Peterkin v. State, 2235
| Decision Date | 01 December 1975 |
| Docket Number | No. 2235,2235 |
| Citation | 543 P.2d 418 |
| Parties | Ernest James PETERKIN, Appellant, v. STATE of Alaska, Appellee. |
| Court | Alaska Supreme Court |
Lawrence J. Kulik and Phillip P. Weidner, Asst. Public Defenders, Herbert D. Soll, Public Defender, Anchorage, for appellant.
Stephen G. Dunning, Asst. Dist. Atty., Joseph D. Balfe, Dist. Atty., Anchorage, Avrum M. Gross, Atty. Gen., Juneau, for appellee.
Before RABINOWITZ, C. J., and CONNOR, ERWIN, BOOCHEVER and BURKE, JJ.
Appellant Ernest Peterkin was indicted, tried, and found guilty of the crime of as sault with a dangerous weapon. 1 In this appeal Peterkin asserts that the superior court erred in not dismissing the indictment because the trial took place more than four months after arrest, in violation of Criminal Rule 45, 2 Alaska's speedy trial rule. Both the background of the case and the proceedings below are important in the manner that they show a violation of Rule 45 and so that they may provide a structure to avoid this problem in future cases.
For purposes of this appeal, the factual summaries of either side do not vary in material regard. Briefly, two groups were seated at adjacent tables at Rondon's, an Anchorage nightclub, in the early morning hours of March 17, 1972. One foursome included the victim, Edward Thorn, a sixfoot four, 200-pound man, and his friend Paul Lastufka, also a physically imposing person. The other foursome was composed of Peterkin, a small man of 20 who wore his long hair in a ponytail; Dennis Elstad, also slight, clothed in black leather pants and white boots, with soulder-length hair; and two other yound men.
The Thorn group, apparently amused at the appearance of Peterkin and his friends, began to ridicule them openly and loudly, calling the girls or homosexuals. At one point Thorn held the flame from a cigarett lighter near Elstad's hair. One of Thorn's friends testified that Thorn was quite drunk and in a foul mood.
Thorn and his friends left the nightclub first. Once outside, Thorn and Lastufka removed their jackets and waited near the entrance. Thorn then called to one of his drinking companions who was leaving, 'Come on back, we're going to have a knuckle session.' Soon Peterkin, Elstad and a third man started through the door. Lastufka advanced down the walkway toward Peterkin, who promptly drew his gun and fired a warning shot into the ground. Thorn then grabbed Elstad, placing a hammerlock around his neck. When Peterkin threatened to shoot Lastufka unless his friend was released, Thorn threatened to break Elstad's neck. Peterkin fired, hitting Thorn in the head and destroying a portion of his brain. As a result of this incident, Thorn cannot communicate and responds only minimally to his environment.
At trial Peterkin claimed self defense and defense of a third person; the jury evidently found the force excessive as he was convicted of assault with a dangerous weapon.
On April 18, 1973, Peterkin moved for dismissal of the charges against him, based on an asserted Rule 45 violation. He alleged that since his indictment on March 30, 1972, he had stipulated to continuances of 90 and 60 days, and that subtracting these periods, over seven months had elapsed. The state responded that its
failure to press this matter to trial resulted from the belief of J. Justin Ripley (the District Attorney) that the defendant had waived his right to speedy trial. While the state wishes to emphasize that no allegation of bad faith is made nor any such implication intended, the state does contend that its belief that no speedy trial issue existed was created and fostered by defense counsel.
Mr. Kay, Peterkin's attorney, denied that he had in any way fostered such a belief and averred that he only discovered the Rule 45 violation shortly before he moved for dismissal. The District Attorney acknowledged responsibility:
It's a total error on my part, Your Honor, because I believed, and my belief arose from my contacts with Mr. Kay, that there was no problem. . . . (T)he necessity for such a hearing to make a record and demand a waiver did not occur to me. . . . I let this case get in the shape it is because of my contacts with Mr. Kay in which, as he said, certainly not deliberately, but he himself was unaware that there was a speedy trial problem. . . .
Further, the District Attorney noted that he also contemplated settlement negotiations and wished to delay the trial until Spring for two of the State's witnesses to return from college.
The trial judge dismissed the charges, and the State petitioned for review. This court vacated the dismissal and remanded for a hearing to determine whether the physical condition of the victim was the reason for the delay, and whether this constituted good cause with Rule 45(d)(3) (a), (d)(7). 3 Specifically, the superior court was ordered to determine the probable date that the victim's physical condition had stabilized.
The hearing was held on July 20, 1973. Dr. Crawford, Thorn's treating physician, testified that from late May through July of 1972, Thorn emitted periodic verbal responses which were 'on occasion appropriate, but frequently inappropriate, but articulate.' At this point Thorn was still being fed through a tube. Dr. Crawford stated that Thorn could not possibly have testified at any time up until the present. Had the doctor been asked for a prognosis in June of 1972, he believed that
I would have probably stated that if his present rate of recovery continued that there would have been a good probability of his being able to appear in court within 6 months or so.
Unfortunately, Thorn regressed, and the utterances ceased after July. Dr. Crawford believed that if asked on October 1, he could have indicated no realistic hope of recovery:
At that point he was showing signs of what I call plateauing, that is, a sharp improvement had more or less ceased, things were-he was showing little signs of future improvement at that point. I think at that point I would have been in a position of saying that it would have been very doubtful if he would have been able to appear as a witness . . . within the foreseeable future.
The finding of the trial court on the issue of whether the disability of Thorn was the cause-in-fact of the failure to bring Peterkin to trial is somewhat ambiguous. The court found that the 'physical condition of the victim . . . was a consideration in the continuance of the case.' However, the court did not specify during what period Thorn's condition operated as a delaying factor.
The initial stipulated continuance of June, 1972, refers to Thorn's condition as a hindrance to both sides. However, there was no evidence presented at the hearing to the effect that the District Attorney entertained any expectation of Thorn's recovery after the continuance expired in mid-September. The District Attorney informed the court that he had by then formed an intention to go forward without Thorn:
District Attorney: I was assigned this case, as best I can reconstruct it, in the late fall. I think I sent in my affidavit August 15. . . . And upon making the inquiry as to Edward Thorn's condition, let us say in the late fall of 1972, I don't recall consciously making the determination that this was a triable case without him. On the other hand, I must have formulated that otherwise we would have long since dismissed the case. We were preparing to go forward hoping for the presence of Edward Thorn, but prepared, if necessary, to go forward without him. (Emphasis supplied)
Now, I submit, Your Honor, that the reasons this case was not brought on for trial-there are many considerations, but the reasons that there was no panic as far as I'm concerned is principally through my contact with defense counsel. . . . I was in a state of false security with respect to the 4-month rule; there's no question about that.
The second stipulation for a continuance, effective November 8, 1972, was entered because Mr. Kay was teaching law school for a term in Arizona; it makes no mention of Thorn's condition.
A fair reading of the record indicates that the judge did not intend his remark to be a full-blown finding that Thorn's injury was the factual cause of dealy throughout the entire period. Were it so taken, it would be devoid of evidentiary support.
No such ambiguity exists in the trial court's finding regarding the second question posed by this court in its remand, i. e., did Thorn's condition constitute good cause for delay? The trial judge found that a timely hearing on the issue of the medical realities of the victim's plight would have indicated that 'there's not much hope of having (Thorn) as a witness.'
Mr. Kay: I take it the court is then finding that the reason for the delay, or at least part of the reason for delay, was the physical condition of the victim and that this is a good cause for dealy.
The Court: Well, in the sense that if that's-if I've got to follow the language fo the rule, I'll follow it, but that's not my-I haven't found that it's good cause in the sense that people used good judgment. I found that it's reasonable to expect that people could arrive at the decision th district attorney did in this case, but I might not necessarily have done it myself under the circumstances. In other words, I am in effect saying that everybody should come in here before the 4-month rule is over and tell the court what the situtation is and they didn't do it. In other words, I've tried to-without following the language of the supreme court which I don't feel I can do under the facts in this case, I've found that I don't think under the circumstances it should be dismissed. That there was no intentional delay, there was no purposeful delay on anybody's part, they just used bad judgment.
The court subsequently amplified its holding that no good cause for delay existed:
The Court: (T)here's no question it...
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