Marquez v. State, 011619 AKCA, A-11925

Docket Nº:A-11925
Opinion Judge:MANNHEIMER Judge
Party Name:JAMES MARTIN MARQUEZ, Appellant, v. STATE OF ALASKA, Appellee.
Attorney:Callie Patton Kim, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and James E. Cantor, Acting Attorney General, Juneau, for the Appellee.
Judge Panel:Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge ALLARD, dissenting in part.
Case Date:January 16, 2019
Court:Court of Appeals of Alaska
 
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JAMES MARTIN MARQUEZ, Appellant,

v.

STATE OF ALASKA, Appellee.

No. A-11925

Court of Appeals of Alaska

January 16, 2019

UNPUBLISHED See Alaska Appellate Rule 214(d)

Appeal from the Superior Court, Third Judicial District, No. 3AN-12-3395 CR Anchorage, Jack W. Smith, Judge.

Callie Patton Kim, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.

Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and James E. Cantor, Acting Attorney General, Juneau, for the Appellee.

Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. [*]

MEMORANDUM OPINION

MANNHEIMER Judge

James Martin Marquez was convicted of murder for shooting and killing his girlfriend, Carla Webb.

Before trial, Marquez's defense attorney filed a sealed, ex parte motion asking the superior court to secretly order all health agencies and health care providers who had provided medical services to Webb to produce copies of any records tending to show that she might have undergone an abortion. The defense attorney also asked the court to order these agencies and health care providers to give the medical records directly to the defense attorney, rather than producing them to the court.

The superior court denied this motion, and Marquez argues on appeal that this was reversible error. For the reasons we explain in this opinion, we conclude that Marquez failed to properly preserve his claim for appeal.

At trial, Marquez raised the defense of heat of passion. On appeal, Marquez asserts that when the prosecutor addressed the issue of heat of passion in his summation to the jury, the prosecutor misdescribed the concept of "serious provocation". But Marquez's attorney did not object to the prosecutor's statement, so Marquez must now show plain error. For the reasons explained here, we conclude that the prosecutor's misstatement of the law did not constitute plain error; that is, it did not undermine the fundamental fairness of Marquez's trial.

Lastly, Marquez appeals his sentence of 75 years to serve. We conclude that this sentence is not clearly mistaken.

Marquez's ex parte pre-trial request for secret production of Webb's medical records

Marquez was charged with murder after he shot his girlfriend, Carla Webb, in the head while they were in the bedroom of their apartment. Marquez would later testify at his trial that Webb had been pregnant with their child, and that he shot Webb after she told him that she had undergone an abortion. Based on this testimony, the jury was instructed on the defense of heat of passion (which would mitigate the crime to manslaughter). However, the jury rejected this defense and convicted Marquez of murder.

Before the trial, at a time when Marquez's proposed heat of passion defense was known only to Marquez's defense attorney, the defense attorney filed a sealed, ex parte motion asking the superior court to secretly order all health agencies and health care providers who had provided medical services to Webb to produce copies of any records tending to show that Webb might have undergone an abortion.

The defense attorney also asked the court to order these agencies and health care providers to give the medical records directly to the defense attorney (rather than following the normal procedure of producing them to the court), so that the State would remain unaware of the defense attorney's request.

In his motion for production, the defense attorney asserted that these medical records (if they existed) would be relevant to "a potential theory of defense". However, the defense attorney did not inform the court what this theory of defense was.

The superior court denied the defense attorney's ex parte motion, based on the court's conclusion that it was improper for this request for medical records to be litigated ex parte. The court declared that it would decline to consider the defense attorney's request "absent service of the motion [on] the State."

In other words, the court did not reach the merits of the defense attorney's contention that the medical records (if they existed) would be material to Marquez's defense. Instead, the court merely ruled that the defense attorney was not entitled to litigate these matters in secret.

The defense attorney then filed a motion for reconsideration (again, under seal and ex parte). In this motion, the defense attorney once more asked the superior court to order all of Webb's health care providers to produce her medical records. But this time, the defense attorney's request was worded differently: he told the court that he wanted the records produced "for in camera review" - presumably, in camera review by the court.

(The defense attorney did nothing to call the court's attention to this change, and it is unclear whether the superior court understood that, in this "motion for reconsideration", the defense attorney was requesting a different form of relief. On appeal, Marquez argues this issue as if the defense had always been seeking judicial screening of the medical records before any of them were disclosed to the defense attorney - and the State does not object to this inaccurate characterization of the record.)

In the defense attorney's motion for reconsideration, he identified - for the first time - the specific reason why he was seeking Webb's medical records. The defense attorney asserted that if Marquez killed his girlfriend upon discovering that she had recently undergone an abortion, this might constitute the "serious provocation" required to support a claim of heat of passion.

But the defense attorney did not present this assertion as an argument for why Webb's medical records...

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