State v. Hannagan, 2667
| Decision Date | 09 February 1977 |
| Docket Number | No. 2667,2667 |
| Citation | 559 P.2d 1059 |
| Parties | STATE of Alaska, Appellant, v. Daniel HANNAGAN, Appellee. |
| Court | Alaska Supreme Court |
Before BOOCHEVER, C. J., and RABINOWITZ, CONNOR, ERWIN and BURKE, JJ.
The State of Alaska appeals from the decision of the trial court rendered on a Criminal Rule 35(b) post-conviction relief proceeding. This appeal raises the initial procedural question of the state's right to appeal from post-conviction relief proceedings, as well as the substantive issue of the defendant's right to be present during the playback of trial testimony to the jury. We hold that the state may appeal a Criminal Rule 35(b) post-conviction relief determination. We further hold that the request for and the playback of testimony are stages of trial; that the defendant's absence constituted error; that the defendant's attorney may not waive this right for the defendant; but that the error within the context of this case was harmless beyond a reasonable doubt.
The defendant, Daniel Hannagan, was indicted on a charge of larceny in a building 1 for stealing a caribou-legged lamp from the office of a Glennallen filling station on or about July 5, 1974. At trial, Mr. Hannagan did not deny taking the lamp after he stopped at the station to buy gas, but attempted to defend against the larceny charge by showing that he lacked the necessary specific intent to commit the offense. Mr. Hannagn contended that he was given permission to take the lamp by William McCormick, a person who was present at the service station and who allegedly told Hannagan that he was an employee.
McCormick testified that he was a customer at the gas station, but he had seen Hannagan with a woman and a boy in the office of the station, but that the woman and the boy had left the office before McCormick entered. The woman and the boy-Hannagan's wife and a young relative-apparently testified at trial that they had heard McCormick give Hannagan permission to take the lamp. This would have been possible only if they had been in the office at the same time as Hannagan. McCormick testified that after entering the office, he was questioned by Hannagan and answered that he was waiting for his car and was not an employee of the station. He denied having said or done anything to indicate to Hannagan that he could take the lamp.
Testimony from Stephyn Strunk, the 14-year-old gas station attendant, placed McCormick inside the office of the service station at the time Hannagan entered and left the office. This could raise an inference that McCormick was in the office when the woman and boy were there. Strunk also testified that McCormick was standing near the cash register, a likely place for a station employee to stand. McCormick stated at trial that he stood behind the soft drink machine in the office, although other portions of his testimony might suggest that he was behind the cash register.
If the jury had believed Strunk's testimony as to McCormick's presence and position in the office, they might have given weight to Hannagan's defense of a permissive taking of the lamp. In his final argument, counsel for Hannagan emphasized that Strunk's testimony contradicted McCormick's on the issues of whether McCormick was inside the office the entire time that Hannagan was in the office and whether McCormick was standing near the cash register.
Before final argument, both counsel and the defendant agreed on a sealed verdict procedure. Following closing argument, Mr. Hannagan returned to his home in Wasilla, a one-hour drive from Anchorage. His attorney told him that he would not need to be in court until the next morning and that if any problems arose, he would be notified by telephone.
The jury interrupted its deliberation at 9:25 p. m. to request a replay of the testimony of Strunk and McCormick. Both counsel were called and arrived at the courthouse. Hannagan was not called, although is attorney knew huow to contact him by telephoning his next-door neighbor. The trial judge suggested delaying the proceedings until the next morning when Hannagan could be present. Hannagan's attorney attempted to waive his client's right to be present at the playback in these words:
MR. FOX: Your Honor, for the purposes of the record, I don't think it will be necessary. I think this matter is some thing that doesn't require the presence of the defendant, and I would waive any problems in that respect and would agree to the jury hearing that particular tape.
The prosecutor and the court then agreed to proceed without the defendant.
Strunk's testimony was played back until, after approximately 45 minutes of direct and cross-examination, the jurors indicated that they had heard enough. The remainder of Strunk's testimony and all of McCormick's testimony was not played. The jury then retired and published a verdict of guilty the next morning.
Following the verdict, Hannagan brought a proceeding for post-conviction relief, pursuant to Criminal Rule 35(b). Hannagan testified that he had been available at home on the right of the jury's deliberation and would have wanted to be present at the playback. He stated that he did not know that a playback might take place and had not given consent to his counsel to waive his presence. Hannagan testified that he was not informed of the playback the next morning, and his attorney did not recall ever talking to Hannagan about the jury listening to tapes of the testimony.
In an affidavit submitted at the post-conviction hearing, Hannagan's trial attorney stated that he felt the jury's request could very well have been favorable to the defendant since it focused on the conflicting testimony of two state witnesses which supported defendant's theory of the case. Hannagan's attorney felt that the sooner the jury heard the tape replay, the better it would be for his client, and, further, that Hannagan's presence during the replay offered no particular advantage.
The court at the post-convinction relief hearing concluded that Hannagan's attorney did not make the waiver of Hannagan's presence as a strategic decision occurring during the heat of the trial. It found that the waiver by Hannagan's attorney was ineffective and that Hannagan's involuntary absence at the playback violated defendant's rights under Criminal Rule 38. Consequently, the conviction was vacated by the trial court, even though it found the state's case against Hannagan 'overwhelming.' From this reversal, the state appeals.
Hannagan obtained reversal of his conviction via post-conviction relief under Criminal Rule 35(b). 2 The initial question before the court is whether the state may appeal from an adverse decision of the trial court uner Criminal Rule 35(b). 3
Hannangan argues that a proceeding under Criminal Rule 35(b) should be considered a proceeding in the original criminal case. The state's right of appeal in criminal cases is limited to testing the sufficiency of indictments or informations and to sentence appeals. 4 The state claims that a Rule 35(b) proceeding is a separate civil proceeding in the nature of a habeas corpus action or a proceeding under 28 U.S.C. § 2255, the federal post-conviction relief statute.
We decline to adopt Hannagan's argument that a Criminal Rule 35(b) proceeding is part of the original criminal case and therefore hold that the state may appeal. Various reasons mandate this conclusion.
First, we look to the wording of Criminal Rule 35 itself. Section (j) states:
(j) Review.
A final judgment entered under this rule may be reviewed by the supreme court on appeal brought either by the applicant or the state within 40 days from the entry of judgment. (emphasis added)
This language indicates that the state's right of appeal is broader than the more limited rights of the state to appeal from the criminal trial itself.
This construction is bolstered by other provisions of Criminal Rule 35. Criminal Rule 35(c) 5 states that the post-conviction remedies set out in the rule do not affect and are not a substitute for remedies of direct review of the sentence or conviction. Criminal Rule 35(h) 6 provides that all rules and statutes applicable in civil proceedings are available to the parties. Rule 35(h) also states that an order made by the court in a post-conviction relief proceeding is a final judgment.
These sections indicate that a Rule 35(b) proceeding is separate from the original criminal proceeding, is governed by civil procedure, results in a final judgment and may be timely appealed by the state as well as the applicant.
Additional support for our conclusion is found in the case law addressing the function of Criminal Rule 35 and its federal analogs. In Merrill v. State, 457 P.2d 231 (Alaska 1969), this court suggested that a Criminal Rule 35 proceeding was similar in nature to a habeas corpus proceeding. 7 A habeas corpus proceeding is an independent civil proceeding. 8 In Donnelly v. State, 516 P.2d 396, 398 (Alaska 1973), we stated that Criminal Rule 35, like the federal statutory post-conviction relief remedy, 28 U.S.C. § 2255, was designed to supplant the more cumbersome traditional habeas corpus remedy. 9 A proceeding under 28 U.S.C. § 2255 is similar to an independent civil proceeding, and the government has the right to appeal an adverse determination. 10
We therefore hold that a post-conviction relief proceeding instituted by the defendant under Criminal Rule 35(b) is similar to an independent civil proceeding such as a habeas corpus proceeding for purposes of the state's ability to appeal, and that consequently the state has the right to appeal in this case. 11
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