Wassillie v. State, 021618 AKSC, S-16239

Docket Nº:S-16239
Opinion Judge:MAASSEN, JUSTICE
Party Name:ALVIN E. WASSILLIE, Petitioner, v. STATE OF ALASKA, Respondent.
Attorney:Josie Garton, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for Petitioner. Diana L. Wendlandt, Assistant Attorney General, and Jahna Lindemuth, Attorney General, Anchorage, for Respondent.
Judge Panel:Before: Stowers, Chief Justice, Maassen, Bolger, and Carney, Justices, and Eastaugh, Senior Justice. [Winfree, Justice, not participating.] BOLGER, Justice, with whom STOWERS, Chief Justice, joins, dissenting in part.
Case Date:February 16, 2018
Court:Supreme Court of Alaska
 
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ALVIN E. WASSILLIE, Petitioner,

v.

STATE OF ALASKA, Respondent.

No. S-16239

Supreme Court of Alaska

February 16, 2018

Petition for Hearing from the Court of Appeals of the State of Alaska, on appeal from the Superior Court of the State of Alaska, Court of Appeals No. A-11080, Superior Court No. 3 AN-10-01901 CR Third Judicial District, Anchorage, Michael L. Wolverton, Judge.

Josie Garton, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for Petitioner.

Diana L. Wendlandt, Assistant Attorney General, and Jahna Lindemuth, Attorney General, Anchorage, for Respondent.

Before: Stowers, Chief Justice, Maassen, Bolger, and Carney, Justices, and Eastaugh, Senior Justice. [*] [Winfree, Justice, not participating.]

OPINION

MAASSEN, JUSTICE

I.

INTRODUCTION

A jury found a criminal defendant guilty of escaping from a halfway house, and the court of appeals affirmed his conviction. We granted a petition for hearing on the issue of whether the conviction should be overturned because of the invalidity of the grand jury's indictment. The defendant argues that the indictment was based on inadmissible hearsay evidence - an incident report prepared by a staff member at the halfway house, relaying another resident's description of the defendant's conduct and introduced to the grand jury through the testimony of an uninvolved supervisor. The State counters that the incident report falls under the business records exception to the hearsay rule, and that even if it is inadmissible hearsay the conviction should not be reversed because any error in the grand jury proceeding was later made harmless by the error-free trial.

We hold that the incident report does not fall under the business records exception to the hearsay rule and should have been excluded. Because the evidence was otherwise insufficient to support the grand jury's decision to indict, the indictment was invalid and the conviction must be reversed. We decline the State's invitation to overrule our precedent requiring this result. We therefore reverse the court of appeals' decision affirming the conviction.1

II.

FACTS AND PROCEEDINGS

A. Facts

In early 2010 Alvin Wassillie was serving out the remainder of a felony sentence at the Parkview Center halfway house in Anchorage. On February 19 he left Parkview on a pass to look for a job. Around the time of his return that afternoon a staff member saw someone toss a white bag through an open window into an upstairs room. Other staff members searched the room and found a white bag with a bottle of vodka in it.

Parkview's security manager, Joshua Henry, reviewed footage from security cameras and identified Wassillie as the person who threw the bag (and presumably the vodka) into the building. Bringing alcohol into the facility is a violation of its rules, so Henry told Wassillie to wait in the lobby while he prepared a report and contacted the Department of Corrections (DOC) to take Wassillie back to jail.

After waiting several hours in the lobby, Wassillie walked out of the facility. Another inmate, Jason Lavin, reported Wassillie's departure to a staff member, and the staff confirmed from security videos and two headcounts that Wassillie had left without signing out.

Staff member Eric Dulany filled out the "Incident Report" form that is central to this case. The report related Lavin's statement that Wassillie had walked out of the facility and briefly described the staffs commencement of Parkview's escape procedures.2 The Parkview staff also completed an absence report, in which they initialed and time-stamped a series of actions taken as part of the standard escape procedures.

Police found Wassillie a few miles away several hours after he left and took him into custody. He was taken to jail and later charged with second-degree escape.3

B. Proceedings

A grand jury considered the charges in March 2010 and heard from two witnesses, neither of whom had first-hand knowledge of Wassillie's conduct. A probation officer testified that Wassillie had been serving a felony sentence while at Parkview. Parkview's director, Robert Graber, testified that when an inmate goes missing Parkview staff complete "a discharge summary report and a[n] escape report and an incident report which tells about the escape... within two hours of the... notice that a resident is missing." He testified that copies of the reports are sent to the Department of Corrections and that the originals are placed in the inmate's Parkview file, which is kept for five years. Graber testified that Parkview "regularly keep[s] and maintain[s] these [forms]." With this foundation, the State presented to the grand jury the "resident discharge summary, incident reports, intake packet paperwork, [and an] escape report."4Graber testified about Wassillie's escape from the facility based on the information he had obtained from the reports. After considering this evidence the grand jury indicted Wassillie for second-degree escape, a felony.

Wassillie was tried in December 2010, but the jury was unable to reach a verdict, and the superior court declared a mistrial. A month later Wassillie moved to dismiss the indictment, arguing in part that the prosecutor had improperly relied on inadmissible hearsay at the grand jury proceeding. The court denied the motion without comment.

Wassillie was tried again in April and May 2011. The jury heard testimony from Dulany, the Parkview employee who had prepared the incident report, and several other staff members with first-hand knowledge of Wassillie's departure from the facility. The second jury returned a guilty verdict.

Wassillie appealed. He argued to the court of appeals that it was error to deny his motion to dismiss the indictment because the indictment was based on Dulany's incident report, which was inadmissible hearsay. The court of appeals held, however, that the report "was presumptively admissible under the business records hearsay exception" and affirmed Wassillie's conviction.5

Wassillie petitioned for hearing. We granted his petition so we could consider two questions: first, whether the incident report was admissible as a business record under Alaska Evidence Rule 803(6); and second, if it was not, whether the presentation of the incident report to the grand jury was necessarily harmless because of Wassillie's subsequent conviction following an error-free trial.

III. STANDARDS OF REVIEW

"When the admissibility of evidence 'turns on a question of law, such as the "correct scope or interpretation of a rule of evidence, " we apply our "independent judgment." ' "6 We apply the same standard of review to "constitutional issues of law, " such as the scope of a party's right to indictment by grand jury.7 In exercising our independent judgment on such issues "we will adopt 'a reasonable and practical interpretation in accordance with common sense based upon "the plain meaning and purpose of the provision and the intent of the framers." ' "8 And in determining the appropriate remedy for an error in a grand jury proceeding, we will "adopt the rule of law that is most persuasive in light of precedent, reason, and policy."9

IV. DISCUSSION

Wassillie first challenges the evidence on which the grand jury decided to indict him. Of the evidence presented to the grand jury, only the incident report describes Wassillie's departure from Parkview and contains enough information, if admissible, to apprise the jury of the facts of his alleged offense; our discussion therefore focuses on this one-page document.10 Wassillie argues that the incident report was inadmissible hearsay; that without it the evidence was insufficient to support an indictment; and that because the indictment was invalid his conviction must be reversed under the rule we applied in Adams v. State.11

The State disagrees. It argues that the incident report was admissible under the business records exception to the hearsay rule;12 it also argues that even if the incident report contained inadmissible hearsay, we should not reverse Wassillie's conviction because any error in the grand jury proceeding was made harmless by his subsequent conviction by a petit jury in an error-free trial. To reach this result the State asks that we overrule contrary holdings in both Adams and Taggard v. State.13

We conclude that the incident report was not admissible under the business records exception to the hearsay rule. Because without the report the evidence before the grand jury was insufficient to support an indictment, we go on to consider whether this error was rendered harmless by Wassillie's later conviction in an error-free trial. We decide that the error was not rendered harmless; our precedent, which we decline to...

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