 |
| Docket Number | Court of Appeals No. A-12843 |
| Parties | Charles AKELKOK, Appellant, v. STATE of Alaska, Appellee. |
| Court | Alaska Court of Appeals |
Megan R. Webb, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Donald Soderstrom, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges.
Following a jury trial, Charles Akelkok was convicted of third-degree assault for attacking his daughter, Alicia Akelkok, after she and Annie Sergie — Akelkok's then-girlfriend — found Akelkok in bed with another woman.1 Akelkok now appeals his conviction, arguing that the trial court coerced Sergie's testimony in violation of his right to due process.
For the reasons explained in this opinion, we reject Akelkok's claim, and we affirm his conviction.
Underlying facts and proceedings
On June 2, 2016, a group of people, including Charles Akelkok and his daughter, Alicia Akelkok, were drinking in Thresa Askoak's apartment in Dillingham. Annie Sergie (Akelkok's girlfriend) was drinking in another apartment nearby.
At some point, Alicia brought Sergie to Askoak's apartment. Alicia wanted to show Sergie that Akelkok was cheating on her. After walking through the apartment to the bedroom, Alicia and Sergie found Akelkok in bed with Askoak.
When Alicia confronted her father from the bedroom doorway, Akelkok jumped out of bed and pushed Alicia into the living room, and Alicia fell backward. Akelkok climbed on top of Alicia and punched her in the face several times before putting his hand near her throat.
Sergie's son, Jessie Sergie, lived in the apartment above Askoak's and heard his mother yell his name. Jessie went downstairs to Askoak's apartment and saw Akelkok on top of Alicia with his hand near her neck. Jessie pulled Akelkok off of Alicia, and Akelkok ran back into the bedroom and jumped out the window.
When the police arrived, they searched for Akelkok behind the apartment building and found him lying on the ground a short distance away. Akelkok had a "tiny bloody nose" and blood around his mouth. He was also intoxicated. He had slurred speech, red watery eyes, and a "poor, unsteady, and swaying balance"; he also smelled of alcohol.
Alicia had swelling and bruises on her face
and some marks "where the neck meets [the] collarbone area."
A grand jury indicted Akelkok on two counts of assault — one count of second-degree assault (for intending to cause physical injury to Alicia by strangulation) and one count of third-degree assault (for recklessly causing physical injury to Alicia — i.e. , committing a fourth-degree assault — having twice been previously convicted of similar offenses within the preceding ten years).2
Akelkok's case proceeded to a jury trial. Several witnesses testified: Thresa Askoak, Annie Sergie, Alicia Akelkok, Jessie Sergie, Alicia Akelkok's mother, and the responding police officer.
The jury acquitted Akelkok of second-degree assault. But the jury found Akelkok guilty of fourth-degree assault, and in a bifurcated portion of the proceeding, found that Akelkok had two prior qualifying convictions. Accordingly, Akelkok was convicted of third-degree recidivist assault.
The facts surrounding Sergie's testimony
The central question in this appeal is whether the trial court's actions had a coercive effect on Annie Sergie's testimony and therefore violated Akelkok's right to due process. Accordingly, we will describe the background facts regarding Sergie's testimony in some detail.
Following Akelkok's arrest, the State initially charged Akelkok with assaulting Sergie. However, the State decided not to pursue this charge after Sergie failed to appear at the grand jury proceeding. Based on her failure to appear at the grand jury proceeding, the court issued a warrant for Sergie's arrest. At a subsequent hearing, the court quashed the warrant at the prosecutor's request but admonished Sergie that she needed to appear at grand jury proceedings if subpoenaed.
The State later subpoenaed Sergie as a witness for Akelkok's trial. On the first day of trial, before jury selection, the prosecutor announced that a colleague had seen Sergie at court that morning and reported that Sergie was under the influence. The prosecutor advised the judge that Sergie was supposed to return to court later in the day and asked the judge to admonish Sergie that she needed to be sober when she appeared in court the next day to testify in Akelkok's case. The trial court replied, "[I]f she shows up tomorrow when she's supposed to testify and she's wobbling around, these guys [Judicial Services] have a Breathalyzer; if she's drunk, we'll take her away."
The next day, before jury selection was completed, the prosecutor informed the court that Sergie had failed to appear. In open court, in the presence of both Akelkok and his attorney, the prosecutor asked the court to issue a civil bench warrant for Sergie. The prosecutor stated that she had spoken the previous evening with Renee Roque, Alicia Akelkok's mother, and Roque reported that Sergie did not intend to return to court under subpoena. The prosecutor left Sergie "a couple of messages" instructing her to report to court under her subpoena, and warning her that if she failed to appear, the prosecutor would request a warrant.
The judge issued the warrant but declared that he would not hold Sergie in jail once she was brought to court: "[W]hen she is found [and] brought before me ... I will assure that she stays here; I'm not going to keep her in jail, but I do want her brought before the court."
Later that morning, the prosecutor informed the court that the police thought that they had found Sergie hiding in a home. The police were at the door of the home, trying to contact the homeowner so that they could enter.
The parties completed jury selection and proceeded with opening statements. The State presented its first witness, Thresa Askoak.
At about 2:38 p.m., Sergie was brought into court. The prosecutor stated that she wished to present Sergie's testimony next, but she first wanted to determine whether Sergie was under the influence.
Over the next twenty-two minutes, the parties debated whether Sergie could testify that day and, if not, how best to secure her testimony for the following day.
Outside the presence of the jury, Sergie admitted that she had been drinking, and a portable breath test indicated that she had a breath alcohol level of .248 percent. Because of her high breath alcohol level, the trial court told Sergie that she could not testify that day and would have to come back the next morning. The court warned Sergie that she needed to appear, and Sergie promised that she would show up the next morning, sober and ready to testify.
At that point, the prosecutor interjected and asked that Sergie be taken into custody. The prosecutor understood the court's reluctance to incarcerate Sergie. But the prosecutor stated that Sergie had already been admonished, following the grand jury proceeding, "on the importance of showing up under subpoena," and that the officers who tracked Sergie down that day were "confident that they w[ould] not be able to find her again."
According to the prosecutor, Sergie had "fled [Dillingham] to avoid service" at one point prior to trial and was staying in Anchorage with a family member. After the Anchorage police "got a lead," they found Sergie. Sergie returned to Dillingham, but she refused to tell the prosecution where she was living. The prosecutor asserted that, in addition to telling Roque that she would not appear at trial that day, Sergie had also apparently posted on Facebook that she did not intend to testify.
In response, Akelkok's attorney argued that, under the Alaska Supreme Court's decision in Raphael v. State ,3 the court could not jail Sergie to ensure her appearance. The court agreed with defense counsel that Raphael applied and stated that it would not incarcerate Sergie. (As we explain later in the opinion, this broad interpretation of Raphael is incorrect; a court is not flatly prohibited from relying on incarceration as a "remedial tool" when attempting to secure a recalcitrant witness's testimony, so long as the witness is afforded due process and the court acts in a non-coercive manner.4 )
Because of the court's reluctance to jail Sergie, the court began to consider other options to help ensure Sergie's appearance the following day. The court attempted to obtain an address or phone number for Sergie, but Sergie was unable to provide a specific address, and she did not have a cell phone. The court asked the judicial service officers whether they had an electronic monitoring device that could be placed on Sergie, but they did not.
When Sergie promised to return the next morning, the court asked her how impaired she felt, noting that she had a high breath alcohol level. Sergie responded, "I'm good."
At that point, the prosecutor again interjected. The prosecutor informed the court that Sergie had "a bowl of heroin" when she was arrested by the police. Although the State had not yet filed a criminal charge, the prosecutor voiced her intention to do so.
The court acknowledged that, due to a recent change in the law, possession of heroin was not a "jailable offense," but stated that it needed "some way to assure her appearance if she's charged."5 The court therefore ordered that Sergie be taken into custody. Akelkok's attorney strongly objected to this procedure.
Sergie was taken into custody at approximately 2:48 p.m., about ten minutes after she first appeared.
However, just minutes later, the court — seemingly swayed by defense counsel's continued objections — changed its mind and asked a Judicial Services officer to bring Sergie back to the courtroom for a competency inquiry. The court engaged Sergie in a colloquy about her ability to testify and her willingness...
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State v. Gray
...appropriate circumstances to compel the witness’ presence in court without influencing his or her testimony. See Akelkok v. State , 475 P.3d 1136, 1141–42 (Alaska App. 2020) (distinguishing Raphael because witness was detained after she had already twice failed to appear to testify under su......