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OPINION
RABINOWITZ, Justice.
I. INTRODUCTION
This appeal centers on the application of the notice requirement of the Differing Site Conditions clause found in a contract between appellant Neal & Company, Inc. (NCI) and appellee City of Dillingham (City). Ap-pellee CH2M Hill (Hill), the City's engineer on the project, is involved in this appeal primarily because it acted as the City's representative on the project.
NCI claims that it encountered difficulties in excavation during the project because of unexpected soil conditions, that it gave notice of these unexpected conditions to Hill (and thus constructively to the City), and that therefore it is entitled to assert a claim under the Differing Site Conditions clause. The City and Hill claim that no notice of a differing site condition was given. The superior court ruled on partial summary judgment that NCI did not give adequate notice of a differing site condition.
NCI also appeals the superior court's denial of its motions for leave to amend its complaint, for continuance of the trial, and for disqualification of thé trial judge.
II. FACTS
In February 1987 the City solicited bids for the construction of a sewerage facility. The project included two lagoon ponds. The lagoons were to be dug into a bluff outside of Dillingham. Interested bidders received a set of drawings and a volume containing bidding requirements, contract forms, conditions of the contract, and construction specifications, along with a "Geotechnical Data Summary." The geological survey and the data summary, as well as all technical specifications for the project, were completed by Hill, the City's engineer and on-site representative for the project.
The first dig in the construction of the lagoons was to be a wedge-cut into the bluff from the surface down to an elevation of forty-seven feet. After the first dig down to the forty-seven foot level, the second dig would begin, consisting of the excavation of two ponds down from the flat area created by the first dig. The pools were to be eighteen feet deep, reaching an elevation of twenty-nine feet at their lowest point.
The data summary stated that there was a layer of peat containing some silt infilling extending four feet to eight feet below the original ground surface. Below the peat was a layer of sand and silty sand interbedded with layers of silt extending about six to twelve feet below the peat zone. Below that, the data summary described the remaining depth of the excavation as "fairly uniform to the remaining depth of the borings, showing a layer of stiff-to-hard clay having low-to-medium plasticity." Regarding the clay layer, the data summary specified: "Occasional samples contained clay with gravel and sand suspended in the clay matrix, indicating that the clay unit may be a glacial till. No distinct bedding or layers of coarse grained material were found in the clay unit." The data summary went on to describe the process by which the lagoons could be constructed:
The most attractive aspect of constructing the lagoons in the lower clay zone of the bluff is that they will not have to be lined. Also, native materials will not have to be recompacted to form the dikes, as the dikes can be constructed by carving the lagoons out of the bluff and leaving the clay intact around them. Construction concerns for this configuration are primarily slope protection against seepage and removal and disposal of the excavated material.
A set of contract documents was sent to NCI. On April 1,1987, bids were opened and NCI was declared the low bidder at $2,059,-991. NCI began the excavation on June 6, 1987. Excavation of the first dig, down to the forty-seven foot elevation of the pond surface, was completed. Work was suspended in October 1987. The second dig, excavation of the pond prisms, began when the ground froze. Excavation was completed by April 20,1988.
During the summer of 1987, while excavating the first dig, NCI encountered water bubbling through sand lenses in the excavation. Randy Mattoon, NCI's project superintendent, discussed with Tony Neal, president of NCI, the possibility of the existence of sand lenses impairing the integrity of the lagoon, which would allow sewage to escape. Mattoon also discussed the issue of water permeable sand lenses with Bob Richie, Hill's representative. Ken Green, a Hill geotechnical engineer, was scheduled to visit the project the week of July 27,1987.
NCI contends that Green's visit was scheduled after and because of the Mattoon-Riehie conversation regarding the sand lenses. The City and Hill contend that Green's visit had already been scheduled.
During Green's visit, a test pit was dug in each of the pond prisms, and a soil sample was taken from one of the pits. Green's field notes, taken at the time the pits were dug, indicate that at the level where the lagoons were to be dug, he saw "clayey silt Slightly plastic Blue Gray Moist slightly Blocky structure, stiff to n. stiff[.]" This level (two to nineteen feet down from the forty-seven foot elevation of the surface of the lagoon) had been described in the Data Summary as "a layer of stiff-to-hard clay having low-to-medium plasticity."
During this time, the consistency of the soil was causing difficulties in NCI's excavation. The soil in the lagoon area turned into a sticky mud, creating problems with excavation and transportation. The consistency of the soil, and the difficulty of excavating it, form the basis of NCI's Differing Site Condition claim.
During the 1988 phase of the excavation, water infiltration continued to cause problems. In October 1988, NCI advised Hill that it was considering legal action. NCI then filed suit.
III. SUPERIOR COURT PROCEEDINGS
. During the course of these proceedings, numerous claims and cross-claims were filed. The following are relevant to this appeal.
On March 29, 1990, NCI filed a second amended complaint, which added NCI's Differing Site Condition claim to the lawsuit as the sixth cause of action, and added what NCI interprets as a defective specifications claim as the seventh cause of action. In May, NCI filed a substitute second amended complaint. Judge Beverly Cutler granted the motion to amend on August 6, 1990. In January 1991, the City, seeking indemnity from NCI's claims, filed a third-party complaint against Hill.
In November 1991, Hill filed a motion for partial summary judgment based on the limitation of liability and indemnity clause in its contract with the City. The superior court ruled for Hill. The City filed a petition for review, which this court accepted and has since decided in City of Dillingham v. CH2M Hill Northwest, Inc., 873 P.2d 1271 (Alaska 1994).
In April 1993, NCI moved for partial summary judgment, seeking to establish the sufficiency of its notice of differing site conditions. The City moved for summary judgment against both NCI and Hill. In October 1993 the superior court granted partial summary judgment to the City and dismissed NCI's sixth and seventh causes of action. The court subsequently denied NCI's motion for reconsideration.
Meanwhile, in November 1993, NCI filed a motion for leave to amend its complaint and a motion to continue the trial. The superior court denied these motions. The superior court also denied NCI's motion to reconsider the denial of its motion to amend.
On January 26,1994, NCI filed a motion to disqualify the judge. The next day, Judge Cutler refused to recuse herself, and referred the motion to the presiding judge for assignment. The motion was assigned to Judge Peter A. Michalski, who denied the motion for disqualification on January 31.
On February 3, 1994, the parties reached a settlement, reserving to NCI the right to appeal the rulings which are now before us: the dismissal of NCI's sixth and seventh causes of action, the denial of NCI's motions for leave to file a third amended complaint and for continuance of the trial, and the denial of the motion to disqualify Judge Cutler.
IV. DISCUSSION
A. The Summary Judgment Dismissing NCI's Sixth and Seventh Causes of Action
Resolution of this summary judgment turns on the interpretation and application of the Differing Site Conditions clause which, at the time the contract for this project was made, was required by the Environmental Protection Agency in contracts for projects with EPA funding. 40 C.F.R. § 33.1030 (1986). NCI filed a motion seeking to establish that oral communications with Hill constituted actual notice sufficient to meet the notice requirements in the Differing Site Condition contract clause. Paragraph 4(a) of the contract requires that the notice be in writing. Though there is no claim that NCI provided timely written notice of any differing site condition, case law establishes that under certain circumstances timely actual notice, even in the absence of written notice, will be considered sufficient notice under the clause. See, e.g., Brechan Enter. v. United States, 12 Cl.Ct. 545 (1987) ("[N]otice does not need to be in any specific format; it need only show the existence of the condition.").
Therefore, the appeal of this summary judgment requires an interpretation of what qualifies as the minimum necessary notice under the clause, and, secondly, of whether the acts alleged here satisfy that minimum.
In Brinderson Corp. v. Hampton Rds. San. Dist., 825 F.2d 41 (4th Cir.1987), a contractor had problems with wet soil conditions which forced it to incur increased costs. The court stated that "[generally, when the owner has actual or constructive notice of the conditions underlying the claim and an opportunity to investigate, that is sufficient." Id. at 44. Similarly, NCI's notice to the City, though not in writing, will be considered sufficient if it was clear and it alerted or should have alerted the City to the fact that NCI believed it had encountered differing site conditions.
NCI claims that Green, and therefore Hill, was put on notice when Green met with NCI representatives to talk about problems with the composition of the soil and then actually took a soil sample and noted that its composition differed from what the data summary predicted. If Green knew upon looking at the soil that the site condition was materially different from what was expected, he was on notice even if the contractor continued to labor ignorantly, having no idea why work was progressing so slowly.
NCI's position is that after concerns about sand lenses were expressed to Richie, Green was specially brought in to test the soil. When he looked at the pits he saw "clayey silt, " not clay, at the elevation of the lagoon prisms (ie., between elevations forty-seven and twenty-nine). NCI asserts that the clayey silt constituted a differing site condition, and that Green knew that it was.
But NCI's assertions and suppositions are not supported by reasonable inferences from the evidence. When Green came to inspect the soil — even if he came in especially because of NCI's concerns — the reason for his visit was possible sand lenses in the floor of the lagoon, not the consistency of the material to be excavated. The notes he took were simply a recording of what he saw at various levels, not the focus of his investigation.
Because of the concerns about sand lenses, Green came to the site and took a soil sample in the presence of representatives of NCI and Hill. The sample came from the twenty-seven foot elevation, which was two feet below the level anticipated for the lagoon floors. This again indicates that the concerns Richie and Green were addressing related to the eventual integrity of the lagoon floor, not to the difficulty of excavation. Green's log notes describing the composition of the soil on the way down the test pits were offhand assessments, not the focus of his attention.
NCI asserts that Mattoon's characterization of the material within the lagoon prism as blue clay, and the level the sample was taken, are both evidence that Green knew about the differing site condition and attempted to mislead NCI into believing there was none.
NCI speculates that Green, knowing that the presence of clayey silt was a differing site condition, lied to Mattoon to cover up the problem, telling him that they were looking at blue clay. But there is no evidence in the record that Green told Mattoon that the soil was blue clay, except for Mattoon's note indicating that they had found blue clay. Mat-toon's note nowhere states that he received this classification from Green.
NCI also suggests that Green "used his superior knowledge to select a single sample that aided in the deception." Because the sample was taken from test pit 1, and not pit 2, and because it was taken from below the lagoon floor, NCI concludes that Green was taking the sample from a place he knew would be clay. But NCI's June-July 1987 concern regarding the soil composition, which Mattoon had expressed to Richie, was the integrity of the pond floors, not the difficulty of excavation. None of NCI's representatives found it remarkable at the time that Green took a sample from below the bottom of the lagoon. The only reasonable conclusion is that, since seepage in the lagoon floor was the concern, Green took a sample from the material which would eventually form the floor of the lagoon in order to test its characteristics.
NCI's interpretation of the evidence is untenable. It relies entirely on conjecture to convert concerns expressed about the integrity of the pond floors into notice of unexpected conditions within the pond prisms. There is no reasonable interpretation of the facts which supports NCI's contention that it gave clear non-written notice of a differing site condition. The superior court correctly, dismissed NCI's sixth and seventh causes of action.
B. Denial of NCI's Motions to Amend Complaint and for Continuance of Trial
In November of 1993, NCI sought to amend its complaint. It reworded its seventh cause of action to indicate that it was intended to state a defective specifications claim rather than simply repeat the sixth cause of action's claim of differing site conditions. Also, NCI attempted for the first time to assert four separate claims directly against Hill. To this point, NCI had made all of its claims against the City, which then sought indemnity from Hill; there had been no direct NCI claims against Hill. Finally, NCI sought a continuance. The superior court denied all of these motions.
NCI argues that the superior court's denial of leave to amend was based on a failure to apply Civil Rule 15(a), which provides that "leave shall be freely given when justice so requires." The superior court stated that it
finds no manifest injustice in denying Neal leave to amend its complaint at this late date. Therefore the court finds that justice does not require amendment. Neal has had ample opportunity to pursue in a timely fashion all of the claims listed in the proposed Third Amended Complaint.... [Tjhere is no manifest injustice in failing to permit amendment on the eve of trial, after five years of preparation and motions.
NCI claims that the superior court's application of the "manifest injustice" standard was an error.
The superior court indicated in its order denying Neal's motion to amend his complaint that its reason for applying the "manifest injustice" standard was Civil Rule 16(e). While Civil Rule 15(a) directs that leave be "freely granted" by the court "when justice so requires," Civil Rule 16(e) states that pretrial orders following a final pretrial conference shall control unless modified by the judge "to prevent manifest injustice."
NCI argues that the superior court was mistaken in its belief that a Civil Rule 16(e) pretrial order had been issued, and, therefore, that the superior court's application of Civil Rule 16(e) instead of Civil Rule 15 was an error. However, it is unnecessary to determine whether the superior court had issued a Civil Rule 16(e) pretrial order. If there was no Civil Rule 16(e) pretrial order, and the superior court therefore erred in applying the "manifest injustice" standard, that error was harmless. Even under the "freely given when justice so requires" standard, it is difficult to see why NCI should be allowed to amend its complaint again. After five years of litigation, including two amendments to its complaints, and after losing a major summary judgment motion, NCI requested leave to rework its causes of action and to bring four claims against Hill for the first time. Justice does not require that such leave be granted.
The superior court carefully and accurately analyzed the amendments which NCI was offering to its complaint. All of its findings would sustain a denial of leave to amend under either the Rule 15(a) or the Rule 16(e) standard.
Similarly, it was not an abuse of discretion for the superior court, at that late point in the litigation, to deny a continuance to NCI.
C. Denial of NCI's Motion for Disqualification
During a conference involving Tony Neal, President of NCI, NCI's counsel, and Hicks and Moeller, counsel for the City, Hicks told Neal about some contact he had with Judge Cutler. Judge Cutler had worked for Hicks approximately twenty years earlier, and they had occasional social contact since. There are some minor disputes as to some details.
However, there is no record support for NCI's assertion of bias or lack of impartiality. In short, there is no merit in NCI's claim that Judge Cutler should have been disqualified.
Judge Cutler and Judge Michalski did not err in denying the motion to disqualify.
V. CONCLUSION
Review of the record shows that the superior court correctly granted summary judgment against NCI on its Differing Site Conditions claim. NCI's other points on appeal, regarding the motions to amend, to continue the trial, and to recuse the trial judge, are also without merit. The rulings of the superior court and of Judge Michalski are AFFIRMED in all respects.
MOORE, C.J., not participating.
. In reviewing a grant of summary judgment, we "must determine whether a genuine issue of material fact exists and whether the moving party is entitled to judgment as a matter of law." Saddler v. Alaska Marine Lines, 856 P.2d 784, 787 (Alaska 1993). All reasonable factual inferences must be drawn in favor of the non-moving party. Wright v. State, 824 P.2d 718, 720 (Alaska 1992). When reviewing a trial court's interpretation of contract language, based solely on documentary evidence, this court will use its independent judgment. Klosterman v. Hickel Inv. Co., 821 P.2d 118, 122 (Alaska 1991).
. The Brinderson court held that the resident engineers "were on the site, and aware of the problems, and they had abundant opportunity to inspect and investigate. This satisfied the notice requirement." Brinderson, 825 F.2d at 45.
. "A DSC exists if the actual conditions of the site differ materially from what . a contractor would have expected based on indications in the contract." Municipality of Anchorage v. Frank Coluccio Constr. Co., 826 P.2d 316, 323 (Alaska 1992).
.The superior court entered the following relevant findings of fact regarding the differing site condition issue:
Here the court finds that, under the case law cited by Neal & Co., in order for oral notice to be sufficient to replace the written notice specifically called for in the contract, either the oral notice must have given actual notice of differing site conditions to CH2M Hill and/or the City, or the oral notice must be oral notice that would have given notice of differing site conditions to CH2M Hill and/or the City except for conditions beyond Neal & Co.'s control. The court notes that in this case there is a genuine dispute regarding to whom notice of a differing site condition must be given. Given the court's holding discussed below that Neal & Co. did not give adequate notice to CH2M Hill, the court does not reach this latter issue.
The court finds that Neal & Co. failed to give oral notice of differing soil conditions in the lagoon excavation, sufficiently forceful to anyone to replace the contractual requirement of clear written notice. This holding is based on the fact that Neal & Co. merely suggested, once, that there might be a differing soil condition, and when this suggestion was rejected by CH2M Hill, Neal & Co. dropped the subject. There was no appeal to higher authority of this rejection by Neal & Co., or specific or repeated oral notice given, as occurred in W.C. Shepherd [v. United States, 125 Ct.Cl. 724, 113 F.Supp. 648 (1953)] and Brinderson.
The court also finds nothing in the record indicating that CH2M HU1 had any actual knowledge of differing conditions. There were no Field or Change Orders requested by any party, or issued because of the alleged sand lenses. Neal & Co. has not submitted any evidence tending to show that any CH2M Hill employee observed a changed condition. The record does indicate that CH2M Hill examined the site once for sand lenses, and did not find any. The court holds that the mere fact that CH2M Hill conducted such examination is not evidence that CH2M Hill had actual knowledge of a differing condition.
The court finds that, at best, Neal & Co. gave a tentative and equivocal notice that there may have been a differing site condition at the lagoon site, and holds that this notice was not sufficient to replace the written notice requirement of E.P.A. Contract Clause 4(a), or to support a claim for equitable adjustment of the contract price under 4(c). See, Blankenship Const[r], Co. v. N.C. State Highway Comm'n, 28 N.C.App. 593, 222 S.E.2d 452, 461 (1976).
Based on the discussion above, the court finds that there is no material fact dispute regarding Neal & Co.'s purported notice to CH2M Hill, and based on the facts noted, the court holds as a matter of law that the City is entitled to summary judgment that Neal & Co.'s differing site condition claim is barred for lack of adequate notice as required by E.P.A. Contract Clause 4(c) and Contract General Condition 58. Neal & Co.'s differing site condition claim against the City of Dillingham is hereby dismissed from this case.
In denying NCI's motion for reconsideration, the superior court stated in part:
If Neal in fact encountered a differing site condition for which contract adjustment and written notice were required, Neal as the contractor on a large public works project, engaged in the actual earthwork that was the primary focus of the project and doing the actual encountering of differing conditions, if such were truly encountered, had the responsibility to give written notice or other compelling notice.
. The superior court read NCI's seventh cause of action as a restatement of the sixth cause of action, which was explicitly a Differing Site Condition claim. NCI maintains that the seventh cause of action was a defective specifications claim, not a Differing Site Condition claim. It is unnecessary to determine whether NCI is correct in this assertion, as a defective specifications claim under the circumstances of the case at bar would fall to the same deficiency of notice which defeats the Differing Site Condition claim.
NCI contends that the notice requirement does not apply to defective specifications claims. For this proposition, NCI cites Paragraph 3(a)(4) of the standard EPA specifications. But Paragraph 3 deals with compensation for change orders issued by the City or Hill, whereas Paragraph 4 addresses equitable adjustments due to site conditions differing materially from those contemplated in the contract. Compare 40 C.F.R. § 33.1030 ¶ 3 with 40 C.F.R. § 33.1030 ¶4. Regardless of whether NCI's seventh cause of action states a different claim from its sixth cause of action, both are subject to the notice requirement of Paragraph 4.
. We apply an abuse of discretion standard in reviewing a trial court's denial of a motion for leave to amend. James v. State, 815 P.2d 352, 359 (Alaska 1991). A denial of a motion for continuance is also reviewed under an abuse of discretion standard. House v. House, 779 P.2d 1204, 1206 (Alaska 1989).
. A trial court's decision not to recuse itself is reviewable on an abuse of discretion standard, as is a decision by a reviewing judge not to disqualify the trial judge. Amidon v. State, 604 P.2d 575, 577 (Alaska 1979). The refusal to recuse the trial judge will be reversed only when it is evident that no fair-minded person could have come to the same conclusion on the basis of the known facts. Alaska Trams Corp. v. Alaska Elec. Light & Power, 743 P.2d 350, 353 (Alaska 1987); Amidon, 604 P.2d at 577. | [
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] |
OPINION
COATS, Judge.
Major Townsel was convicted, following a jury trial, of four counts of robbery in the first degree, AS 11.41.500(a)(1), and one count of misconduct involving weapons in the first degree, AS 11.61.200(a)(3). Judge Rene Gonzalez sentenced Townsel to the presumptive seven-year term for each count of robbery. He imposed three of the robbery sentences concurrently but imposed the fourth sentence consecutively. Judge Gonzalez sentenced Townsel to a five-year concurrent term for misconduct involving weapons. Thus, Townsel's composite sentence is fourteen years. Townsel appeals his conviction and sentence.
Townsel first argues that Judge Gonzalez erred in failing to grant his suppression motion. He argues that the evidence against him was obtained as the result of a traffic stop which was used as a pretext for a search. In deciding this issue, Judge Gonzalez issued a written decision which set out the facts of the case as he found them.
Judge Gonzalez found as follows:
On January 5, 1986 at approximately 11:58 p.m. an individual robbed the Oaken Keg at 900 East Dimond Boulevard in Anchorage. Anchorage Police Officer Mizelle responded at approximately 11:59 p.m. and made contact with the alleged victim Glenda Morrison. Ms. Morrison informed the officer that a juvenile black male between the ages of 16-20, approximately 5'6"-5'-7" and 130-140 pounds with black hair and brown eyes had just robbed the Oaken Keg. The individual was described as wearing a brown and white bandanna and a floppy or ski type hat. The individual had left on foot travelling east bound from the Oaken Keg and Carrs complex.
After the robbery Ms. Morrison had contacted her supervisor by intercom. The supervisor apparently contacted Ms. Morrison in person and notified the police. A police dispatcher relayed the information obtained from the Oaken Keg personnel over the radio to on duty officers.
At approximately 11:58 p.m. Officer David Rochford was on duty at the intersection of 36th and "A" when he was advised by dispatch that an armed robbery had taken place at the Oaken Keg at Old Seward and Dimond. Dispatch indicated that the suspect was a juvenile black male, armed with a rifle, and had fled on foot.
Officer Rochford proceeded to the intersection of New Seward and 36th Avenue and arrived at said intersection approximately two minutes later. Upon his arrival he observed a vehicle traveling north bound at the speed limit. The following vehicle infractions were observed by Officer Rochford: vehicle had its left headlight out, the driver's window was obstructed by clouded visqueen, a taillight lens was broken allowing white light to shine through, and the license plate was obscured.
Rochford let the vehicle travel out of view. He used his emergency lights to cross the intersection and turn onto the New Seward.
When Officer Rochford was behind subject vehicle, he determined that the vehicle was exceeding the speed limit by ten miles per hour — by travelling at approximately 55 miles per hour in a 45 mile per hour zone.
Officer Rochford testified that he would have stopped the vehicle for the traffic and vehicular infractions in the normal course of his duties. Consequently the officer stopped the vehicle. At the driver's window, the officer asked the driver to exit the vehicle. The driver explained that because the driver's door did not open, he had to exit from the passenger side. As the driver slid across the seat and exited from the car, the officer asked him for his driver's license. As the driver spoke the officer saw the muzzle of a rifle in the back seat of the car. When the officer told the driver not to touch the rifle the defendant reached for the gun. The officer drew his weapon and the defendant threw the rifle to the ground and fled on foot. The officer was unable to catch the defendant. Another officer arrived on the scene and seized a license, a wallet, a bag and a rifle from the vehicle. A search warrant was issued to search defendant's residence and to further search the vehicle based upon the evidence seized. Relying upon the evidence found in the vehicle and at the defendant's residence, the defendant was charged in the indictment with four courts of robbery in the first degree, one count of burglary in the second degree, and one count of misconduct involving weapons in the first degree.
These facts, as found by Judge Gonzalez, are supported by the record. Judge Gonzalez then concluded as follows:
Officer Rochford had substantial evidence to stop defendant's vehicle for violations of traffic regulations and the evidence presented does not support the assertion that this was merely a pretext stop.
Townsel cites Brown v. State, 580 P.2d 1174 (Alaska 1978) as the leading Alaska case in support of his position. Brown does establish that "an arrest (or a traffic stop) should not be used as a pretext for a search." Id. at 1176 (footnote omitted). However, the case also establishes that where "there is substantial evidence to support the trial court's determination that [the defendant's] vehicle was stopped for a violation of traffic regulations and that [the stop] was not a pretext stop," then the stop was not illegal. Id. at 1176 (footnote omitted). Officer Rochford testified that he stopped the vehicle for the traffic and vehicular infractions, not on a pretext to enable him to investigate the robbery. He testified that he would have made this stop under normal conditions if he was not investigating the robbery. Judge Gonzalez found the officer's testimony to be credible and this conclusion is not clearly erroneous. We conclude that Brown is controlling, and we affirm the trial court's decision.
Townsel next argues that his sentence was excessive. Townsel was thirty-five at the time of these offenses and had no prior felony convictions. In 1981, he served seventeen days in jail for misconduct involving weapons; in the presentence report Town-sel indicated he had discharged a firearm in the city limits. In 1976, he was fined $500 dollars for possession of marijuana. He has had several non-serious traffic violations. Townsel served two years in the military and received an honorable discharge.
In sentencing Townsel, Judge Gonzalez found that the four armed robberies were planned. He noted that all of the robberies involved robbing businesses at a time when older women were alone in the establishment. He noted that the robberies were all done with a weapon which had been specially modified so that it could be easily concealed. Judge Gonzalez also considered the fact that Townsel had lunged for the weapon when confronted by the officer during the stop. He found Townsel's pattern of conduct to be particularly serious.
Robbery in the first degree is a class A felony. The maximum sentence is twenty years. The presumptive sentence for a first felony offender who possesses a firearm during the offense is seven years. A second felony offender faces a ten-year presumptive term, a third felony offender fifteen years. In Austin v. State, 627 P.2d 657, 657-58 (Alaska App.1981), we stated the general rule that "[njormally a first offender should receive a more favorable sentence than the presumptive sentence for a second offender. It is clear this rule should be violated only in an exceptional case." Thus, Judge Gonzalez could sentence Townsel to a sentence of ten years or greater only if he found the case to be exceptional.
Furthermore, the A.B.A. Standards governing sentencing alternatives and procedures provide that "[f]or most offenses, the maximum prison term authorized ought not to exceed ten years and normally should not exceed five years. Longer sentences should be reserved for particularly serious offenses committed by particularly dangerous offenders." Ill Standards for Criminal Justice, § 18-2.1 (2nd ed. Supp.1982). We have defined who is a particularly dangerous offender by referring to the A.B.A. Standard governing habitual offenders. Id. at § 18-4.4. That standard defines an habitual offender as one who has been convicted of at least two prior felonies, which were committed on two different occasions, within five years of the present offense. Under the standards, the habitual offender must have previously served a sentence in excess of one year. Under the A.B.A. Standards, therefore, Townsel does not qualify as either a habitual offender or a particularly dangerous offender. Because Townsel has never been previously convicted of a felony nor served an extensive period of confinement, we do not believe that there is a reliable basis for concluding that he is incapable of rehabilitation or that his isolation from society for a period in excess of ten years is necessary.
Except in cases where the defendant has committed an unclassified felony, this court and the Alaska Supreme Court have followed the A.B.A. Standard ten-year benchmark. See Pruett v. State, 742 P.2d 257 (Alaska App.1987); Skrepich v. State, 740 P.2d 950 (Alaska App.1987). Recently, in Williams v. State, 759 P.2d 575 (Alaska App.1988), this court followed the A.B.A. Standards in a case similar to Townsel's. Williams was sentenced to ten years' imprisonment in federal court for armed bank robbery and for using a deadly weapon during a crime of violence. Williams was also convicted of three second-degree robberies in state court. In state court, the sentencing judge sentenced Williams to eight years with five years suspended, but imposed that sentence consecutively to the earlier ten-year federal sentence. We found that the sentencing judge was clearly mistaken in imposing Williams' three-year unsuspended terms consecutively to his ten-year federal prison term. We thus ordered Williams' sentence reduced to a composite sentence of fifteen years with five years suspended on both his state and his federal charges. Thus, Williams' term of actual imprisonment was ten years.
It appears to us that Townsel's case is very similar to Williams. Townsel was thirty-five years old at the time of his offense. Williams was a significantly younger offender at eighteen years of age. However, Williams had an extensive history of minor property and weapon offenses as a juvenile. Furthermore, Williams had been arrested soon after committing the sixth in a series of strong-armed robberies. While he was released on bail, Williams committed the armed robbery of a federal credit union. Townsel's case is aggravated by his consistent use of an illegal weapon and his dangerous confrontation with the police officer when he was stopped. On balance, we conclude that Williams and Townsel are similar offenders who deserve similar sentences. Although both offenders qualify for severe sentences, we do not believe that they qualify for sentences in excess of the ten-year A.B.A. Standard benchmark. We accordingly find Town-sel's sentence to be clearly mistaken.
We AFFIRM Townsel's conviction. We VACATE Townsel's sentence, and we REMAND to the trial court with directions to impose a sentence of fourteen years with four years suspended. | [
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OPINION
BRYNER, Chief Judge.
George A. Konrad was convicted, following a jury trial, of assault in the third degree, assault in the second degree, and terroristic threatening. Konrad appeals, arguing that the trial court erred in failing to dismiss his indictment, that Alaska's ter-roristic threatening statute is unconstitutionally vague, that the evidence presented at trial was insufficient to support his conviction, that the trial court erred in excluding testimony offered to impeach the victim, and that the court erred in denying his motion for a new trial when a new judge was assigned to his case for purposes of conducting sentencing proceedings. We affirm Konrad's convictions for second-degree assault and terroristic threatening, but vacate his conviction for third-degree, assault.
BACKGROUND
Konrad was indicted for a series of incidents that occurred during the breakup of his marriage to Luann Konrad. The indictment charged Konrad with third-degree assault for recklessly causing physical injury to Luann Konrad by striking her on the head and ribs with his hands, with second-degree assault for recklessly causing serious physical injury to Luann by throwing her off a bed onto a wooden crate, and with terroristic threatening for engaging Luann in a telephone conversation in which Konrad repeatedly threatened to kill her.
ASSAULT IN THE THIRD DEGREE
On May 9, 1986, following a heated argument, George Konrad struck Luann Konrad twice with his hands: once on the head and once on the ribs. Luann Konrad experienced abdominal pain following the assault. Several days later a physician determined that the blow to Luann's midsection had injured her spleen, causing it to bleed into her abdominal cavity. The injury resolved itself without treatment.
Based on the May 9 incident, the state requested the grand jury to charge Konrad with assault in the third degree. The state proceeded under AS 11.41.220(a)(2), which states that "a person commits the crime of assault in the third degree if that person recklessly . causes physical injury to another person by means of a dangerous instrument." The state's theory was that Konrad's hands were dangerous instruments.
After reading the statutory definition of "dangerous instrument" to the grand jury, the prosecutor stated, in relevant part: "I would instruct you at this time that in the state of Alaska hands or feet can be considered a dangerous instrument under the definition that I have given you of a dangerous instrument." The grand jury returned a true bill.
Prior to trial, Konrad moved to dismiss the third-degree assault charge, challenging the propriety of the prosecutor's instruction to the grand jury. The superior court denied Konrad's motion. At trial, Konrad unsuccessfully moved for a judgment of acquittal on the third-degree assault charge, contending that the evidence was insufficient to establish the use of a dangerous instrument. Konrad now renews these arguments on appeal.
The term "dangerous instrument" is defined in AS 11.81.900(b)(ll):
(11) "fDJangerous instrument" means any deadly weapon or anything which, under the circumstances in which it is used, attempted to be used, or threatened to be used, is capable of causing death or serious physical injury.
"Physical injury" and "serious physical injury" are in turn defined in AS 11.81.-900(b)(40) and (50):
(40) "[Pjhysical injury" means a physical pain or an impairment of physical condition;
(50) "[S]erious physical injury" means
(A) physical injury caused by an act performed under circumstances that create a substantial risk of death; or
(B) physical injury that causes serious and protracted disfigurement, protracted impairment of health, protracted loss or impairment of the function of a body member or organ, or that unlawfully terminates a pregnancy.
This court has never squarely decided whether a bare hand can be a "dangerous instrument" within the meaning of these provisions. In Wettanen v. State, 656 P.2d 1213 (Alaska App.1983), we held that a bare foot could qualify as a dangerous instrument under certain circumstances. The evidence there established that Wetta-nen had kicked another person repeatedly about the face and head, inflicting serious physical injuries. Because the state neglected to establish whether Wettanen was shod when he committed the assault, it was necessary to decide if a bare foot could qualify as a dangerous instrument. We concluded that sufficient evidence had been presented at trial to allow a finding that Wettanen's foot was a dangerous instrument, even if it was unshod. Id. at 1218. In reaching, this conclusion, we expressly declined to decide whether a bare hand could similarly qualify as a dangerous instrument, noting that the cases from other jurisdictions on the issue are in conflict. Id. at 1218.
Since deciding Wettanen, we have had no occasion to resolve this issue. In at least one case, however, we have assumed that a hand might qualify as a dangerous instrument in some situations. See New v. State, 714 P.2d 378, 383 (Alaska App.1986).
For the purpose of deciding the present case, we may likewise assume that there is no categorical prohibition against a hand being deemed a dangerous instrument under the definition set forth in AS 11.81.900(b)(ll). Our prior cases nevertheless firmly establish that the question of whether a hand qualifies as a dangerous instrument in any given case must be answered by examining the precise manner in which the hand is actually used.
The need to focus on the specific circumstances of each case derives from the definition of "dangerous instrument." While the statutory definition encompasses "anything" that is capable of causing death or serious physical injury, the express language of the statute requires that an instrument's potential for causing death or serious physical injury be assessed in light of "the circumstances in which it is used, attempted to be used, or threatened to be used." AS 11.81.900(b)(ll). It is the actual use of the instrument in each case that must be considered, not abstract possibilities for use of the instrument in hypothetical cases.
We emphasized this point in Wettanen, cautioning that "every . blow, even if it causes serious injury, will not automatically be an assault with a dangerous instrument." Wettanen, 656 P.2d at 1217. We pointed out that the inquiry must focus on the vulnerability of the victim and the specific nature of the assault in each case. Id. at 1217. In this regard, we emphasized that "the requirement of a dangerous instrument serves to shift the focus of the trier of facts' attention from the result (physical injuries), which in any given case may have been unforeseeable to the defendant at the time the assault was committed, to the manner in which the assault was committed." Id. at 1218.
We elaborated on Wettanen in Carson v. State, 736 P.2d 356 (Alaska App.1987), hearing denied, 742 P.2d 782 (Alaska 1987), a case involving an analogous situation. In that case, police officers performing a misdemeanor arrest subdued Carson by kicking him in the groin and unleashing a police dog, which bit Carson on the legs and buttocks until he ceased struggling. At issue was whether the officers' actions amounted to "deadly force." The applicable statute defined "deadly force" to include any force used under circumstances that "create a substantial risk of causing death or serious physical injury." See AS 11.81.900(b)(12); Carson, 736 P.2d at 361.
We found that the evidence in Carson did not support a finding that deadly force had been used. In reaching this conclu sion, we emphasized the need to focus on the actual risk of serious physical injury posed in the specific case, rather than on the abstract possibility of serious physical injury under other, hypothetical circumstances. We said, in relevant part:
Although we can certainly conceive of cases in which specific testimony describing a kick to the groin or an attack by a dog would support the inference that a substantial risk of death or serious physical injury was created, we are unwilling to conclude that testimony establishing no more than the unadorned fact of a kick to the groin or an attack by a police dog is per se sufficient to create a jury question as to the use of deadly force. The issue is not one to be resolved in the abstract. There must, at a minimum, be some particularized evidence from which a reasonable juror could conclude that a substantial risk of serious physical injury was actually created in the specific case at bar.
The issue is analogous to one we considered in Wettanen v. State. There, we held that, while any object, including an unshod foot, that was capable of inflicting serious physical injury might qualify under the broad statutory definition of "dangerous instrument," the actual determination of whether a dangerous instrument was used must be made on a case-by-case basis, based on the totality of the circumstances surrounding the actual use of the object in question.
Carson, 736 P.2d at 361 (citations omitted).
When read together, Wettanen and Carson stand for the proposition that, before a hand may be deemed a "dangerous instrument," the state must present particularized evidence from which reasonable jurors could conclude beyond a reasonable doubt that the manner in which the hand was used in the case at issue posed an actual and substantial risk of causing death or serious physical injury, rather than a risk that was merely hypothetical or abstract.
Obviously, whenever serious physical injury does in fact occur, there will be prima facie evidence to support a finding that a dangerous instrument was used. Conversely, when serious physical injury does not occur, other case-specific evidence must be adduced to establish that the risk of such injury was both actual and substantial, even though it did not in fact occur.
The facts of the present case are problematic when viewed in light of this analysis. We consider initially the grand jury proceedings. The state did not contend below, and it does not argue on appeal, that Luann Konrad suffered serious physical injury when Konrad struck her with his hands. In presenting its case to the grand jury, the prosecution instructed that "under Alaska law hands or feet can be considered dangerous instruments."
The ambiguity of this instruction is troublesome. While it might be taken to indicate that the decision as to whether Konrad's hands were dangerous instruments was a factual one to be made by the grand jury, it might as readily be taken to indicate that there was no need at all for the grand jury to consider the issue, since it was settled as a matter of Alaska law. In our view, the giving of this instruction raises a serious question as to whether the grand jury in Konrad's case ever actually determined, as a factual matter, whether Konrad used his hands in a manner capable of inflicting death or serious physical injury-
In any event, even without the ambiguous instruction, we believe that the circumstances of the present ease would have been sufficiently unique to require a specific admonition to the grand jury concerning the manner in which it was required to determine whether a dangerous instrument had been used.
We recognize that the grand jury was appropriately instructed on the statutory definitions of "dangerous instrument," "physical injury," and "serious physical injury." Nevertheless, when, as in the present case, the defendant is alleged to have used a dangerous instrument that was not a "deadly weapon" and that did not actually inflict death or serious physical injury, the possibility that the grand jury might decide the instrument's potential for causing injury as an abstract or hypothetical matter is, in our view, sufficiently great to require that an express instruction be given. The instruction should alert the grand jury to the need for it to find, based on the evidence in the case before it, that the defendant used an instrument in a manner that actually created a substantial risk of death or serious physical injury. In view of the lack of an appropriate clarifying instruction and the ambiguity of the instruction actually given, we conclude that the trial court erred in denying Konrad's pretrial motion to dismiss the count charging him with assault in the third degree.
We must separately consider whether sufficient evidence was presented at trial to support Konrad's conviction of assault in the third degree. As we have already indicated, the state does not allege that the evidence established that Konrad inflicted serious physical injury by striking Luann Konrad with his hands. While Luann suffered internal bleeding from the spleen, the condition healed without treatment within a short period of time. No medical evidence was adduced to establish that Luann's condition verged on becoming more serious or that a blow to the ribs similar to that inflicted by Konrad actually posed a risk of inflicting more severe injuries to the spleen or to other internal organs. See, e.g., James v. State, 671 P.2d 885, 888-89 (Alaska App.1983), rev'd on other grounds, State v. James, 698 P.2d 1161 (Alaska 1985).
Apart from Luann Konrad's testimony that Konrad's hand was in a fist when he struck her, there is nothing in the record to establish that the manner in which Konrad used his hands was inordinately violent or particularly calculated to inflict serious physical injury. No evidence was offered to suggest that Konrad had received martial arts training or that he was otherwise skilled in using his hands to inflict physical injury.
Other than the fact that Konrad had awakened Luann Konrad shortly before he assaulted her, there was no evidence to suggest that she was especially susceptible to incurring a serious physical injury. Although it can be inferred that Luann would have been better able to ward off Konrad's blows and to prevent the injuries that she did receive had she not recently been asleep, nothing in the evidence establishes that she was vulnerable to suffering injury more serious than that actually inflicted merely because she had been sleeping and was caught off guard by Konrad's assault.
In arguing that the evidence was sufficient to support a finding that Konrad's hands were dangerous instruments, the state notes that, after the assault, Konrad offered to take Luann to the doctor when he got back from work. The state contends that this evidence reflects upon the seriousness of Konrad's assault and could legitimately be relied on by the jury.
To the extent that Konrad's offer of assistance betrayed his awareness that he had assaulted Luann Konrad with sufficient force to inflict injuries requiring medical treatment, the state is correct. However, the evidence does nothing to indicate that Konrad believed he had inflicted serious physical injury, as opposed to nonserious physical injury. Consequently, the evidence fails to establish, either directly or inferentially, that his assault created an actual and substantial risk of serious physical injury.
In ruling on the sufficiency of the evidence at trial, we must view the evidence and the inferences arising therefrom in the light most favorable to the state to determine whether reasonable jurors could conclude that the defendant's guilt was established beyond a reasonable doubt. Snyder v. State, 661 P.2d 638, 641 (Alaska App.1983); Des Jardins v. State, 551 P.2d 181, 184 (Alaska 1976). Applying this standard to the present case, we conclude that insufficient evidence was adduced to support Konrad's conviction of third-degree assault. In our view, the evidence cannot justify a finding that Konrad's hands qualified as dangerous instruments. On the record of the present case, a conclusion that Konrad's hands were capable of causing death or serious physical injury under the circumstances in which they were actually used— that is, that they actually created a substantial risk of death or serious physical injury to Luann Konrad — would be wholly speculative.
Were we to find sufficient evidence in this case to support a conclusion that Konrad's hands were dangerous instruments, a similar conclusion would be justified in virtually every case involving blows struck with fists that inflicted some physical injury. We conclude that the trial court erred in denying Konrad's motion for a judgment of acquittal as to the charge of assault in the third degree.
ASSAULT IN THE SECOND DEGREE
On August 24, 1986, Konrad became angry with Luann Konrad and threw her off of their bed. She struck the corner of a wooden crate that was on the floor; as a result of the blow Luann suffered a collapsed right lung. Treatment of this injury required surgical perforation of Luann's ribcage and the insertion of a tube to reinflate the lung. The treatment necessitated Luann's hospitalization for a period of six days.
Konrad's August 24 assault was the basis for his conviction of assault in the second degree. Under AS 11.41.210(a)(2), second-degree assault occurs when a "person recklessly causes serious physical injury to another person." On appeal, Konrad argues that the evidence below was insufficient to establish serious physical injury.
"Serious physical injury" may be proved, inter alia, by evidence establishing that the defendant inflicted physical injury by "an act performed under circumstances that create a substantial risk of death." AS 11.81.900(b)(50)(A). This definition of serious physical injury focuses on the circumstances in which the defendant performed the act that caused physical injury. The fortuity of prompt medical treatment and speedy recovery by the victim is not a primary consideration. See James v. State, 671 P.2d at 888-89.
At trial, Dr. David D. Anderson testified that Luann Konrad sustained a pneumotho-rax, or a collapsed lung caused by air seeping into the chest cavity. Dr. Anderson characterized the injury as life threatening. He likened the risk of death to that involved in open heart surgery. Despite repeated cross-examination by Konrad's counsel, Dr. Anderson steadfastly refused to say that the risk of death posed to Luann Konrad by her injury was not substantial. To the contrary, the doctor testified that "there is a definite risk of death, there is no getting around it."
When viewed in the light most favorable to the state, Dr. Anderson's testimony provides ample evidence from which the jury could have reasonably concluded that Luann Konrad suffered a serious physical injury as a result of the August 24 assault. The trial court did not err in denying Konrad's motion for a judgment of acquittal as to the charge of assault in the second degree.
TERRORISTIC THREATENING
On November 20, 1986, George and Luann Konrad spoke to each other by telephone. Their conversation lasted for about one-half hour. During the second half of the conversation, Konrad repeatedly threatened to kill his wife if she prevailed in a child custody dispute that was then pend ing in the superior court. Luann Konrad recorded the entire conversation. Konrad's death threats served as the basis for his conviction of terroristic threatening.
A. Failure to Present Exculpatory Evidence to the Grand Jury
During the grand jury hearing on Konrad's case, the prosecution played only the latter portion of the recorded conversation between Konrad and his wife. That was the portion in which Konrad made his threatening statements. Prior to trial Konrad unsuccessfully moved to dismiss the terroristic threatening charges, arguing that the prosecution breached its duty to present exculpatory evidence by failing to play the entire recorded conversation, as well as two prior conversations between Konrad and Luann that were recorded on the same tape.
Konrad renews his argument on appeal. He contends that the first portion of the tape would have tended to establish that Luann was not particularly afraid of Konrad and that she in effect goaded him into making the threats upon her life.
We are unpersuaded by Konrad's argument. While the prosecution must disclose exculpatory evidence to the grand jury, Frink v. State, 597 P.2d 154, 164 (Alaska 1979), there is no duty to present "possibly favorable" evidence or to develop potential theories of defense. Abruska v. State, 705 P.2d 1261, 1272 (Alaska App.1985); Tookak v. State, 648 P.2d 1018, 1021 (Alaska App.1982).
In the present case, there was nothing inherently exculpatory in the portion of the recorded conversations that remained unplayed. Konrad was charged with terroristic threatening under AS 11.-56.810(a)(2), which applies when a person, "with intent to place another person in fear of death or serious physical injury to the person or the person's immediate family, makes repeated threats to cause death or serious physical injury to another person." Because this statutory definition hinges the offense of terroristic threatening on the specific intent of the accused rather than on the subjective reaction of the victim, the fact that Luann Konrad may not have appeared to be particularly afraid of Konrad during the initial portion of their conversation is not directly relevant to the issue of Konrad's guilt or innocence. Moreover, no defense arises under the statutory definition of the offense merely because the accused is in some manner provoked to threaten the victim.
It is theoretically possible that the un-played portions of the tape might have had some indirect relevance on the issue of Konrad's specific intent to place Luann Konrad in fear. A person who is provoked and makes threats out of anger may act without a specific intent to cause fear. Thus, if the earlier portion of the recorded conversation revealed significant provocation, it should arguably have been played to provide a context from which the grand jury could have determined Konrad's intent in making the threats contained in the latter part of the recording.
In this connection, however, our review of the recorded conversation convinces us that the unplayed portion of the tape could have had no substantial exculpatory value. To the extent that the unplayed portion reveals any provocation of Konrad by Luann Konrad, that provocation is decidedly slight in comparison to the threats of death that followed. Given the marginal extent of provocation on the unplayed portion of the tape and the repeated and apparently deliberate nature of Konrad's subsequent death threats, we are satisfied that a playing of the full conversation would not have been substantially favorable to the defense in this case. We find no error.
B. Lesser-Included Offense
Konrad was initially charged by information with attempted coercion, in violation of AS 11.41.530(a)(1) and AS 11.31.100(d)(4). Because coercion is a class C felony, attempted coercion constitutes a class A misdemeanor. AS 11.31.100(d)(4). In presenting Konrad's case to the grand jury, the prosecution elected to ask for a charge of terroristic threatening instead of attempted coercion. The offense is a class C felony. See AS 11.56.810(b).
During the grand jury hearing, a grand juror asked the prosecutor, with respect to the terroristic threatening charge:
Is there — are there other avenues of potential counts or charges for threatening people's lives?
The prosecutor responded:
We considered other charges, but unfortunately there's not anything that's a real good fit, and the legislature amended terroristic threatening; it used to not include threats that were made to people and their family members, and they recently amended it so it seems to me that that's probably the closest fit that we're going to get.
In moving to dismiss the indictment below, Konrad argued that the prosecutor was obligated to submit the crime of attempted coercion to the grand jury as a possible lesser-included offense of terroristic threatening. Konrad repeats this argument on appeal. He acknowledges that there is normally no duty to offer the grand jury a lesser-included offense when sufficient evidence is presented to support a greater offense. See Oxereok v. State, 611 P.2d 913, 916-18 (Alaska 1980); Castillo v. State, 614 P.2d 756, 763 (Alaska 1980). Nevertheless, Konrad insists that an instruction on attempted coercion was necessary in the present case in light of the grand jury's specific request for possible alternative charges.
In our view, however, the prosecution's response to the grand juror's inquiry was reasonable. "[A]s legal advisor to the grand jury, the prosecutor may appropriately explain the law and express an opinion on the legal significance of the evidence...." I Standards for Criminal Justice, Standard 3-3.5 (2d ed. 1980). Here, the prosecutor's opinion that terroristic threatening appeared to be the "best fit" was accurate.
Contrary to Konrad's position below and on appeal, attempted coercion is not a lesser-included offense of terroristic threatening. As defined in AS 11.41.-530(a)(1), coercion is committed when the accused instills fear in another person by threats of physical injury in order to compel the other person "to engage in conduct from which there is a legal right to abstain or abstain from conduct in which there is a legal right to engage-" To prove attempted coercion, the prosecution would have been required to establish not only that Konrad intended to cause fear on Luann Konrad's part, but also that he did so with the express purpose of coercing her to abstain from pursuing her custody claim.
This additional burden would have placed the prosecution at a significant disadvantage. Because Konrad may well have intended to place Luann Konrad in fear without actually intending to coerce her into relinquishing her claim of custody, he might have been found guilty of terror-istic threatening without also being found guilty of attempted coercion. Under the circumstances, then, attempted coercion was not a lesser-included offense of terror-istic threatening, and the prosecution's advice that terroristic threatening was a "better fit" was not unreasonable.
C. Vagueness
Konrad argues for the first time on appeal that Alaska's terroristic threatening statute is unconstitutionally vague and overbroad. In relevant part, AS 11.56.-810(a)(2) provides:
(a) A person commits the crime of ter-roristic threatening if the person
(2) with intent to place another person in fear of death or serious physical injury to the person or the person's immediate family, makes repeated threats to cause death or serious physical injury to another person.
Konrad's claim of vagueness is premised on the statute's use of the word "repeated," which modifies the word "threats." According to Konrad, "repeated" is ambiguous, because it may be understood to mean either a threat uttered more than one time in a single conversation or a threat made on more than one occasion. Konrad claims that this ambiguity deprived him of fair notice as to what conduct on his part was prohibited. He also claims that the ambiguity invites arbitrary enforcement of the statute.
Konrad's argument is unconvincing. A statute is impermissibly vague when it fails to give adequate notice of what conduct it prohibits, that is, when it is so imprecise that ordinary persons of common intelligence are left to guess at its meaning and are apt to differ as to its scope. Summers v. Anchorage, 589 P.2d 863, 866-67 (Alaska 1979). We find no such imprecision in the statutory phrase "repeated threats."
"Repeated" is not defined in Alaska's revised criminal code. Its ordinary definition must be considered. Gibson v. State, 719 P.2d 687, 690 (Alaska App.1986). According to Webster's Collegiate Dictionary, "repeated" means: "said, made, done, or happening again, or again and again." We find little ambiguity in this definition. In context, a "repeated threat" is simply a threat made more than once. See, e.g., State v. Diede, 319 N.W.2d 818, 821 (S.D.1982).
While the ordinary meaning of "repeated threats" certainly encompasses a threat made on more than one occasion, there is no reason to suppose, as Konrad suggests, that these words can reasonably be read to exclude threats made more than once on a single occasion. The Colorado Supreme Court, relying on the ordinary meaning of "repeatedly," rejected a vagueness claim almost identical to the one advanced by Konrad here. See People ex rel. VanMeveren v. County Court, Etc., 191 Colo. 201, 551 P.2d 716 (1976). In reaching its conclusion, the court said:
"Repeatedly" is a word of such common understanding that its meaning is not vague. It simply means in the context of this statute that the defendant used insulting, taunting or challenging language more than one time.
Id. 551 P.2d at 720.
We find no sound basis for refusing to apply the ordinary meaning of "repeated" in the present case. The challenged portion of Alaska's terroristic threatening statute was adopted by the legislature in 1984, apparently without commentary. See Chapter 108, § 1, SLA 1984. Of the various other states having terroristic threatening statutes similar to Alaska's, almost none require more than a single threat. See generally Model Penal Code § 211.3 commentary at 206 n. 8 (1980); Annotation, Validity And Construction of Terroristic Threat Statutes, 45 A.L.R. 4th 949 (1986). Accordingly, there seems to be no statutory history in Alaska or general trend elsewhere indicating a need to restrict the plain meaning of Alaska's statute.
The only state adopting a requirement similar to that urged by Konrad appears to be Hawaii, which provides for a misdemeanor conviction of terroristic threatening based on a single threat, see Haw.Rev.Stat. § 707-715 (1985), but requires "threatening another person on more than one occasion" for conviction of a felony. See Haw.Rev.Stat. § 707-716 (1985).
It is uncertain whether Alaska's terroristic threatening provision was patterned after Hawaii's. For purposes of construing Alaska's statute, the issue seems unimportant. Assuming Alaska's statute was drawn from Hawaii's, our legislature's election to depart from the wording of the Hawaii statute by requiring a "repeated" threat rather than a threat "on more than one occasion," would appear to be significant. Assuming Alaska's statute was not taken from the Hawaii code, then Hawaii's decision to require a threat "on more than one occasion" would be significant only insofar as it establishes that the Alaska legislature could easily have drafted a statute to require a threat on more than one occasion had it wanted to do so.
While we hold that the terroristic threatening statute is not impermissibly vague when "repeated" is accorded its ordinary meaning, we nonetheless recognize that applying the literal definition of the word may create problems in certain unusual circumstances in which a question might arise as to whether a single statement contains more than one threat. The obvious purpose in requiring that a threat be "repeated" before becoming a terroristic threat within the meaning of AS 11.56.-810(a)(2) is to assure that the harsh sanction of felony prosecution will not be visited upon a person for making a rash statement out of transitory anger or in the heat of passion. This purpose is reflected in the reading generally given to terroristic threatening provisions in other jurisdictions. See, e.g., Annot., supra, 45 A.L.R. 4th § 31. Accordingly, strict adherence to the literal meaning of "repeated threats" will be inappropriate in some situations.
When a threat is uttered several times in virtually the same breath, elaborated upon without any significant interruption, or repeated at the request of the listener, the statutory requirement of repetition will not, in our view, be met. Rather, in order to justify the finding that a threat has been repeated or that more than one threat has been made during a single conversation, the evidence must establish a clear break in context between initial and subsequent threats and the passage of sufficient time between threats to permit reflection. The ultimate question should be whether the repetition of the threat amounted to a separate act by the accused or whether it is part of a single continuous act. Resolution of this question lends itself to no inflexible rule and should ordinarily be left to the jury, whose decision should be on the totality of the evidence in the case at issue.
In the present case, there was ample evidence to permit a finding that Konrad made "repeated threats" to take Luann Konrad's life. The recording of the telephone conversation reveals that Konrad threatened to kill his wife numerous times. The threats were not made in a continuous manner. Rather, they were repeated over a period of more than fifteen minutes. Konrad's threats were separated not only in time, but also by the subject matter of the conversation. The individual threats were interspersed with discussion concerning other matters. Sufficient time elapsed between the threats to permit reflection, and the threats were uttered in a composed and calculated tone of voice.
Konrad's conduct is thus within the core prohibition of the statute. To the extent that there is any potential for uncertainty in some situations, Konrad's case falls well outside the area of uncertainty. See, e.g., Levshakoff v. State, 565 P.2d 504, 508 (Alaska 1977). We reject both Konrad's vagueness argument and his related contention that insufficient evidence was presented below to support his conviction for terroristic threatening.
OTHER ISSUES
Konrad raises two additional issues that do not require extended discussion. First, he contends that the trial court erred in excluding the testimony of Keith Wiger. Wiger's testimony, however, was offered for the sole purpose of impeaching Luann Konrad's testimony concerning an entirely collateral matter. We find no abuse of discretion in the exclusion of his testimony. See, e.g., Moss v. State, 620 P.2d 674, 676-77 (Alaska 1980); Oswald v. State, 715 P.2d 276, 278-79 (Alaska App.1986).
Konrad also claims that the court erred in failing to grant a new trial. Konrad's trial was conducted before Superior Court Judge Duane K. Craske, who was on temporary assignment in Anchorage from Sitka. Following the trial, Judge Craske returned to Sitka; Konrad's sentencing hearing was assigned to Superior Court Judge S.J. Buckalew, Jr., of Anchorage. Konrad thereafter moved for a new trial, pursuant to Alaska Criminal Rule 25(c), which provides:
After Verdict. If by reason of absence from the district . the judge before whom the action has been tried is unable to perform the duties to be performed by the court after a verdict or finding of guilt, any other judge regularly sitting . may perform those duties; but if such other judge is satisfied that he cannot perform those duties because he did not preside at the trial or for any other reason, he may in his discretion grant a new trial.
Judge Buckalew denied Konrad's motion and proceeded to impose sentence.
Judge Buckalew's denial of a new trial did not amount to an abuse of discretion. Criminal Rule 25(c) vests a newly-assigned judge with discretion to order a new trial if that judge "is satisfied that he cannot perform those duties [i.e., sentencing] because he did not preside at the trial or for any other reason...." Here, there is no indication that Judge Buckalew was unable to perform his duties. To the contrary, the record discloses that the judge thoroughly familiarized himself with the case by reviewing the entire record of trial proceedings. Even had he not reviewed the record, Judge Buckalew would have been in essentially the same position as any judge who imposes a sentence after a plea of guilty or no contest. Under the circumstances, we find no abuse of discretion.
The convictions for terroristic threatening and assault in the second degree are AFFIRMED. The conviction for assault in the third degree is VACATED. This case is REMANDED to the superior court, with directions to amend the judgment accordingly.
. "Deadly weapon" is defined in AS 11.81.-900(b)(13) as follows:
"[D]eadly weapon" means any firearm, or anything designed for and capable of causing death or serious physical injury, including a knife, an axe, a club, metal knuckles, or an explosive....
Under the definition of "dangerous instrument" set out in AS 11.81.900(b)(ll), any deadly weapon qualifies as a dangerous instrument, without regard to the circumstance in which it is actually used. The inherent danger posed by deadly weapons justifies their treatment as dangerous instruments without regard to actual use. See, e.g., Krasovich v. State, 731 P.2d 598 (Alaska App.1987). We emphasize that our discussion in the text is restricted to dangerous instruments that would not qualify within the statutory definition for a deadly weapon.
. Although the argument in the body of Konrad's briefs appears to be that attempted coercion is the lesser offense that the prosecution should have called to the attention of the grand jury, the statement of points on this issue in Konrad's opening brief refers to the class B misdemeanor of harassment, AS 11.61.120(a)(4), which prohibits threatening telephone calls that are made with intent to harass or annoy. Like attempted coercion, harassment is not a lesser-included offense of terroristic threatening under the circumstances of the present case. Harassment requires proof that the accused was the person who made the threatening telephone call and that the call was made with the intent to harass. In the present case, the recording made by Luann Konrad did not reveal who initially placed the call. Even assuming the state could have proved that it was Konrad, rather than his wife, who placed the call, it would still have had to prove that Konrad's original purpose in placing the call was to harass or annoy. In contrast, the crime of terroristic threatening required the state to prove only that Konrad's purpose was to instill fear of serious physical injury in his wife at the time he uttered the threatening remarks.
. The word "threat" is defined in AS 11.81.-900(b)(55) to include "a menace, however, communicated," to inflict physical injury. Konrad does not challenge the adequacy of the statutory definition of "threat."
. The derivation table included in the Alaska Department of Law's Criminal Law Manual lists Hawaii Revised Statute 707-715 in connection with Alaska's terroristic threatening statute. This reference to the Hawaii statute is of questionable significance, however, because the derivation table does not necessarily indicate the actual source of any given Alaska statute. A preface to the derivation table cautions, in relevant part:
It should be noted that the derivation listing was compiled by the Criminal Division of the Department of Law after enactment of the revised code. Statutes from other jurisdictions that were actually considered by the Criminal Law Revision Subcommission are set out in a table appearing as an appendix to each volume of the six-part Tentative Draft of the code published by the Subcommission.
Id. at 6-1 — 6-2 (emphasis in original). The tentative draft contained no terroristic threatening provision. We note, moreover, that the derivation table referred to Hawaii Revised Statute 707-715 even before the terroristic statute was amended in 1984 to add subsection (a)(2), which for the first time added the provision requiring "repeated threats."
. Insofar as Konrad has claimed that AS 11.56.-810(a)(2) would permit arbitrary enforcement, he has failed to establish any history of arbitrary enforcement to support his claim. See, e.g., Summers v. Anchorage, 589 P.2d at 866-67; Holton v. State, 602 P.2d 1228, 1234 (Alaska 1979).
. The record discloses no efforts by Konrad's trial counsel to reschedule sentencing for a time when Judge Craske might have been available or to make other arrangements that might have allowed the sentencing hearing to be conducted by Judge Craske. Had trial counsel made such efforts, we believe that reassignment of the case for sentencing purposes would have amounted to error, absent compelling circumstances precluding the trial judge's participation. We emphasize, however, that on appeal Konrad does not argue that he should have been sentenced by Judge Craske. Rather, his only point is that he should have received a new trial before Judge Buckalew. Our holding addresses only that contention. | [
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] |
OPINION
SINGLETON, Judge.
A jury convicted Richard D. Robison of kidnapping, but accepted the affirmative defense that he released his victim without harming her. Consequently, the offense was reduced to a class A felony. AS 11.-41.300(d). The jury also convicted Robison of attempted sexual assault in the first degree. AS 11.41.410(a)(1); AS 11.31.-100(a). Robison, a first felony offender, was subject to a five-year presumptive term. AS 12.55.125(c)(1). The trial court rejected Robison's claim that his conduct was among the least serious within the definition of the offense, AS 12.55.155(d)(9), and found instead that the conduct was among the most serious. AS 12.55.-155(c)(10). Robison received a sentence of ten years with five years suspended. He appeals his conviction and sentence. We affirm Robison's conviction, but vacate his sentence and remand for imposition of the presumptive term.
FACTS
In October 1986, C.R. was living and working in Anchorage. She rode the bus to work each day and had to change buses at the University Mall. During the afternoon of October 27, 1986, she had taken the bus to the mall and had gone inside the mall while waiting for her connecting bus. As she walked back out through the mall parking lot towards the bus stop, a man in a small pickup truck asked her for directions to Tudor Road. C.R. answered the man and then went across the street to the bus stop. She waited a few minutes and became concerned that she had missed her bus. She then went to a nearby phone booth to call her employer to say she was late.
C.R. testified that while she was in the phone booth, bending over her purse to find change, the man to whom she had earlier given directions backed up his pickup truck near the phone booth. He got out of the truck and came up behind C.R. C.R. testified that she felt something against her back and heard the man say to her, "I have a gun and I want you to suck my dick." C.R. said that the man directed her to get into the passenger side of his truck and she complied. When C.R. and the man were in the truck she could not see a gun. He again requested sexual activity which she refused. C.R. testified that the man started the truck and proceeded down the road, not traveling very fast. As the truck pulled slowly away from a stop sign, C.R. jumped out. The man drove away. C.R. scraped her hand "a little bit" but was not otherwise hurt. C.R. immediately reported the abduction to a passer-by, who took her to a nearby office from which C.R. summoned the police. At trial, C.R. identified Robison as the man who had abducted her.
Robison testified at trial. He admitted that he had offered a ride to C.R. and requested that she "suck his dick." He denied having a gun or threatening C.R. with any object. He indicated that he was slowing down to let her out of the truck at her request, when she panicked and jumped out. He drove off.
DISCUSSION
Alaska Statute 11.41.300(a)(1)(C) provides in pertinent part that a person commits the crime of kidnapping if the person restrains another person with the intent to sexually assault the other person. Particularly relevant to this case is AS 11.41.300(d), which provides as follows:
In a prosecution for kidnapping, it is an affirmative defense which reduces the crime to a class A felony that the defendant voluntarily caused the release of the victim alive in a safe place before arrest, or within 24 hours after arrest, without having caused serious physical injury to the victim and without having engaged in conduct described in AS 11.41.410(a)(1) or (2) [sexual assault in the first degree] or AS 11.41.420 [sexual assault in the second degree].
Also significant is AS 11.81.900(b)(1) which provides in relevant part:
In this title, unless otherwise specified or unless the context requires otherwise,
(1) "affirmative defense" means that
(A) some evidence must be admitted which places in issue the defense; and
(B) the defendant has the burden of establishing the defense by a preponderance of the evidence^]
Prior to sentencing, Robison filed notice of a mitigating factor and the state filed notice of aggravators. Robison contended that the conduct constituting his offense was among the least serious conduct included in the definition of the offense. AS 12.55.155(d)(9). The state contended that the conduct constituting the offense was among the most serious included in the offense "because it was part of a series of five inappropriate approaches to women who did not know him." AS 12.55.-155(c)(10).
In support of the aggravating factor, the state called three witnesses at the sentencing hearing and relied on the testimony of a fourth witness at trial. Each of these women testified that Robison had approached them at a mall, asked directions, and impressed them as "weird," "strange," or "unusual." One of the women, L.S., testified that Robison called to her while sitting in his truck and asked directions to Spenard. As she looked over to answer him she thought, but was not certain, that he was masturbating. L.S. could not positively identify Robison as the man she had seen, but her description generally matched Robison and his vehicle. Construing this evidence most favorably to the state, it appears that Robison approached female strangers in shopping malls and asked for directions as an unsuccessful ploy in making their acquaintance. Judge Ripley relied heavily on this evidence in rejecting the mitigating factor and concluding that Robi-son's conduct was among the most serious included within the definition of the offense of which he was convicted.
The state concedes that this aggravating factor refers only to defendant's conduct in committing the offense and not to his propensity to commit similar crimes. In the state's view, however, Judge Ripley relied on the other contacts only as evidence indicating the character of the present assault. The state claims that in the judge's view, this evidence established that the defendant's act was not an impetuous isolated incident but a calculated approach, part of an ongoing plan to gain access to women as a means of sexually assaulting them. Finally, the state argues that Judge Ripley, in performing his role as sentencing judge, could disregard the jury's contrary conclusion regarding the victim's having been injured and could find that the defendant committed a more serious offense than that for which he was ultimately convicted. Monroe v. State, 752 P.2d 1017, 1021 (Alaska App.1988); Fee v. State, 656 P.2d 1202, 1204 (Alaska App.1982). See also Ridgely v. State, 739 P.2d 1299, 1302 (Alaska App.1987); Huckaby v. State, 632 P.2d 975, 976-77 (Alaska App.1981). In the state's view, Judge Ripley's rejection of the jury's finding would permit the conclusion that Robison's offense was among the most serious within the definition of the crime. See AS 12.55.155(c)(10); Braaten v. State, 705 P.2d 1311, 1322-23 (Alaska App.1985); Peetook v. State, 655 P.2d 1308, 1311-12 n. 3 (Alaska App.1982).
We reject these arguments. First, the jury's finding that Robison sustained his burden of proving, by a preponderance of the evidence, that he released his victim without harm was binding on the trial court. See Briggs v. State, 732 P.2d 1078, 1081 (Alaska 1987) (order suppressing breathalyzer test in criminal case operates as collateral estoppel in license revocation proceeding). Cases such as Schnecker v. State, 739 P.2d 1310, 1312-14 (Alaska App.1987), Ridgely and Huckaby are distinguishable. In those cases, the defendant either pled to a lesser offense, or was convicted of the lesser offense, rather than the greater, arguably because the jury had a reasonable doubt regarding the element that distinguished the greater and lesser offenses. In contrast, the jury in this case expressly found, by a preponderance of the evidence, that the victim was released unharmed. In this circumstance, the trial court was bound by that finding.
We agree with the parties that the trial court could not find Robison's conduct to be among the most serious within the definition of the offense based upon his contacts with other women. This is true even if those contacts supported an inference that the instant offense was premeditated and not impulsive. The fact that a kidnapping is premeditated does not, standing alone, take it out of the class of typical offenses. Judge Ripley erred in concluding that Robison's conduct fell within AS 12.55.155(c)(10). On the other hand, Robison's reasons for characterizing his offense as among the least serious included within the offense seems to be subsumed within the affirmative defense. See AS 12.55.155(e). We therefore conclude that the trial court was not clearly mistaken in rejecting the mitigating factor.
The judgment of the superior court is AFFIRMED. Robison's sentence is VACATED and this case REMANDED for resentencing to the presumptive term.
. Robison challenges both his sentence and his conviction on appeal. We briefly address his merit appeal in this footnote. His sentence appeal is discussed in the text of this decision. Robison challenges his conviction on two grounds. First, he argues that he is entitled to a new trial because the investigating officer signaled the prosecuting witness and thereby coached her during her testimony. The trial court noticed the officer's actions and brought it to counsel's attention. Defense counsel expressly waived any remedy, indicating that the jury was probably aware of the officer's actions and would hold it against the state. It would appear that counsel's conscious waiver of a remedy during trial would be binding on the defendant in the absence of ineffective assistance of counsel. Lanier v. State, 486 P.2d 981, 983-88 (Alaska 1971). Since counsel obviously had strategic reasons for foregoing a remedy, i.e., a cautionary instruction, we are not able to find either plain error or ineffective assistance of counsel. See Potts v. State, 712 P.2d 385, 394 n. 12 (Alaska App.1985). Robison notes that he brought a "habeas corpus" petition raising this issue after trial, which he contends should be construed as a motion for new trial. In Robison's view, by seeking "habeas corpus," he brought the issue to the attention of the trial court and therefore should not be bound by the plain error rule. As we have seen, however, matters of trial strategy are within the waiver rule established in Lanier. In addition, the plain error rule applies to all objections which should have been made at trial. Clearly, the trial court gave Robison an opportunity to seek a remedy during trial. His failure to do so could not be cured by a post-trial motion for new trial or for "habeas corpus." Id. at 390 n. 8.
Robison next argues that he is entitled to a new trial because one of the jurors voting to convict him later reconsidered his verdict and concluded that it was the product of fatigue. Robison concedes that we would have to overrule a number of Alaska Supreme Court cases and an applicable evidentiary rule in order to grant him relief. See, e.g., A.R.E. 606(b) and, e.g., LaLonde v. State, 614 P.2d 808, 811 (Alaska 1980). We have no power to overrule our state's supreme court. We note that the United States Supreme Court, likewise, would not grant Robison relief on this claim. See Tanner v. United States, — U.S. -, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987). We therefore find no error.
. The state also filed notice that another aggravating factor, that the victim sustained physical injury as a result of the defendant's conduct, applied. See AS 12.55.155(c)(1). The trial court made no finding with respect to this factor. We believe that this aggravating factor is precluded by the affirmative defense found by the jury.
. If Judge Ripley felt that Robison's conduct in accosting the other women established a dangerous pattern of behavior, warranting a suspended sentence in excess of the presumptive term, his remedy was to refer the case to the three-judge panel for sentencing on the theory that the presumptive term was too lenient. See, e.g., AS 12.55.165-.175. | [
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OPINION
SINGLETON, Judge.
Darryl W. Sledge was convicted of one count of sexual assault in the first degree, an unclassified felony. AS 11.41.410(a)(1). He was sentenced to serve the applicable eight-year presumptive term. AS 12.55.-125(i)(l). Sledge appeals. We conclude that it is necessary to remand this case for a further hearing to determine whether Sledge was denied his constitutional right to confront his accuser.
FACTS AND PROCEEDINGS
D.W., a fourteen-year-old girl, testified that on November 9, 1985, she accepted a ride with Darryl W. Sledge in his automobile. D.W. agreed to accompany Sledge to the store, and then Sledge was to take her home. D.W. testified that instead of taking her home as promised, Sledge purchased beer at the store and then drove her to a secluded place where he attempted to sexually assault her. He succeeded in penetrating her vagina with his finger. The sexual assault was interrupted by a passing police officer. Sledge recounted a substantially different story. He agreed that he gave D.W. a ride in his car, but contended that D.W. gave him money and he bought her a six-pack of beer. Sledge further stated that after leaving the store he and D.W. drove around so that D.W. could smoke a marijuana cigarette. Sledge claimed that he and D.W. got into an argument because she was drinking in his car. He stopped the car and poured out the beer she had opened. Sledge said that when the police arrived, D.W. panicked and jumped out of the ear. D.W.'s testimony that she was sexually assaulted was corroborated in part by medical testimony that she had a small cut on the lower part of her vagina.
Prior to the start of trial, Sledge filed a discovery motion, requesting D.W.'s "Child in Need of Aid" (CIÑA) file, and her file from the Division of Family and Youth Services (DFYS). In support of his request, he argued in part:
[D.W.] alleged that Sledge had sexually assaulted her in his vehicle. She denied consuming any alcohol or marijuana with Sledge. Sledge claimed that [D.W.] went with him voluntarily and consumed alcohol at her own request. [D.W.] informed the officers that she was a ward of the state. Therefore, she had been unwilling to violate any drinking laws with Sledge.
[D.W.] was the one who informed the officers of her legal custody status. Discovery of [D.W.'s] Child in Need of Aid file, both the court file and the Division of Family and Youth Services file, is necessary for Sledge to explore the possibility that [D.W.] is biased and motivated to shade or fabricate her testimony in order to avoid detrimental consequences for herself in the Child in Need of Aid case.
Sledge agreed that Superior Court Judge S.J. Buckalew, Jr., the omnibus hearing judge, should conduct an in camera inspection of the DFYS file to determine if anything in the file should be disclosed to Sledge. After conducting the in camera inspection, Judge Buckalew determined that nothing in the DFYS file should be disclosed to Sledge.
Superior Court Judge J. Justin Ripley substituted for Judge Buckalew at trial and sentencing. Based on Judge Buckalew's ruling that nothing in the DFYS file was discoverable, the state requested a protective order barring Sledge from inquiring into D.W.'s residence in a foster home during the course of trial. In response, defense counsel pointed out that:
[D.W.], in making the statement to the police, explaining why she did certain things, or did not do certain things, raised up the fact that she was a ward of the state and therefore to avoid getting in trouble she did not do certain things in the car with Mr. Sledge. And since she brought it up, I intend to ask her about that.
Defense counsel therefore requested that Judge Ripley not enter a protective order. Judge Ripley replied that this would appear to be going into "misconduct of the victim."
Defense counsel responded:
Well, mostly motive and bias actually. As to — she's saying that she's under some sort of restriction. I don't know what the restrictions are, I don't know if — anything about that. But there is something there that she did not drink with Mr. Sledge, or accept what she claims is an offer of marijuana because she was a ward of the state. And she was afraid that if she violated whatever those conditions were, she would get in trouble with the state and with her foster parents.
Judge Ripley asked that no examination on the matter be conducted until a hearing out of the presence of the jury could be held to determine whether the evidence had any relevance. Judge Ripley did not review D.W.'s DFYS files, but he accepted Judge Buckalew's ruling on this matter, concluding that it was the law of the case unless relaxed at a later time.
After D.W. had testified on direct and cross-examination, the jury was excused and Sledge renewed his request to inquire into her wardship status. The defense counsel reasoned:
Your honor, my request is that I be allowed to — at least outside the presence of the jury to ask her about her — why she is a ward of the state. The reason is this. When the police officer — she was explaining to the police officer that I don't — I didn't take any marijuana, I told him I didn't want any and I wouldn't have any beer because I'm a ward of the state and that would violate my — whatever the . conditions were. I simply want to ask her . I assume it's a CINA situation. But I don't know why she is a — of course. And it may be entirely innocent. It may, however, be related to prior difficulties. I don't know whether her being there would result in some sort of adjudication against her. That's what I want to get to. And I know — and it may well be entirely innocent and not something that the jury should hear. It may well be, however — it may go toward motive or bias. I don't know. And I think we should at least ask her outside the presence [of the jury] and clarify that.
The state did not dispute this offer of proof, arguing that if, in fact, D.W. was worried about her wardship status, that would motivate her to refrain from drugs and alcohol. The state's attorney said:
That she didn't want — no, I don't want to smoke any marijuana because I'm not allowed to because I'm in the custody of the state. This is the statement that he wants to tap all this on to. So, even if it shows that she's in the custody of the state and she's under some kind of probation, all it shows is that she was telling the truth when she said that. It just drags in all these bad acts to confirm her statement, which is not before the jury.
Judge Ripley concluded that Judge Buck-alew's prior ruling barring discovery of D.W.'s wardship status should stand. Thus, the ruling precluded the.cross-examination requested by Sledge.
Additionally, on direct examination of Sledge, defense counsel attempted to elicit testimony from Sledge that D.W. told him she was a ward of the state. Sledge had been explaining his version of what occurred when the police arrived. The state objected, and outside the presence of the jury, Sledge told the court the statement he wanted to make. He was allowed to say, in front of the jury, that D.W. panicked and jumped out of the car, saying, "I don't want to get my parents in trouble." Sledge wanted to testify that D.W. said she didn't want to get her parents in trouble because she was a ward of the state. He also wanted to testify that immediately before jumping out of the car D.W. said, "I'm in . trouble now." Judge Ripley ruled that Sledge could mention neither that D.W. told him she was a ward of the state nor that she was in foster care. The jury found Sledge guilty of sexual assault in the first degree. AS 11.41.410(a)(1). No statutory, aggravating, or mitigating factors were proposed at trial. Sledge, however, requested that his case be referred to the three-judge panel. AS 12.55.165-175. Judge Ripley denied Sledge's request, and imposed the applicable eight-year presumptive term. AS 12.55.125(i)(l).
DISCUSSION
Sledge first argues that the trial court abused its discretion by excluding evidence regarding D.W.'s status as a ward of the state. Sledge argued that D.W.'s statements regarding her wardship status were made at the scene and reflected her state of mind at the time she first told the police that Sledge assaulted her. In Sledge's view, this information could be relevant to show why D.W. apparently had a particularized fear that, if caught in the activity Sledge said she had engaged in, i.e., drinking beer and smoking marijuana, she could be subject to adverse consequences that would not be present if she were not a ward of the state. Consequently, in Sledge's view, this would show D.W.'s bias and motive to fabricate. D.W. might have hoped that by falsely accusing Sledge of sexual assault, she would divert attention from her own activities and gain sympathy, rather than sanction, from the authorities. Sledge claims that by not allowing D.W.'s foster care status into evidence, the trial court denied Sledge his right to cross-examine the prosecution's witness in violation of the confrontation clauses of the United States and the Alaska constitutions. U.S. Const. amend. VI; Alaska Const., art. 1, § 11. See Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); Jackson v. State, 695 P.2d 227, 230-33 (Alaska App.1985); Fox v. State, 685 P.2d 1267, 1272-73 (Alaska App.1984).
The state argues that the evidence was irrelevant and, even if relevant, its probative value was outweighed by the prejudice involved in violating D.W.'s privacy with regard to her status as a ward of the state. See Alaska Evidence Rule 403; Larson v. State, 656 P.2d 571, 575 (Alaska App.1982) (Alaska Evidence Rule 403, when properly applied, does not violate a defendant's constitutional right to confront the witnesses against him and present evidence in his own behalf).
Finally, the state argues that any error was harmless. First, the state notes that Sledge was allowed to testify to the following before the jury: that D.W. told him she did not wish to get her parents in trouble, and that she feared she was in trouble by being with Sledge in a parked car. The state points out that Sledge was able to argue this point in closing argument. Second, the state argues that the probative value of the evidence was weak because, assuming the worst, D.W.'s wardship status would not put her under the same pressures to "play ball with the state," that a person on probation for a criminal or delinquent act would have. Third, the state points out that D.W.'s testimony was substantially corroborated by medical evidence of the injury to her vagina and by physical evidence of her torn clothing. Fourth, the state points out that when D.W. ran from Sledge's vehicle to the police vehicle, she ignored a snarling police dog. In the state's view, this is more consistent with a frightened rape victim seeking protection than a calculating liar seeking to explain away a consensual sexual encounter and voluntary consumption of marijuana and alcohol. Finally, the state points to Sledge's allegedly false and inconsistent exculpatory statements to the police which the state contends establish his consciousness of guilt.
We are concerned that Sledge may have been restricted in his ability to present evidence to show the victim's motive to fabricate, and that he was unable to adequately present his theory of defense to the jury. Sledge was only able to make a generalized argument as to D.W.'s motive to testify falsely. Essentially, Sledge was only left with the argument that anyone in D.W.'s position would have a motive to testify falsely. It is possible that Sledge was prevented from making the much stronger argument that D.W. had a special fear of adverse consequences because she was a ward of the state and under foster care. Sledge could argue that another young woman who was not a ward of the state would not have the same fear under similar circumstances. D.W. attached great importance to her wardship status. This is indicated by her statements to the police and her fear that adverse consequences would result if she had voluntarily consumed alcohol and smoked marijuana. Thus, her wardship status strongly suggests that she had a motive to fabricate. Consequently, the exclusion of evidence concerning D.W.'s status as a ward of the state may have unduly infringed on Sledge's confrontation rights. We therefore remand this case for a hearing to enable counsel to voir dire D.W. regarding her statements to the police and her understanding of the circumstances surrounding her wardship status. If the court concludes on remand that a jury could reasonably conclude that D.W. did tell the police she would not take drugs or use alcohol because she was a ward of the state, Sledge should be granted a new trial so that a jury can consider the effect of such statements. This could indicate D.W.'s state of mind and might support an inference that she had a motive to falsely accuse Sledge of a sexual assault. The state may be correct that D.W.'s concerns about her wardship status would motivate her to refrain from alcohol and marijuana and, thus, corroborate her claims. However, as Sledge points out, it might also motivate her to lie about her activity with Sledge if, in fact, she had consumed drugs and alcohol and was concerned about the consequences of her conduct being discovered. In such cases, it was for the jury to determine the true interplay between D.W.'s state of mind and the accuracy of her testimony.
We stress the limited nature of our holding. The fact that D.W. may have voluntarily used drugs or alcohol with Sledge in violation of her wardship conditions clearly would not provide a defense to his sexually assaulting her. Since D.W. was only fourteen years old, her consent would not provide a complete defense to a charge of sexual assault. The significance is the possibility that D.W.'s use of drugs or alcohol might, under the circumstances, motivate her to falsely accuse Sledge of sexual assault when they were discovered by the police. We stress that it is D.W.'s state of mind exemplified by her statements to the police that is in issue, not D.W.'s wardship as such, or the reasons why she may have been in custody. We are not suggesting that extrinsic evidence regarding the facts leading to her status is admissible unless necessary to enable the jury to evaluate her state of mind in accusing Sledge of a sexual assault.
The trial court should address one additional issue on remand. Sledge argues that he should have had access to any information in D.W.'s DFYS and CINA files that would be relevant to show her bias or motive to fabricate. The state argued at trial that only juvenile adjudications relevant to D.W.'s truth and veracity should be discoverable. See Alaska Evidence Rule 609(e). At the time Judge Buckalew reviewed the files, he failed to indicate what type of information he viewed as discoverable. In his findings after remand, however, Judge Buckalew indicated that he viewed the material with the intent to disclose only material relating to the witness' credibility and veracity. It appears that a broader standard for disclosure is required.
In Braham v. State, 571 P.2d 631 (Alaska 1977), the Alaska Supreme Court considered the state's duty to disclose otherwise privileged information to a criminal defendant and stated that only relevant evidence must be disclosed. The court explained that the term "relevant" encompassed both logical relevance and materiality. Id. at 643 n. 17. Nondisclosure, the court indicated, would be proper only if the prosecution showed that disclosure would be inconsistent with enforcement or protection of the privacy interests of the individual, and if the information was not relevant to the defense. "Disclosure is . required if the judge's in camera inspection showed that the material was relevant to the defense — whether or not the prosecutor had demonstrated that discovery would be inconsistent with enforcement or protection efforts." Id. at 643. Relevant evidence, in the context of this case, would seem to include evidence showing D.W.'s bias or motive to fabricate.
The United States Supreme Court recently decided a case very similar to the one at bar. In Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987), the Court held that the defendant was not entitled to disclosure of certain records pertaining to investigation into the victim's sexual abuse. The Court approved an in camera review of the records by the trial court similar to the review required by Braham. Id. 107 S.Ct. at 1002-04.
With regard to the standard of disclosure, the Court stated that any material evidence should be disclosed to the defendant. Material evidence means any evidence where "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceedings would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." Id. 107 S.Ct. at 1001 (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383-84, 87 L.Ed.2d 481 (1985)). In his concurring opinion, however, Justice Blackmun points out that evidence which could be used to impeach a witness by demonstrating bias would be within the court's definition of materiality. Ritchie, 107 S.Ct. at 1006 n. 2 (Blackmun, J., concurring). We agree with this conclusion. Therefore, on remand, the judge reviewing D.W.'s DFYS and CINA files should disclose to Sledge any information that is relevant to show D.W.'s bias or motive to fabricate, as well as any other relevant evidence.
One additional point needs clarification. In Ritchie, the Supreme Court stated that, "the duty to disclose is ongoing; information that may be deemed immaterial upon original examination may become important as proceedings progress, and the court would be obligated to release information material to the fairness of the trial." Ritchie, 107 S.Ct. at 1003. In the present case, Judge Buckalew reviewed the files, but Judge Ripley presided over the case at trial. To comply with the ongoing duty of disclosure, the trial judge, at trial, must review the files. Consequently, the trial judge, on remand, should review the files to determine whether there was any discoverable material.
The judgment of the superior court is REVERSED, and this case is REMANDED for further hearing to determine whether D.W. made statements to the police indicating a motive to falsely accuse Sledge of sexual assault. If the court is satisfied that such statements were made under circumstances which would permit a jury to infer bias, a new trial should be granted; if, on reconsideration, any materials in D.W.'s file should have been made available to the defense and, if made available, might have affected the results of the trial, a new trial should be granted. If not, the trial court may reinstate Sledge's conviction.
. It was unclear from the original record exactly what files Judge Buckalew inspected. This issue was remanded to Judge Buckalew for clarification. After this issue was remanded, DFYS was ordered to turn over all of D.W.'s files. According to Judge Buckalew's findings after remand, DFYS had turned over additional files that were not turned over to Judge Buckalew prior to trial. Consequently, Judge Buckalew did not have an opportunity to review all of D.W.'s DFYS files prior to trial.
. D.W.'s DFYS and CINA records are confidential, and access to them can be had "only with the court's permission and only by persons having a legitimate interest in them." AS 47.10.-090(a). The use of this information to impeach D.W. by showing her motive to fabricate would appear to give Sledge a legitimate interest in the records. Therefore, if there was information in the files that could be used to impeach D.W., then the statute would allow disclosure.
. On appeal, Sledge raises two additional issues. First, Sledge argues that the trial court erred in denying his motion to dismiss the case for violation of Alaska Criminal Rule 45. This issue is foreclosed by Lindsay v. State, 698 P.2d 659, 662-63 (Alaska App.1985). Second, Sledge also argues that the trial court erred in refusing to refer his case to the three-judge panel for sentencing. Our decision to remand this case for further proceedings may render sentencing issues moot. Consequently, we decline to comment upon them at this time. Should the trial court, on remand, reinstate Sledge's conviction, Sledge may reinstate his sentencing appeal in this court. | [
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"FACTS\nMATTHEWS, Chief Justice.\nOn May 20, 1983, the State of Alaska filed a complaint against Oli(...TRUNCATED) | [-0.036196544766426086,-0.01607118360698223,-0.012386874295771122,0.016650093719363213,0.03697868064(...TRUNCATED) |
"OPINION\nMATTHEWS, Justice.\nEcho Bay Alaska, Inc., applied to the City and Borough of Juneau in No(...TRUNCATED) | [-0.0023125531151890755,-0.014850359410047531,-0.044892508536577225,-0.03974495455622673,0.020309174(...TRUNCATED) |
"OPINION\nBRYNER, Chief Judge.\nMagistrate Paul K. Verhagen tried Stephen J. Stewart and found him g(...TRUNCATED) | [-0.021497396752238274,-0.0014661779860034585,-0.008401604369282722,-0.005198038183152676,0.05306039(...TRUNCATED) |
"OPINION\nEASTAUGH, Justice.\nI. INTRODUCTION\nThis case concerns the effect of a personal injury re(...TRUNCATED) | [-0.02554420195519924,-0.012251208536326885,-0.04646692052483559,-0.015564624220132828,0.02000499702(...TRUNCATED) |
"OPINION\nCOMPTON, Chief Justice.\nI. INTRODUCTION\nPier Hale appeals the superior court's af-firman(...TRUNCATED) | [-0.004305300302803516,-0.019296487793326378,-0.03968104347586632,-0.022958898916840553,0.0309063438(...TRUNCATED) |
End of preview. Expand
in Dataset Viewer.
The Caselaw Access Project
In collaboration with Ravel Law, Harvard Law Library digitized over 40 million U.S. court decisions consisting of 6.7 million cases from the last 360 years into a dataset that is widely accessible to use. Access a bulk download of the data through the Caselaw Access Project API (CAPAPI): https://case.law/caselaw/
Find more information about accessing state and federal written court decisions of common law through the bulk data service documentation here: https://case.law/docs/
Learn more about the Caselaw Access Project and all of the phenomenal work done by Jack Cushman, Greg Leppert, and Matteo Cargnelutti here: https://case.law/about/
Watch a live stream of the data release here: https://lil.law.harvard.edu/about/cap-celebration/stream
Post-processing
Teraflop AI is excited to help support the Caselaw Access Project and Harvard Library Innovation Lab, in the release of over 6.6 million state and federal court decisions published throughout U.S. history. It is important to democratize fair access to data to the public, legal community, and researchers. This is a processed and cleaned version of the original CAP data.
During the digitization of these texts, there were erroneous OCR errors that occurred. We worked to post-process each of the texts for model training to fix encoding, normalization, repetition, redundancy, parsing, and formatting.
Teraflop AI’s data engine allows for the massively parallel processing of web-scale datasets into cleaned text form. Our one-click deployment allowed us to easily split the computation between 1000s of nodes on our managed infrastructure.
BGE Embeddings
We additionally provide bge-base-en-v1.5 embeddings for the first 512 tokens of each state jurisdiction and federal case law as well as the post-processed documents. Mean pooling and normalization were used for the embeddings.
We used the Sentence Transformers library maintained by Tom Aarsen of Hugging Face to distribute the embedding process across multiple GPUs. Find an example of how to use multiprocessing for embeddings here.
We improved the inference throughput of the embedding process by using Tri Dao’s Flash Attention. Find the Flash Attention repository here.
You can read the research paper on the BGE embedding models by Shitao Xiao and Zheng Liu here.
The code for training BGE embedding models and other great research efforts can be found on GitHub here.
All of the datasets used to train the BGE embedding models are available here
The bge-base-en-v1.5 model weights are available on Hugging Face. The model card provides news, a list of other available models, training, usage, and benchmark information: https://huggingface.co/BAAI/bge-base-en-v1.5
Licensing Information
The Caselaw Access Project dataset is licensed under the CC0 License.
Citation Information
The President and Fellows of Harvard University. "Caselaw Access Project." 2024, https://case.law/
@misc{ccap,
title={Cleaned Caselaw Access Project},
author={Enrico Shippole, Aran Komatsuzaki},
howpublished{\url{https://huggingface.co/datasets/TeraflopAI/Caselaw_Access_Project}},
year={2024}
}
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