Alexander v. State
| Decision Date | 02 May 1980 |
| Docket Number | No. 3522,3522 |
| Citation | 611 P.2d 469 |
| Parties | Michael L. ALEXANDER, Appellant, v. STATE of Alaska, Appellee. |
| Court | Alaska Supreme Court |
Edgar Paul Boyko, Paul L. Davis, Mitchel J. Schapira, Edgar Paul Boyko & Associates, Anchorage, for appellant.
John A. Scukanec, Asst. Dist. Atty., Joseph D. Balfe, Dist. Atty., Anchorage, Susan M. Delbert, Asst. Dist. Atty., Harry L. Davis, Dist. Atty., Fairbanks, and Avrum M. Gross, Atty. Gen., Juneau, for appellee.
Before BOOCHEVER, C. J., and RABINOWITZ, CONNOR, BURKE and MATTHEWS, JJ.
This criminal and sentence appeal follows Michael L. Alexander's conviction for statutory rape, in violation of AS 11.15.120(2), 1 and his sentence of seven and one-half years imprisonment. The criminal appeal raises issues of pre-indictment delay, impeachment by prior conviction, an evidentiary ruling, prosecutorial misconduct, and failure to give a cautionary instruction on oral admissions. We find that we cannot determine whether the period of pre-indictment requires a reversal of the conviction because of the handling of the evidentiary hearings. As a result, we must remand this case to the superior court for a factual determination.
The alleged rape occurred in the late afternoon of June 17, 1976, in a borrowed automobile in Anchorage. The complaining witness, A.F., reported the incident on the day it happened. She testified that she and Alexander drove away from Burger King, where A.F. worked, stopping finally on a dirt road. 2 Alexander asked her if she wanted to "ball." According to her testimony, he then produced a knife, told her he would not hurt her, and ordered her into the back seat. Still holding the knife, he directed her to remove her pants and undergarments. He told her to remove her tampax, which she threw out the window. Sexual intercourse followed, with the knife held in Alexander's hand. They then drove back to the Burger King. No knife was ever found.
After the incident, A.F. went to a friend's house, where she was told by her brother that she was "in trouble" with her mother. Her mother arrived shortly. 3 She was angry and began "yelling and screaming" at A.F. for not being at work and for her poor report card, 4 which contained four "F's." 5 A.F. stated that her mother was "pretty strict" and that she was afraid that her father would hit her.
The mother's shouting was interrupted by the revelation from M., one of A.F.'s friends, who told her that "her daughter got raped." The police were then called. A.F. was taken to Providence Hospital for examination and laboratory tests.
Alexander's defense was based on alibi and charges of fabrication on the part of the complaining witness and her friends. He contended that A.F. and friends contrived the rape story to soften her mother's wrath.
Alexander presented evidence that he picked up his wife at work, and then he went to the circus with his wife and son at the time in question on June 17, that they went to eat after the circus, and that he went to a company meeting following the meal. He testified that he did not see A.F. on June 17.
Trial commenced on November 15, 1976. Alexander's motions to dismiss the indictment for pre-indictment delay were denied. The superior court also denied a motion for a protective order to prohibit impeachment of Alexander for a prior robbery conviction. The conviction was ultimately brought before the jury in direct examination of Alexander by defense counsel. 6 A protective order was granted, on the state's motion, to preclude introduction of A.F.'s report card and school absence record.
During his closing argument, the prosecutor displayed A.F.'s blood-stained 7 trousers to the jury. 8 According to Alexander's brief on appeal, which the state does not dispute, the pants were placed on the jury box rail and remained there until the jury retired to deliberate following the court's instructions. No objection was made. Alexander did raise this point, however, in a memorandum in support of a motion for a judgment of acquittal and, alternatively, for a new trial. The motion was denied. The issue was also specified in the points on appeal.
Counsel requested an instruction that Alexander's oral admissions be viewed with caution. The superior court refused to give such an instruction.
The jury returned a verdict of guilty, and Alexander was thereafter sentenced to imprisonment for seven and one-half years. This appeal followed.
The alleged rape occurred on June 17, 1976. Alexander was indicted on September 16, 1976, and was arrested September 21. The delay was thus approximately ninety-one days. Alexander contends that this delay denied him due process of law. 9
In Coffey v. State, 585 P.2d 514, 519-20 (Alaska 1978), we articulated the relevant factors to be considered in claims of pre-indictment delay:
Two factors are to be considered under both federal and state law: (1) the reasonableness of the delay; and (2) the resulting harm to the accused. 10
The burden of proof is on the defendant to show the absence of a valid reason for the delay and the fact of prejudice, though the state has the burden, once the issue is raised, to come forward with reasons for the delay. When reasons are advanced, the defendant must show that they do not justify the delay. 11
Alexander's contention of prejudice focuses on impairment of his alibi defense due to lapse of time. He stresses his and his witnesses' inability to remember clearly the events of June 17 and his inability to find corroborating alibi witnesses. 12
The investigating officer testified that he informed Alexander on June 28th (11 days after the alleged rape) of the contemplated charge and of the date of the alleged rape. 13 Alexander, however, testified that he first learned of the alleged rape when he was arrested ninety-one days after it had occurred. He did, however, acknowledge that he was interviewed by the investigating officer on June 28th, that the investigating officer had asked him where he was on the night of June 17th, whether he knew A.F., if he knew where she worked, and whether he had ever taken her home. He stated, however, that he thought the investigating officer was looking into possible criminal drug charges against Dale Cummings, a mutual friend of A.F. and him.
Alexander was sufficiently concerned so that he contacted an attorney, Phillip Weidner, who in turn called the investigating officer. The investigating officer, according to Weidner, refused to indicate the nature of any contemplated charges against Alexander and would only say that there was an ongoing criminal investigation.
The testimony of Alexander and of the officer was not heard by the same judge below, and thus the conflict was not resolved in a proper fact finding proceeding. 14 A conflict existed as to when Alexander was put on notice of the contemplated charges. We remand for a rehearing on this point with specific instructions that the credibility of the witnesses be determined and a finding made as to when Alexander was put on notice enabling him to prepare his defense to the charge. A single judge should hear all the testimony.
This problem of testimony heard by different judges previously came before this court in In re C.L.T., 597 P.2d 518, 521-23 (Alaska 1979). In that case, we noted case law arguably in support of the proposition that due process requires the fact finder to base its findings on testimony of witnesses personally observed if in conflict. 15 In that case, the second judge listened to the tapes of the proceedings before the first judge. Further, there was no objection to the procedure, and we declined to find plain error because the testimony was not in conflict, and thus the credibility of the witnesses was not a critical issue.
In the case at bar, the testimony was in conflict as to whether Officer Clemens informed Alexander of the charge for which he was being investigated. Since no single judge had the opportunity personally to observe and review the testimony of all relevant witnesses, a proper determination of this question has not been made, and a remand is necessary.
If, upon remand, the superior court finds that Alexander was advised shortly after the incident that he was under investigation for rape and given the date on which it allegedly occurred, then no prejudice has resulted and his conviction should stand. If, on the other hand, the superior court should determine that Alexander was not informed of the charge until his arrest, then the superior court must balance the prejudice suffered by Alexander as a consequence of the delay against the state's reasons for delaying the presentation of the case to the grand jury. Alexander shall be given the opportunity to present evidence of prejudice to his defense, and the state may present evidence to justify the delay. Then, the court must strike a balance weighing the reasonableness of the justification against the degree of prejudice to the defendant to determine if the motion to dismiss for pre-indictment delay should be granted.
For purposes of judicial economy, we consider the other issues presently before the court. Although a remand is required, its outcome will either result in a dismissal of the conviction or a finding of no pre-indictment delay. If the latter occurs, then we would again be asked to consider the remaining issues on appeal. Therefore, we have determined to consider them now so that whatever the outcome of the hearing, possible further delay in this case for a return to this court may not occur.
Alexander submits that the court's refusal to enter a protective order to prohibit his impeachment by means of his prior robbery conviction was error. At the time of trial, Alaska Criminal Rule 26(f)(1) provided:
General Rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime is...
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