Barber v. State
| Decision Date | 16 December 2016 |
| Docket Number | Court of Appeals No. A-11401 |
| Citation | 386 P.3d 1254 |
| Parties | James E. Barber, Appellant, v. State of Alaska, Appellee. |
| Court | Alaska Court of Appeals |
Douglas Miller, Law Office of Douglas S. Miller, Anchorage, and James E. Barber, in propria persona, Wasilla, for the Appellant.
Timothy W. Terrell, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge.*
In December 2010, James E. Barber was living in Sitka at the home of a friend. On the evening of December 20th, three men wearing ski masks entered the home, beat Barber with a baseball bat, and shot his friend's adult son, Matthew Hornaman, in the arm.
The three assailants—Chris Bettencourt, his son Jeff Bettencourt, and their friend Lance Smith—then left the home, got into the Bettencourts' truck, and began to drive away. Barber went to his bedroom, grabbed a .44 revolver, and ran after them. As the Bettencourts were backing up and turning around (to maneuver down the long driveway), Barber fired five shots at them. Several bullets struck the Bettencourts' truck, but the Bettencourts and Smith were uninjured, and they made their escape—although they were arrested at their residence several hours later.
Barber had a prior felony conviction, so it was illegal for him to possess a revolver, or even to live in a residence where he knew a concealable firearm was kept. See AS 11.61.200(a)(1) and (a)(10). To try to forestall any trouble, Barber dropped the revolver into a neighbor's hot tub. He later visited Matthew Hornaman in the hospital (where Hornaman was recovering from surgery), and he asked Hornaman not to tell the police that Barber had fired shots at the Bettencourts and Smith.
(Despite Barber's request, Hornaman informed the police that Barber had shot at the Bettencourts and Smith.)
Based on these events, the Bettencourts and Smith were prosecuted for assault. Barber was also prosecuted separately for several offenses: second-degree weapons misconduct (for discharging a firearm at or in the direction of the nearby dwellings), third-degree weapons misconduct (for residing in a dwelling with knowledge that a concealable firearm was kept there), witness tampering (for asking Hornaman not to tell the authorities anything about Barber's use of the revolver), and evidence tampering (for hiding the revolver in the hot tub).1 Barber was ultimately convicted of all four of these crimes.
Barber now appeals, raising several claims. For the reasons explained in this opinion, we reverse Barber's conviction for witness tampering, and we also direct the superior court to reconsider various aspects of Barber's sentence. In all other respects, however, we affirm the judgement of the superior court.
Barber's claim that the police illegally seized his mobile phone
While the police were investigating the events we have just described, a police detective interviewed Jeff Bettencourt's girlfriend, Tehsa Grutter. Grutter showed the detective a text message she had received from Barber, in which Barber bragged about having shot at the Bettencourts.
Later, this same police detective encountered Barber at the courthouse, where both men had been subpoenaed to testify before the grand jury that was considering the charges against the Bettencourts and Smith. When the detective finished testifying, he came out and saw Barber waiting to testify. The detective decided to arrest Barber because he suspected that Barber had his mobile phone in his possession, and that Barber's phone might still contain the incriminatory text message that Grutter had shown him. Barber was arrested without incident, and his phone was seized incident to that arrest. The police later obtained a search warrant for the phone.
After Barber was indicted, he asked the superior court to suppress all of the evidence derived from the seizure and ensuing search of his mobile phone. The superior court initially granted this suppression motion, ruling that the State had failed to establish that there was probable cause for Barber's arrest.
The State then sought reconsideration of the court's ruling. The State argued that Barber's motion had not challenged the existence of probable cause, but instead whether the seizure of the phone met the other requirements for a search incident to arrest. The State also asserted that, if given the proper opportunity, the State could establish that the record was "replete with probable cause" to believe that Barber had committed crimes for which he could be arrested.
The superior court agreed that, given the way Barber's suppression motion had been framed and litigated, the State had not been on notice that it was required to affirmatively prove that there had been probable cause for Barber's arrest. The court therefore granted the State's motion for reconsideration and held a supplemental evidentiary hearing to address the issue of probable cause.
Based on the evidence adduced at the supplemental hearing, the superior court concluded that the detective had probable cause to arrest Barber for second-and third-degree weapons misconduct, and that the detective acted properly when he seized the phone and then applied for a search warrant. The court therefore reversed its earlier ruling and denied Barber's suppression motion.
On appeal, Barber argues that the superior court abused its discretion when it agreed to reconsider its initial ruling.
As we have explained, the superior court granted reconsideration because it concluded that the prosecutor did not have fair notice that the State would have to litigate the existence of probable cause for Barber's arrest. Barber offers various reasons for questioning the superior court's conclusion that the State lacked fair notice, but these reasons hinge on interpreting the surrounding facts in the light most favorable to Barber's attack on the court's ruling.
The question is whether the superior court was clearly erroneous when the court concluded that the prosecutor had been misled regarding the issues to be litigated at the initial evidentiary hearing. When we review a lower court's finding under the "clearly erroneous" standard, we must view the evidence in the light most favorable to the lower court's finding.2 Viewing the record in that light, we conclude that Barber has failed to show that the superior court was clearly erroneous when the court concluded that, at the initial evidentiary hearing, the prosecutor lacked fair notice that the State would be expected to affirmatively establish that there was probable cause for Barber's arrest.
Barber also argues that even if the superior court was justified in concluding that the State lacked fair notice, this was not a proper ground for granting reconsideration.
Barber notes that Criminal Rule 42(k)(1) —the rule that lists the potential grounds for seeking reconsideration—does not expressly list "lack of fair notice regarding the issues to be litigated" among the grounds for asking a court to reconsider an earlier ruling. Because Rule 42(k)(1) does not expressly include "lack of fair notice" as a reason for seeking reconsideration, Barber argues that the superior court abused its discretion when it granted reconsideration on this ground.
We reject Barber's contention that Criminal Rule 42(k)(1) defines the outer boundaries of a court's authority to reconsider an earlier ruling. Here, the court found that the State had been misled regarding the issues to be litigated in connection with Barber's suppression motion. (Indeed, the court conceded that its own remarks during the initial evidentiary hearing might have misled the prosecutor.)
Criminal Rule 42(k)(1) may not list this situation as a ground for seeking reconsideration, but Criminal Rule 53 authorizes a court to relax or dispense with a rule in situations "where it [is] manifest ... that a strict adherence to [the rule] will work injustice". Given the circumstances here, the superior court had the authority to grant the State's motion for reconsideration and to hold a supplemental hearing on the question of whether there was probable cause for Barber's arrest.
Barber also challenges the superior court's ultimate decision on reconsideration—i.e. , the court's revised conclusion that Barber's arrest was lawful. Barber contends that even though the detective had probable cause to arrest him for felony weapons misconduct, it was nevertheless improper for the detective to make the arrest at that time, because the detective's main reason for conducting the arrest at that time was to obtain possession of Barber's mobile phone.
But as this Court explained in Nease v. State , 105 P.3d 1145, 1148–50 (Alaska App. 2005), "the fact that a police officer may have an ulterior motive for enforcing the law is irrelevant for Fourth Amendment purposes ... unless the defendant proves that this ulterior motive prompted the officer to depart from reasonable police practices." Under Nease , even when the defendant shows that the officer had some ulterior motive, a traffic stop or an arrest is not "pretextual" absent proof that the officer's decision to make the stop or the arrest "represented a departure from reasonable police practice," given the circumstances in the case. Id. at 1149.
Barber does not argue that his arrest qualified as "pretextual" under the Nease formulation. Rather, he argues that Nease was poorly reasoned, that it created a "test with no teeth", and that it should be overruled. We disagree, and we decline to overrule Nease .
Finally, Barber argues that even if Nease continues to be the governing law, we must remand Barber's case to the superior court because the judge "never purported to apply the Nease test [to the facts of Barber's case] or make any findings [under] the [Nease ] test".
It is true that the superior court never expressly mentioned Nease when it ruled on Barber's claim of...
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