Opinion
Court of Appeals No. A-11601 No. 6370
08-31-2016
BRYAN K. CORBETT, Petitioner, v. STATE OF ALASKA, Respondent.
Appearances: Josie Garton, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Petitioner. Michael Sean McLaughlin, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Respondent.
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. Trial Court No. 3AN-12-2773 CR
MEMORANDUM OPINION
Petition for Review from the Superior Court, Third Judicial District, Anchorage, John R. Lohff, Judge. Appearances: Josie Garton, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Petitioner. Michael Sean McLaughlin, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Respondent. Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. Judge MANNHEIMER.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Bryan K. Corbett is currently charged with second-degree assault, based on allegations that he assaulted his son Dupri. Corbett was brought to trial in August 2012. But as we describe in this opinion, Corbett's trial was interrupted for several months — first, because the parties litigated certain evidentiary matters, and then (at the conclusion of this evidentiary litigation) because one of the State's witnesses was unavailable. At the end of this long delay, only four of Corbett's original jurors remained available, so the superior court declared a mistrial.
Corbett acknowledges that, with only four jurors left, there was a manifest necessity for the judge to declare a mistrial. However, Corbett argues that the lengthy interruption of his trial arose from two errors — one committed by the prosecutor, and one committed by the trial judge.
Accordingto Corbett, the prosecutor was at fault for allowing Corbett's trial to begin when the prosecutor did not know whether the alleged victim of the assault, Corbett's son, would be available to testify (because of issues regarding his privilege against self-incrimination). Then, six weeks later, after this Court ruled that Corbett's son was available to testify, Corbett argues that the trial judge abused his discretion when he granted a further continuance of the trial, based on the fact that the State's investigator was now unavailable to testify.
Corbett contends that because the necessity for the mistrial was caused by the prosecutor and the judge, the double jeopardy clause should bar the State from retrying him. But for the reasons explained in this opinion, we conclude that neither the prosecutor nor the trial judge was at fault. Although the lengthy mid-trial delay was unfortunate, the reasons for the delay were valid. We therefore hold that Corbett can lawfully be tried again on the assault charge.
Underlying facts: The delay occasioned by the litigation over Dupri Corbett's privilege against self-incrimination
The first delay in Corbett's trial stemmed from litigation over whether Corbett's son, Dupri, could validly invoke the privilege against self-incrimination and refuse to testify. We described many of the pertinent facts in our prior decision in this case, State v. Corbett, 286 P.3d 772 (Alaska App. 2012).
Corbett was charged with second-degree assault based on evidence that he strangled his son, Dupri, as a method of discipline. According to the State's allegations, this strangling incident came to light when Dupri went to school and a counselor observed an injury to Dupri's neck. When the counselor questioned Dupri about this injury, Dupri said that his father had strangled him to the point where his breathing was cut off.
Corbett, 286 P.3d at 773.
But when Dupri testified before the grand jury, he recanted his earlier accusation and testified that his father had not assaulted him. Despite Dupri's recantation, the grand jury indicted Corbett for assaulting his son.
Ibid.
Because Dupri's testimony at grand jury was largely irreconcilable with his initial report that his father assaulted him, Dupri potentially faced perjury charges for his grand jury testimony. To secure Dupri's testimony at Corbett's trial, the State granted him immunity under AS 12.50.101.
Corbett's case then proceeded to trial. The jury was sworn, the court gave the jury their preliminary instructions, and the two parties delivered their opening statements. In their opening statements, both the prosecutor and the defense attorney told the jury that Dupri would testify.
But just after these opening statements were given, Dupri's attorney arrived in court and asserted that the boy still faced a danger of self-incrimination if he took the stand — because the immunity statute allows the State to prosecute an immunized witness for any perjury the witness may commit while testifying under the grant of immunity.
More specifically, Dupri's attorney declared that the boy's trial testimony was going to conform to the exculpatory version of events that he described to the grand jury. The attorney argued that, since the State obviously believed that this exculpatory version of events was false, the State would likely prosecute Dupri for repeating this exculpatory testimony at Corbett's trial. This prospect, according to Dupri's attorney, meant that Dupri could validly claim the privilege against self-incrimination and refuse to testify.
As we later held in Corbett, this argument was wrong as a matter of law. But the trial judge found this argument convincing, and the judge ruled that, despite the State's grant of immunity, Dupri did not have to testify.
Id. at 776.
The prosecutor told the judge that the State intended to seek appellate review of the judge's ruling, and he asked for a stay of the trial. The trial judge consulted the jurors about their schedules and concluded that, if the trial was stayed for six weeks, there would still be a sufficient number of jurors to resume the trial. The judge then granted a stay until October 22nd.
We reversed the trial judge's decision in an opinion issued on October 1st. But Corbett's trial was interrupted for approximately six weeks (from mid-August to October 1st) while all of this was sorted out.
Corbett's claim that the State was at fault for this delay
In his brief to this Court, Corbett claims that the prosecutor was at fault for the delay occasioned by the litigation over Dupri's privilege against self-incrimination. Corbett argues that the prosecutor never should have consented to have the trial begin when this issue remained unresolved.
But the record shows that on the day Corbett's trial began (i.e., on the day the jury was sworn — the crucial event for double jeopardy purposes), Dupri had already received the grant of immunity from the State, and both the prosecutor and Corbett's defense attorney gave opening statements in which they declared that they expected Dupri to testify.
It is true that Dupri's attorney later convinced the trial judge (mistakenly) that Dupri still had a valid privilege to refuse to testify. But this was not the prosecutor's fault — nor could the prosecutor reasonably be expected to anticipate that the trial judge would heed this mistaken argument and issue a ruling that was inconsistent with the accepted law on this point.
We therefore reject Corbett's claim that the State was to blame for the six-week interruption of the trial needed to resolve the issue of Dupri's privilege against self-incrimination.
Underlying facts: The delay occasioned by the unavailability of the State's investigator (after this Court resolved the litigation over Dupri Corbett's privilege against self-incrimination)
This Court issued our decision in State v. Corbett on October 1st, and the superior court reconvened Corbett's trial in mid-October.
At that time, the prosecutor reported that the State's main investigating officer, Jeremiah Heath, had recently suffered a serious on-the-job injury and would be unavailable until the end of January (i.e., another three and a half months). According to the prosecutor, Officer Heath was the officer who responded to the initial report of assault, who took the photographs of Dupri's injuries, and who conducted the initial police interview in which Dupri named his father as his attacker. In other words, Officer Heath was an important prosecution witness if (as expected) Dupri took the stand and denied that his father had assaulted him.
The trial judge expressed concern that if Corbett's trial was delayed again for so many weeks, too many jurors would be lost. The judge informed the parties that the jury clerk had been in contact with the jurors, and that it looked like there would be problems with at least three jurors if the trial was delayed that long.
Corbett's attorney asked for the prosecutor to obtain more information about Officer Heath's condition. The defense attorney pointed out that even if Officer Heath was too injured to return to his patrol duties until the beginning of February, the officer might still be able to come to court and testify sometime before then. The trial judge agreed, and he directed the prosecutor to obtain more information about Officer Heath's condition.
Three days later, the prosecutor made his report. He told the court that Officer Heath had had surgery performed on his back and shoulder, that he was currently on "heavy narcotics", that he was "currently immobile [throughout] most of [his] upper torso, especially on the right-hand side", and that he was "unable to sit and testify".
Based on this report, Corbett's attorney was apparently satisfied that the officer was unavailable. The defense attorney did not ask for more information, nor did he challenge the information that the prosecutor offered. However, the defense attorney later raised a new objection to the proposed continuance of the trial: the attorney argued that Officer Heath was not an essential witness.
Corbett's attorney acknowledged that Officer Heath had taken Dupri's statement, but the defense attorney suggested that Heath was not the only person in the room with Dupri when Dupri gave his statement, and thus some other person (a civilian witness) might be able to authenticate Dupri's prior statement.
(Everyone implicitly understood that if Dupri repeated the exculpatory version of events that he told the grand jury, then as a practical matter the State would have to introduce Dupri's prior statement — the statement in which he declared that Corbett had strangled him.)
The trial judge observed that, even though some other person might conceivably provide the evidentiary foundation for introducing Dupri's earlier statement, Officer Heath was the State's "case officer". Although the judge did not elaborate further, he apparently was referring to the fact that Officer Heath was the primary investigator in Corbett's case — someone who normally would sit with the prosecutor and assist him throughout the trial.
The judge decided to schedule another status hearing for November 30, 2012, and to put Corbett's trial on hold until then. The judge told the parties that he would have the jury clerk inquire about the jurors' availability for a trial in December, in case it was possible for Officer Heath to testify sooner than the end of January.
At the November 30th status hearing, the prosecutor told the court that Officer Heath was still unable to testify. However, the prosecutor suggested that the court schedule another status hearing for mid-January (i.e., six weeks in the future), to see if Heath might be able to testify by then, or at least to check into the jurors' availability.
For his part, Corbett's attorney demanded an immediate trial — but he did not contest Officer Heath's medical condition or his unavailability to testify, nor did he offer any new argument as to whether Heath was a necessary witness. The judge denied the defense request for an immediate trial, and he set another status hearing for January 18th.
At this January 18th status hearing, Corbett was represented by a new assistant public defender, because his former public defender had retired at the end of December.
The trial judge announced that the juror situation was "frankly ... not particularly encouraging". The judge explained that "[only] two remaining jurors from the original twelve" were available if Corbett's trial began during the last week of January. Corbett's new attorney asked the court to set a trial conference for the last week of January, with trial to begin the first week in February.
But at the trial conference on January 29th, the defense attorney asked for more time. Later conferences were held on February 5th, February 12th, and February 26th. At the first three of these conferences, Corbett's attorney asked for further delay. At the February 26th conference, the prosecutor asked for further time to respond to a recently filed defense motion.
The final status hearing was held on March 14, 2013. At this hearing, the trial judge announced that it was no longer possible to assemble a jury from among the originally selected jurors: "We cannot get more than about a quarter of [those] jurors". The judge declared that he was "left with no real option but to make a finding [of] manifest necessity ... for declaring a mistrial", but the judge asked the attorneys if they had any comments before he formally declared a mistrial. Corbett's attorney objected to the mistrial:
Defense Attorney: I object to a mistrial. My request is that we proceed with the trial with the impaneled jurors.
The Court: ... Does that mean you'd be willing to accept a jury panel of four people?
Defense Attorney: No, Your Honor.
The Court: Well, then ...
Defense Attorney: So I object to trial by any jury other than the originally impaneled jurors, and I object to a mistrial.
Because the defense attorney insisted on having the original jurors decide the case, but was unwilling to have the case decided by a panel of only four (the number of original jurors who remained available), the judge declared a mistrial.
Corbett's argument that the trial judge failed to apply a proper analysis when he evaluated whether Officer Heath's unavailability required a three-month delay of the trial
In Salazar v. State, 559 P.2d 66, 72 (Alaska 1976), the Alaska Supreme Court set forth the factors that a trial judge should consider when a party asks for a continuance to secure the testimony of a currently unavailable witness.
The judge must consider the importance of the witness's testimony: whether the witness's testimony is material to the case, whether the same testimony can be elicited from another source, whether the witness's testimony is cumulative, and whether the witness's testimony is likely to affect the jury's verdict.
In addition, the judge must consider how likely it is that the witness will be available in a reasonable amount of time, and whether the party requesting the continuance has been diligent and has acted in good faith. Finally, the judge must assess the degree to which the requested continuance will inconvenience the court and the other participants in the case.
In his brief to this Court, Corbett faults the trial judge for failing to explicitly refer to these Salazar factors when the judge decided whether to delay Corbett's trial on account of Officer Heath's medical unavailability. But it was not just the judge: the attorneys never mentioned Salazar when they were arguing these matters.
In any event, the record shows that the trial judge's analysis complied with Salazar, even though he did not refer to that case by name.
Officer Heath's testimony was clearly material to Corbett's case. Heath was the officer who interviewed Dupri when he gave his prior inculpatory statement, and Heath was the officer who took the photographs of Dupri's injuries. Heath's testimony would be important to rebut Dupri's expected exculpatory testimony — i.e., Dupri's recantation of his earlier report that his father strangled him.
When the trial judge ruled on the State's request for a continuance, the judge considered the importance of Heath's testimony, whether that testimony could be adequately presented by other witnesses, and also Heath's importance as the chief investigating officer in the case.
Officer Heath's unavailability stemmed from a serious injury and ensuing medical treatment, and the officer's injury occurred while this case was stayed for appellate review (review of the trial judge's ruling regarding Dupri's privilege against self-incrimination). Thus, there was never any dispute that the State's request for a continuance was made diligently and in good faith. And the trial judge repeatedly directed the prosecutor to ascertain exactly how long Heath would remain medically unavailable to testify.
Finally, the judge considered the effect that the continuance would have on the court, on Corbett, and on the jurors.
Given the record here, we conclude that the trial judge did not abuse his discretion when he granted a continuance of Corbett's trial from mid-October 2012 until the end of January 2013 to secure the testimony of Officer Heath.
The trial judge sufficiently considered the potential alternatives to declaring a mistrial
We have just concluded that the trial judge acted within his proper discretion when he delayed Corbett's trial until the end of January because of Officer Heath's unavailability. And, as we explained earlier, Corbett's attorney then requested several continuances and filed motions which (taken together) delayed the trial even more. Finally, in mid-March, the judge ascertained that only four of the original jurors remained available to hear Corbett's case. Corbett's attorney then announced that he would not consent to a jury of four, nor would he consent to re-opening jury selection. At that point, the judge found that there was a manifest necessity for a mistrial.
Corbett argues that the judge made this ruling without sufficiently considering the potential alternatives. But when the trial judge actively elicited the parties' positions as to whether a mistrial was required, Corbett's attorney did not challenge the judge's announcement that only four of the original jurors remained available.
More specifically, the defense attorney did not ask for more details regarding the court's efforts to maintain contact with the jurors, nor did the attorney ask for more detailed information regarding the jurors who had reported themselves unavailable, or for the reasons these jurors gave for declaring themselves to be unavailable. Nor did the defense attorney ask the judge to summon the jurors to court, or to make any other efforts to force them to reconvene.
Thus, to the extent the record does not contain more detailed information, this is largely due to Corbett's failure to ask the judge to elaborate on these matters.
On appeal, Corbett suggests other strategies that the trial judge might have pursued, such as maintaining better contact with the jurors or telephoning the jurors personally to see if more of them might have been willing to return for trial. But the fact that Corbett's trial judge failed to pursue every conceivable method of inquiry and persuasion does not mean that the judge acted unreasonably when he concluded that only four of the original jurors remained available for trial.
Because only four of the original jurors remained available, because Corbett would not consent to proceeding with just those four jurors, and because Corbett would not consent to re-opening jury selection, the trial judge reasonably concluded that there was a manifest necessity for a mistrial.
See Friedmann v. State, 172 P.3d 831, 836 (Alaska App. 2007). --------
Conclusion
We uphold the superior court's ruling that there was a manifest necessity for declaring a mistrial in Corbett's case. Accordingly, the double jeopardy clause does not bar the State from retrying Corbett.