Opinion
Court of Appeals No. A-10857 Trial Court No. 3AN-09-11617 CR No. 6005
12-11-2013
DEBORAH ALLEN, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.
Appearances: John E. McConnaughy III, Law Office of John McConnaughy, Anchorage, for the Appellant. Matthew A. Michalski, Assistant Municipal Prosecutor, and Dennis A. Wheeler, Municipal Attorney, Anchorage, for the Appellee.
NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.
MEMORANDUM OPINION
Appeal from the District Court, Third Judicial District, Anchorage, Alex M. Swiderski, Judge.
Appearances: John E. McConnaughy III, Law Office of John McConnaughy, Anchorage, for the Appellant. Matthew A. Michalski, Assistant Municipal Prosecutor, and Dennis A. Wheeler, Municipal Attorney, Anchorage, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and E. Smith, Superior Court Judge .
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Judge MANNHEIMER.
Deborah Allen operated a non-profit animal rescue business called "Chateau Pampered Purr". In October 2009, Anchorage police officers and animal control officers executed search warrants at two buildings owned by Allen: one located on Kitlisa Drive, and the other located on West Tudor Road. In both buildings, the officers found dozens of animals living in poor conditions.
The officers seized 32 animals at the Kitlisa Drive address — 23 cats, 8 dogs, and a bird — and moved them to the Anchorage animal control facility.
The officers found another 57 animals at the West Tudor Road address — 55 cats and 2 lizards. With Allen's consent, these animals were left at the Tudor Road property because the animal control facility did not have room for them, and the Municipality had no alternative place to house them.
Following a two-week trial in the Anchorage district court, Allen was found guilty of 32 counts of cruelty to animals as defined in Section 08.55.010.A.3 of the Anchorage Municipal Code. One of these counts was a combined count that encompassed all the cats found at the Tudor Road property.
Allen now appeals these convictions.
Allen first argues that her attorney, Ronald West, had a conflict of interest, or at least a potential conflict of interest. Allen concedes that the trial judge brought this matter to her attention, alerted her to the potential conflict of interest, warned her of the possible dangers she faced if she continued to employ Mr. West, and asked her what she wanted to do. Allen further concedes that, in response to the trial judge's questions, she insisted on maintaining her attorney-client relationship with Mr. West. However, on appeal, Allen (who is now represented by a different attorney) contends that the judge's inquiry was not legally sufficient, and that therefore her ostensible waiver of the potential conflict of interest was invalid.
Allen also argues that the trial judge improperly limited the presentation of Allen's defense.
Finally, Allen argues that, at sentencing, the district court ordered her to pay an excessive amount of restitution to the Municipality for the cost of housing and feeding the animals that were seized from the Kitlisa Drive property and taken to the animal control facility. Allen concedes that she is required to reimburse the Municipality for the care of these animals, but Allen contends that her obligation should be offset by the expenses she incurred in continuing to maintain the animals that were left in Allen's care at the Tudor Road property.
For the reasons explained in this opinion, we conclude that none of Allen's claims has merit, and we therefore affirm her convictions.
Allen's claim that the district court failed to adequately ask her about her defense attorney's potential conflict of interest
The record of the proceedings in this case suggests that both Allen and her attorney, Ronald West, had long-running, antagonistic dealings with the Municipality of Anchorage regarding animals. Moreover, at the time of these proceedings, West was himself under investigation for unlawful possession of a wolf hybrid.
Prior to Allen's trial, the Municipality offered a plea agreement to Allen (through West). In response, West sent a counter-offer to the Municipality, via e-mail, just before Allen's trial was scheduled to begin. In this e-mail, West proposed (1) that the Municipality would drop all of its animal cruelty charges against Allen; (2) that the Municipality would guarantee to renew Allen's "special facilities" license to house animals; and (3) that the Municipality would hire him (i.e., Mr. West) as a municipal prosecutor, with the special responsibility of prosecuting animal cruelty cases. Here is the text of West's e-mail:
Ms. Allen will accept a [Notice of Violation] for [improper] sanitation at 7101 Kitlisa; all other charges are dismissed with prejudice; all animals returned; each party to bear their own costs; the [Municipality] renews [Ms. Allen's]
Special Facilities License at both locations[,] and I am hired as an assistant [municipal] prosecutor for one year to work exclusively on prosecuting animal cruelty; case[s] to be carefully screened and investigated and a minimum of two cases per year, to go to trial.
After receiving this communiqué from West, the Municipality promptly brought this matter to the attention of the district court. The Municipality asked the court to make Allen aware of the potential conflict of interest created by West's demand for municipal employment, and to determine whether Allen waived this potential conflict.
The judge then read West's e-mail aloud to Allen. When the judge reached the part of the e-mail where West proposed that he would be hired as an assistant municipal prosecutor for one year, West interjected, "Tongue in cheek."
The judge asked Allen whether she was aware of West's e-mail. Allen replied that she had not seen it. The judge then gave a copy to Allen and called a recess so that Allen could discuss this matter with West.
When court reconvened, the judge expressed concern that West might have made this counter-offer without Allen's knowledge, or without her consent. But Allen explained that she and West had discussed the Municipality's plea offer, and that she was adamantly opposed to the proposed plea agreement.
Allen told the judge that the Municipality's offer was "punitive", and that her response to the offer was, "When pigs fly." Accordingly, Allen explained, her attorney (West) intentionally drafted a counter-offer "that he knew [the Municipality] would not agree to".
When the judge asked Allen directly whether she had been aware that one of the terms of West's counter-offer was that the Municipality hire West as a municipal prosecutor, Allen said that West might have mentioned this to her. The judge then told Allen that this portion of West's e-mail "suggest[ed] that your lawyer may have interests in this case other than those that are solely for your benefit."
But Allen told the judge that even if West actually was negotiating in earnest for municipal employment, this did not bother her. She said that West had worked so hard on her case that he was "deserving" of anything that "comes for him".
The judge then sua sponte broached the subject of West's second potential conflict of interest: the fact that West was being investigated for "a charge relating to animals" — i.e., his alleged unlawful possession of a wolf hybrid. The judge explained that "some of the [same prosecution] witnesses" were involved in both Allen's case and the investigation concerning West. But Allen assured the judge that she was already aware that West was being investigated for owning a wolf hybrid.
The judge suggested that West's decision to represent Allen might raise the same problems as situations where attorneys choose to represent themselves — because it is difficult for an attorney to make "dispassionate judgments" when the attorney has an emotional stake in the outcome of the case.
Even though a group of potential jurors was waiting for jury selection in Allen's case, the judge offered to continue the trial so that Allen would have time to find and hire another attorney if she wished to do so. The judge also explained that Allen should not act hastily — because if she waived these potential conflicts of interest, she would be unable to raise these issues later.
Despite the judge's explanations and warnings, Allen declined the judge's offer of a continuance to look for a new attorney. Allen declared that West was her attorney, that she was "keeping him", and that she had "no problems with whatever he's done." She told the judge that, in her opinion, the Municipality's decision to investigate West for possessing a wolf hybrid was made solely for the purpose of derailing West's efforts to defend her. Allen assured the judge that she "[knew] that [West was] not going to have a problem with [that] case."
The following colloquy then ensued:
The Court: All right. You know, let me ...
Ms. Allen: I'm fully comfortable ...
The Court: ... let me tell you, Ms. Allen, ...
Ms. Allen: ... with Mr. West.
The Court: I hear you saying those things, and, you know, I don't know very much about [the investigation of Mr. West] ...
Ms. Allen: I do.
The Court: But I do know that it would be highly, highly unusual ...
Ms. Allen: Well, it happened.
The Court: Okay. All right. So, do you understand this morning ... that ...
Ms. Allen: Yes.
The Court: ... you are giving up your right to challenge him as being ineffective ...
Ms. Allen: I want Mr. West as my attorney. He has the passion that I need. He's put the work in. He has been there for me.
The judge was still not satisfied that Allen comprehended the potential problem, so he pressed the matter further. He told Allen that he was concerned that West's strong personal feelings about animal cases, and about the Municipality's animal control agency, and about the witnesses involved in the case, would undermine West's ability to objectively evaluate Allen's case, or to objectively evaluate the credibility of the witnesses. The judge explained:
The Court: Sometimes [Mr. West] raises issues that aren't really issues, and [sometimes he] misses issues that really should be issues. And frankly, he's done that repeatedly in this case. And I am not convinced that he's helping you. ...
I'm not suggesting that you don't have a defense, but I am concerned that [Mr. West's] passion[,] his [feelings] about animal control and the [government] witness in this case, are blinding him.
Allen replied, "I understand what you're saying to me, and I see it differently."
The judge then allowed the trial to proceed, with West representing Allen.
On appeal, Allen argues that the trial judge's inquiry into these matters should have been more "searching" and "careful". Allen contends that the judge's inquiry was "inadequate to ensure that she understood and properly considered the [potential] conflicts and the potential damage to her case." Allen further contends that the judge failed to speak to her "in a way that insulated her from the influence of West."
The record we have just quoted shows that Allen's contentions are meritless. The trial judge carefully explained why West might not be an effective and zealous advocate for Allen. And even though Allen's trial was about to begin, the judge offered Allen a continuance so that she could obtain a new attorney. In response, Allen assured the judge that she understood his concerns, but she declared that she viewed matters differently and she intended to keep West as her attorney.
Given this record, we conclude that the judge adequately alerted Allen to the potential problems of having West serve as her attorney, and that the judge gave Allen an adequate opportunity to consider her options and to seek other counsel if she wished to.
We also note that Allen has not pointed to a single instance where West's decisions, or his conduct of Allen's defense at trial, might have been influenced by these potential conflicts of interest. See Douglas v. State, 166 P.3d 61, 90 (Alaska App. 2007) (discussing this as one of the pertinent factors when a defendant asserts that their attorney had a conflicting personal interest).
For these reasons, we reject Allen's claim of error.
Allen's claim that the district court improperly limited the presentation of her defense
On the second day of Allen's trial, after the parties had delivered their opening statements but before they began to present their evidence, the judge spoke to the attorneys outside the presence of the jury:
The Court: I want to bring up one issue, because this sort of came up during the opening statements yesterday.
The charges here ... involve cruelty [to animals] on or about October 6th, 2009. This trial is a snapshot. It's not a movie of [everything that has] gone on between Ms. Allen and Animal Control for the last ten years, or the past year[.] ... This trial is about what happened at [Ms. Allen's] two
facilities on or about October 6th, 2009. That means that the Municipality isn't going to put that history into evidence, and that means that Ms. Allen isn't going to dredge it up in her defense.
Now, obviously, the rules of evidence allow some exceptions to that. But I expect that, to the extent the parties want to bring up things that aren't related to the specific allegations charged in this complaint — [either] the Municipality [or] the defense — that you will make an application to do that outside the presence of the jury.
On appeal, Allen quotes the first two paragraphs of the judge's remarks, and she argues that the judge improperly denied her the opportunity to defend herself against the animal cruelty changes. In particular, Allen contends that the judge denied her the opportunity to acquaint the jury with the series of events that resulted in her housing so many animals, and to introduce evidence that she had been successfully providing care for animals for many years.
But the third paragraph of the judge's remarks — the paragraph that is not quoted in Allen's brief — shows that there is no merit to these contentions. The judge did not prohibit Allen from introducing evidence on these topics. Rather, the judge informed the parties that he wanted to hear an offer of proof before either party introduced evidence on these topics.
The judge's position on this matter was further clarified when Allen's attorney, West, told the judge that he wanted to rely on "Animal Control['s] history of contacts with [Allen]," because "the [alleged] cruelty did not happen in an instant of time." The judge informed West that if this evidence was relevant to Allen's defense, the judge would allow West to present it:
Mr. West: Let us put [our defense] on.
The Court: Okay. I'm going to let you put it on.
Mr. West: All right. And [it] includes some [portions] of the history: how she got the animals; how she became a pet rescuer; what she did to treat these animals. They say she didn't treat them. She has proof that she did. She has to put that on.
The Court: All right. ... With respect to whether or not she treated the animals? Obviously, I would think that's relevant. I mean, within reason. I don't want to hear about how she was treating animals five or six years ago; I'm not going to allow that. But to the extent that she was treating [the] animals [involved in this case], you're going to be able to show that. Okay? That she was providing medical care to them.
But generally, the history [between Ms. Allen and the Municipality] is not relevant to the issues before the Court and before the jury in this case. Okay?
Mr. West: But Your Honor, respectfully, ... this did not happen ... when [the Municipal officers] snapped the camera. Something had to have happened over a period of time for the animals to allegedly be in the condition they were found in. I mean, ...
The Court: Well, ... when we are at that point [in the case], Mr. West, you [should] ask to take a break, and [then] you come up [to the bench] and you can make an offer of proof as to where you're going [to go]. I'll let you make the offer of proof, and then I'll make a ruling. Okay?
Mr. West: Thank you.
In short, the record simply does not support Allen's assertion that the trial judge improperly restricted the presentation of her defense. We note, moreover, that neither Allen's opening brief nor her reply brief lists a single instance where the trial judge prevented Allen's attorney from introducing evidence.
For these reasons, we reject this claim of error.
Allen's claim that the district court should have ordered the Municipality to reimburse her for the costs of maintaining the animals that were left with Allen at the Tudor Road property
As we explained at the beginning of this opinion, municipal officers took custody of several dozen animals that were housed in two buildings owned by Allen: one located on Kitlisa Drive, and the other located on West Tudor Road. The 32 animals found at the Kitlisa Drive address were moved to the Anchorage animal control facility, but the Municipality had no place to house the 57 animals found at the Tudor Road address — so, with Allen's consent, the Municipality left these animals in Allen's care.
Under Anchorage Municipal Code § 08.55.050.D, a person convicted of cruelty to animals "shall pay any and all costs incurred by the [municipal] animal care and control center for [the] animals involved, including ... housing, feed[,] and veterinary care."
When Allen was sentenced, the Municipality sought restitution for the costs of caring for the animals seized from the Kitlisa Drive property. The Municipality did not seek restitution for the Tudor Road animals because those animals remained under Allen's care, and thus Allen had already borne those costs. The district court ultimately ordered Allen to pay approximately $67,000 as reimbursement to the Municipality for the costs of maintaining the Kitlisa Drive animals.
Allen does not challenge the dollar amount of the restitution for the Municipality's care of the Kitlisa Drive animals, but Allen contends that she is entitled to receive a counter-balancing payment from the Municipality for the costs she incurred in maintaining the Tudor Road animals. Allen asserts that, by keeping the animals at her Tudor Road property, she conferred a monetary benefit on the Municipality, and she deserves to be compensated.
Allen misperceives her situation. All of the animals from both properties were seized under the search warrant and were in the legal custody of the Municipality. Thus, Allen was obliged (under the ordinance) to reimburse the Municipality for its expenses relating to the care of all the animals from both properties.
The Municipality took physical custody of the Kitlisa Drive animals, thereby incurring expenses for their care, and Allen was required to indemnify the Municipality for these expenses.
The Municipality did not take physical custody of the Tudor Road animals; instead, the Municipality left those animals in Allen's care. Because of this arrangement, the Municipality incurred no boarding expenses for those animals that Allen was required to indemnify. Instead, Allen directly bore the expenses of maintaining these animals.
But as we explained earlier, the Municipality had legal custody of these Tudor Road animals. And, because Allen was convicted of animal cruelty, she was required to pay the costs of maintaining those animals. If the Municipality had placed the animals somewhere else, Allen would have had to repay those costs. As it was, the Municipality agreed to place the animals with Allen, so Allen paid the costs up front. But she was responsible for those costs in either case.
For these reasons, Allen was not entitled to reimbursement for the money she spent caring for the Tudor Road animals.
Conclusion
The judgement of the district court is AFFIRMED.