Klockenbrink v. State

• Decision Date: 31 July 1970
• Docket Number: No. 1149,1149
• Citation: 472 P.2d 958
• Parties: Kenneth Warren KLOCKENBRINK and Clayton Sprague Copsey, Appellants, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 958

472 P.2d 958

Kenneth Warren KLOCKENBRINK and Clayton Sprague Copsey, Appellants, v. STATE of Alaska, Appellee.

No. 1149.

Supreme Court of Alaska.

July 31, 1970.

Robert C. Erwin and Brian J. Brundin, Hughes, Thorsness, Lowe, Gantz & Clark, Anchorage, for appellants.

Harold Tobey, Dist. Atty., Benjamin O. Walters, Jr., Asst. Dist. Atty., Anchorage, for appellee.

Before BONEY, C. J., DIMOND, RABINOWITZ and CONNOR, JJ., and OCCHIPINTI, Superior Court Judge.

CONNOR, Justice.

Appellants were found guilty of commercial fishing for salmon during a closed period, of commercial fishing in closed waters, and of escaping from a peace officer while under lawful arrest. From an affirmance by the Superior Court, appellants bring this appeal.

On the evening of Sunday, July 28, 1968, Fish and Game enforcement officers Stinson and Chinander, student stream guards hired for the summer, were on stake-out at the Kalsin Bay area near Kodiak, watching for possible violations. At about 8:30 p.m. a gray boat came into view which Stinson observed with binoculars and sketched. Stinson and Chinander observed the activities of the boat for an hour or so, later moving from their position to obtain a better view of the boat. Although the boat was lost to their observation for a short period of time, at about 10:15 p.m. they regained sight of the vessel with net and corks out. Because of the weather, windy and rainy with a low overcast, and the orientation of the boat, the two officers were unable to read the name or official number of the boat. Under the prevailing light conditions, visibility was limited to 300-400 yards.

Stinson proceeded to the beach, at the same time shouting to the vessel that he was with the Department of Fish and Game and was placing the crew under arrest. Although he requested that a skiff be sent ashore to pick him up, the crew responded by ignoring his request and preparing po leave. Stinson was thus forced to swim out to the boat to effect an arrest.

After he was aboard the crew did not cooperate with him. They threw all of the fish in their nets overboard, ignored his request to return him to where his partner was waiting, refused to let him use the radio, threw away the fish he had been keeping as evidence, and put him ashore at a spot some distance from where Chinander was waiting.

Once back on shore, Stinson returned, with the aid of a passing motorist, George Hunt, t the spot where he and Chinander had left their car. Both officers then proceeded to the home of their superior, Officer Wightman, arriving there about 3:00 a.m. After reporting the circumstances and giving the sketch of the vessel to Wightman, Stinson left to initiate an air search for the vessel. He identified the Norman J. from the air as vessel he had sketched and boarded, and reported this to Officer Wightman. Later in the morning, Wightman and Stinson located the boat returning to Kodiak and boarded it. Appellants were positively identified as those who had earlier been arrested, and they were advised of their rights. They were subsequently taken to jail and the Norman J. was seized.

Appellants were arraigned on July 29, 1968, at that time being represented by Mr. Roy Madsen for purposes of the arraignment only. A 24-hour continuance was granted to allow entering a plea. At the same time appellants were released on their own recognizance. Because appellant Klockenbrink's boat was under sizure, and because one of the state's witnesses was going to be out of state during the middle part of August, trial was set for the 6th of August. This setting was made in spite of the fact that appellants informed the judge that they would be represented by Wendell P. Kay of Anchorage, and that there might possibly be some difficulty in his preparing for trial on such short notice. The trial judge also stated that he would probably not grant a continuance, even if requested by Mr. Kay. On August 2, 1968, a motion was submitted to the court requesting the At trial, the composition of the jury was objected to because no commercial fishermen were available to sit on the jury. The objection was denied. Appellants also moved for a new trial based on newly discovered evidence, which motion was also denied. An appeal was taken to the superior court which affirmed the decision of the district court.

release of the vessel. Motion was also made for a continuance, with counsel for the appellants stipulating to the taking of a deposition from the state's witnesses, who would not be available later. At this same special hearing, the district attorney suggested that perhaps a bond could be obtained in lieu f holding the vessel during the pendency of the proceedings. He also stated that he had no objections to the granting of a continuance. The trial judge ruled that he would allow a continuance of the trial date until August 19th, but refused to release the Norman J. As a result, appellants' counsel refused the continuance, not wanting the boat out of operation for that long a period of time during the middle of the fishing season. On August 5, 1968, the court granted appellants a continuance until the 7th in order to secure new counsel, since Mr. Kay was scheduled to defend another case at that time. On August 7th, Mr. Brundin appeared as counsel for appellants and requested a continuance, which was denied. The reason given by the judge for the denial was that the two state's witnesses would be absent from the state at a later date.

Appellants raise four claims of error on appeal. First, they contend that the trial court erroneously permitted the installing of an improperly selected jury; second, that the court had improperly ruled that no illegal search incident to the arrest had been made in violation of AS 16.05.180; third, that the procedure used to identify appellants was violative of their constitutional rights as enunciated in the Wade-Stovall line of cases; and lastly, that the trial court was in error in denying appellants a continuance to allow them representation by the counsel of their choice.

THE JURY PANEL

In prosecuting their appeal, appellants contend that their constitutional rights were violated when the trial judge allowed the impaneling of a jury which failed to include any commercial fishermen.

Because this case is remanded with instructions to grant appellants a new trial, on other grounds, we need not dispose of this issue.

THE SEARCH AND SEIZURE ISSUE

Appellants claim that the testimony of Stinson about his observations when he boarded the Norman J. should have been suppressed. Their contention, simply stated, is as follows AS 16.05.180 ¹ provides that before a search without a warrant can be effected by those empowered to enforce fish and game laws, the person making the arrest must provide the owner of the property or object to be searched with a signed statement setting forth the reasons for the search. The legislative history, according to appellants, makes it clear that the legislature intended to set standards for search and seizure which are more strict than those required by the United States Supreme Court. Because Stinson faied to conform to the statutory requirements, the AS 16.05.180 is not applicable in the instant case because no search was conducted. Stinson was on board effecting a legal arrest after personally observing the commission of a misdemeanor. ³ It is generally held that the mere observation of items which are in plain view or which are open and apparent, is not a search. ⁴ Consequently, evidence based on such observations is admissible so long as the observing officer was legally in the position where the observations were made. ⁵

ensuing search and seizure was illegal and any evidence obtained therefrom is inadmissable. We cannot agree. ²

In United States v. Lee, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202 (1927), the Supreme Court considered a situation similar to the one herein. The Coast Guard came alongside a motor boat, the boatswain looked the boat over with a search light, and found some cans of alcohol on board. The boatswain's testimony was objected to because it was obtained as the result of an illegal search and seizure. In determining that the evidence was admissible, the court stated:

'But no search on the high seas is shown. The testimony of the boatswain shows that he used a searchlight. It is not shown that there was any exploration below decks or under hatches.' 274 U.S. at 563, 47 S.Ct. at 748.

Because we have determined that no search occurred, it is unnecessary to deal with appellants' other contentions involving the propriety of the 'search'.

THE IDENTIFICATION QUESTION

The appellants argue that their identification by Stinson was made under circumstances so unnecessarily suggestive and conducive to mistake that they were deprived of due process of law. Furthermore, they argue that their identification was a 'critical' stage of the proceedings so that they were entitled to counsel or a Miranda warning at the identifying confrontation.

In their brief, appellants rely on United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), and related cases in support of their claim. The Wade and Gilbert cases concerned line-up procedures after an accused had been taken into custody. They held that such procedures are a 'critical stage' of the accusatory proceedings at which a criminal defendant has the right to the presence of counsel. Stovall concerned the identification of a single suspect by a victim lying critically wounded in a hospital. The majority of the Court decided this case on the ground that the Wade and Gilbert rules should not be applied retroactively. We recognize that the constitutional validity of an identification of a suspect must be determined by the totality of circumstances surrounding it,...