Hicks v. State, Court of Appeals No. A–11826

• Court: Court of Appeals of Alaska
• Writing for the Court: Judge ALLARD, writing for the Court.
• Citation: 377 P.3d 976
• Parties: Nathaniel Hicks Jr., Appellant, v. State of Alaska, Appellee.
• Decision Date: 24 June 2016
• Docket Number: Court of Appeals No. A–11826

377 P.3d 976

Nathaniel Hicks Jr., Appellant
v.
State of Alaska, Appellee.

Court of Appeals No. A–11826

Court of Appeals of Alaska.

June 24, 2016
Rehearing Denied July 8, 2016

Evan Chyun, Assistant Public Advocate, and Richard Allen, Public Advocate, Anchorage, for the Appellant.

Donald Soderstrom, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.

Before: Mannheimer, Chief Judge, and Allard, Judge.

OPINION

Judge ALLARD, writing for the Court.

Nathaniel Hicks Jr. was convicted of four counts of first-degree unlawful contact for telephoning his girlfriend, N.A. Hicks made these phone calls from jail, where he was awaiting trial on a charge that he assaulted N.A.

On appeal, Hicks argues that Alaska courts have no power to prohibit a defendant in pretrial detention from contacting the alleged victim of the crime. According to Hicks, courts have the authority to prohibit a defendant in pretrial detention from engaging in this contact only if the victim separately petitions the court to issue a domestic violence protective order under Alaska Statute 18.66.

For the reasons explained here, we reject Hicks's argument.

Facts and proceedings

On July 20, 2013, Hicks was arraigned on a misdemeanor charge of assaulting his then-girlfriend, N.A. At Hicks's arraignment, the magistrate judge orally set conditions of bail, including the condition that Hicks not contact N.A. The judge later formalized her bail order in a written order that set out Hicks's conditions of bail release. Those written bail conditions also contained the provision that Hicks have “[no] direct or indirect contact” with N.A.

However, Hicks was never released on bail. Instead, he remained in pretrial detention for several months. On October 25, 2013, Hicks called N.A. four times from jail, leaving messages on her voice mail. Based on these phone calls, the State charged Hicks with four counts of first-degree unlawful contact.¹

377 P.3d 978

Before trial, Hicks's attorney attacked these charges on several bases. The defense attorney argued, in passing, that Alaska courts have no authority to impose no-contact orders on defendants who are in pretrial detention. But the attorney also argued that Hicks had not received constitutionally adequate notice that the no-contact provision of the bail order applied to him when he was still in jail. The district court ruled against Hicks on these claims, and the case proceeded to trial.

At trial, the main issue before the jury was whether Hicks acted with the required culpable mental state—that is, whether he recklessly disregarded the circumstance that his phone calls to N.A. violated the court's no-contact order.

Hicks's attorney argued that Hicks had not acted in reckless disregard of the order because he reasonably believed that the order only applied after he was released on bail. The prosecutor argued that Hicks knew or should have known that the no-contact bail order also applied to him in jail, and that even if he honestly believed that the no-contact provision did not take effect until he was released on bail, Hicks's belief was unreasonable.

The jury convicted Hicks of all four counts of first-degree unlawful contact. He now appeals.

Why we reject Hicks's claim that the judge had no authority to order him not to contact N.A. while he was in pretrial detention

As discussed in Chief Judge Mannheimer's concurring opinion, there are significant problems with the way this case was prosecuted and argued to the jury. But Hicks does not raise any of these issues in this appeal. Instead, Hicks's sole claim on appeal is that, as a general matter, Alaska courts have no authority to order a defendant in pretrial detention to refrain from contacting the alleged victim of the crime.

Hicks points out that the Alaska legislature has enacted statutes expressly authorizing trial courts to issue no-contact orders as a condition of a defendant's bail release or as a component of a defendant's sentence.² But the legislature has enacted no equivalent statute expressly authorizing courts to impose no-contact orders on defendants in pretrial detention.

Hicks argues that, in the absence of a statute expressly authorizing the court to issue a no-contact order to a defendant in pretrial detention, the courts have no power to impose no-contact orders on pretrial detainees. Thus, Hicks contends, the judge's no-contact order was void, and he could not lawfully be convicted of violating it.

Hicks's argument rests on the erroneous assumption that the courts of this state have only the authority expressly conferred on them by statute. But this Court and the Alaska Supreme Court have repeatedly recognized that “in the absence of a governing statute or constitutional provision, the judiciary retains the power to declare the common law and to promulgate supervisory rules of practice to govern litigation.”³

We relied on this principle in Dobrova v. State.⁴ In that case, the sentencing court refused to release the defendant on bail pending the defendant's sentence appeal; the court concluded that it had no power to grant bail release to the defendant because the pertinent statute spoke only of bail for defendants who appeal their convictions , not their sentence.⁵ Even though the bail statute did not expressly authorize courts to grant bail

377 P.3d 979

release in sentence appeals, this Court held that courts had the common-law power to grant bail to defendants who appealed their sentences, and that, because the Alaska legislature had not limited that common-law power by statute, Alaska courts retained that power.⁶ On petition for hearing, the supreme court affirmed our decision—emphasizing again that, in the absence of a statute granting or denying the right to bail pending a sentence appeal, “there exists no basis for concluding that the legislature intended to limit the inherent authority of the court.”⁷

This same principle of common-law authority governs our decision in Hicks's case. As the Court of Appeals for the Ninth Circuit has explained, courts have the inherent power to protect victims and witnesses—a power that stems from the “indisputably ... broad powers [of the courts] to ensure the orderly and expeditious progress of a [criminal] trial.”⁸ This inherent judicial authority is not unlimited: it must be exercised in a manner that does not explicitly conflict with constitutional or statutory law,⁹ and that does not defeat the policies embodied in those laws.¹⁰ But unless the legislature removes or limits this common-law judicial power, courts may continue to exercise it.

Here, there is no statute that either grants or denies Alaska courts the authority to impose no-contact orders on defendants in pretrial detention. Thus, Alaska trial courts retain their inherent authority to issue such no-contact orders to protect victims and other witnesses.¹¹ Moreover, the Alaska legislature directly recognized this inherent authority in 2013 when it amended AS 11.56.750 to...