Charliaga v. State

• Citation: 758 P.2d 135
• Decision Date: 05 August 1988
• Docket Number: No. A-1657,A-1657
• Parties: Emanuel CHARLIAGA, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Court of Appeals

Page 135

758 P.2d 135

Emanuel CHARLIAGA, Appellant, v. STATE of Alaska, Appellee.

No. A-1657.

Court of Appeals of Alaska.

Aug. 5, 1988.

Michael J. Wall, Asst. Public Defender, Kodiak, and Dana Fabe, Public Defender, Anchorage, for appellant.

David Mannheimer, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Grace Berg Schaible, Atty. Gen., Juneau, for appellee.

Before BRYNER, C.J., and COATS and SINGLETON, JJ.

OPINION

COATS, Judge.

Emanuel Charliaga was convicted, following a jury trial, of sexual assault in the first degree. AS 11.41.410(a)(1). Charliaga appeals to this court, arguing that his conviction should be reversed because Superior Court Judge Rene J. Gonzalez erroneously determined that he had voluntarily absented himself from portions of his trial. We remand to the trial court for a hearing on this issue.

Charliaga's trial began in Kodiak on February 19, 1986, before Judge Gonzalez. The case went to the jury around 1:00 p.m. on February 20, 1986. The parties stipulated that it was not necessary to sequester the jury. Charliaga waived his right to be present at playbacks. At 2:35 p.m. the jury sent a note to the judge requesting replays of several witnesses' testimony. The jury also asked to see the trooper's written report. The court responded to these requests in the presence of the state, Charliaga, and defense counsel.

The court received a second note from the jury around 9:30 p.m. and informed the attorneys. One hour later, both counsel appeared in court, but Charliaga could not be located. Under the terms of Charliaga's release, he was to remain at all times with either his attorney or his third party custodian, Mrs. Valley, his aunt. Both counsel expressed concerns about proceeding in Charliaga's absence. The court found that Charliaga had voluntarily waived his presence for the purpose of addressing the two jury questions. Defense counsel informed the court that he had no objection to responding to the jury notes, but that he disagreed with the court's finding of "voluntary absence."

In the first note, the jury requested a written transcript of the complaining witness' testimony, despite the fact that they had already listened to the playback of her testimony three times. The state and defense counsel agreed that because there was no written transcript available, and because the tape recording was available, the jury would not be able to obtain a transcript. The court sent a note to the jury, stating that the court was unable to provide a written transcript, but that the court could replay this testimony.

The second jury note indicated that a person on the jury panel had seen the defendant and the victim together the previous night at the American Legion Hall's bingo game. The jury wished to be advised how this contact affected the case. The prosecutor felt that the tone of the note indicated prejudice against the state, hence, she contemplated requesting a mistrial. Defense counsel suggested that any problems could be cured by an instruction to disregard the incident while deliberating. The court informed the jury that the case was to be decided solely on the evidence presented at trial.

After sending these responses to the jury, the state expressed concern about the defendant's absence, especially in view of the defendant's apparent violation of the "no contact" order. Judge Gonzales gave defense counsel until 11:30 p.m. to locate Charliaga and bring him into court or he would issue a bench warrant.

The court resumed session at 12:50 a.m. Defense counsel indicated that he had not seen Charliaga since around 9:00 p.m., and that neither he nor the third party custodian knew where Charliaga was. The court found that Charliaga was in violation of the conditions of release. Judge Gonzales had instructed Charliaga to remain in contact with his attorney and to be present at all proceedings. Judge Gonzalez concluded that Charliaga's failure to be present was voluntary. He therefore had the jury return the verdict in the defendant's absence. After the jury returned the guilty verdict, defense counsel polled the jury. Judge Gonzalez then issued a bench warrant for Charliaga and released the jury.

Charliaga was arrested and brought before Judge Gonzalez later that morning. Judge Gonzalez set a date for sentencing. Charliaga was never asked for nor did he ever offer any explanation for his absence.

The resolution of this case is governed by Alaska Criminal Rule 38 and Lee v State, 509 P.2d 1088 (Alaska 1973). Criminal Rule 38 provides in pertinent part:

(a) Presence: required.

The defendant shall be present at the...