Opinion
Court of Appeals No. A-13066 No. 6861
02-19-2020
DARIN ALLEN DEACON, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.
Appearances: Matthew A. Michalski, Attorney at Law, Anchorage, for the Appellant. Jennifer L. Ivers, Assistant Municipal Prosecutor, and Rebecca A. Windt Pearson, 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, although it may be cited for whatever persuasive value it may have. See McCoy v . State , 80 P.3d 757, 764 (Alaska App. 2002). Trial Court No. 3AN-16-04008 CR
MEMORANDUM OPINION
Appeal from the District Court, Third Judicial District, Anchorage, Jo-Ann Chung, Judge. Appearances: Matthew A. Michalski, Attorney at Law, Anchorage, for the Appellant. Jennifer L. Ivers, Assistant Municipal Prosecutor, and Rebecca A. Windt Pearson, Municipal Attorney, Anchorage, for the Appellee. Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges. Judge WOLLENBERG.
In May 2016, Anchorage Police Officer James Dokken responded to a reported assault. Delilah Arrow alleged that, approximately twelve hours earlier, Darin Allen Deacon had grabbed her, dragged her out of the room in which they were arguing, and kicked her in the head, injuring her face and damaging her glasses. Arrow told Officer Dokken that a woman named "Jessie" had witnessed the assault.
The Municipality of Anchorage charged Deacon with assault under Anchorage Municipal Code 08.10.010(B)(1), and Deacon's case proceeded to a jury trial. At trial, Deacon argued that he had not assaulted Arrow and that the Municipality had failed to prove its case. The jury found Deacon guilty as charged.
Deacon now appeals his conviction and asserts three claims, all of which stem from a statement made by Officer Dokken during his testimony.
At trial, Officer Dokken testified that Deacon was not present when he responded to the reported assault, but that he was able to contact Deacon by phone. Officer Dokken told Deacon that he was calling about an argument that had occurred between Deacon and Arrow earlier in the day. According to Officer Dokken's testimony, Deacon responded that "he had been defending one of his friends at the time — that [Arrow] had tried to assault one of his friends and then he acted accordingly to defend . . . his friend." (The parties agree that the friend to whom Deacon referred was "Jessie.") Officer Dokken then asked if they could talk in person, but Deacon hung up.
Deacon's attorney lodged no objection to this testimony.
On cross-examination, Deacon's attorney confronted Officer Dokken with his police report, and asked him whether his report included any mention of Deacon's assertion that he was defending someone. Officer Dokken acknowledged that his police report did not mention that, and that his testimony was instead based on his recollection.
At a subsequent bench conference, the prosecutor referred to Officer Dokken's testimony regarding Deacon's statement that he had acted in defense of Jessie. In response, the court noted that Deacon's attorney had not claimed "defense of others" or asked for an instruction on the defense. Deacon's attorney did not respond, or otherwise request an instruction. As a result, no instruction on the use of force in defense of a third person was given.
The only objection Deacon's attorney made to Officer Dokken's testimony regarding Deacon's statement occurred on redirect examination. During redirect, the prosecutor asked Officer Dokken what Deacon had said to him on the phone. Deacon's attorney objected that the question had been "asked and answered" and that Officer Dokken "lacked knowledge" of the statement because it was not in his police report. The court overruled the objection. Deacon's attorney did not argue that Officer Dokken was precluded from testifying about Deacon's statement because the Municipality had committed a discovery violation, nor did he request any other relief like a mistrial.
On appeal, Deacon raises entirely new arguments that are not supported by the record.
First, Deacon argues that Officer Dokken's testimony regarding Deacon's out-of-court statement was hearsay and inadmissible. This is incorrect. Deacon's statement, when offered by the Municipality, was an admission by a party-opponent. As a result, it was not hearsay under Alaska Evidence Rule 801(d)(2)(A).
See Alaska R. Evid. 801(d)(2)(A) (providing that a statement is not hearsay if "[t]he statement is offered against a party and is . . . the party's own statement, in either an individual or a representative capacity"); Sipary v. State, 91 P.3d 296, 304 n.9 (Alaska App. 2004).
Second, Deacon argues that the Municipality failed to disclose Deacon's statement to him prior to trial, and that this failure violated the Municipality's discovery obligations under Alaska Criminal Rule 16(b)(1)(A)(ii). Under this rule, the prosecutor is required to disclose to the defendant "the substance of any oral statements made by the accused." Deacon argues that, as a result of the purported discovery violation, he was entitled to a mistrial.
But Deacon never argued in the trial court that the Municipality violated its discovery obligations, so there is no factual record for us to review. Deacon is essentially asking us to find that the trial judge had a sua sponte obligation to recognize a discovery violation and intervene even though there is no indication that the judge had access to discovery, nor is there any reason to believe that the judge would have been privy to discussions between the parties unless otherwise advised. The fact that Deacon's statement was not in Officer Dokken's police report does not mean that the prosecutor failed to disclose it to Deacon's attorney in some other manner. Defense attorneys commonly confront police officers with omissions from their police reports; this alone would not necessarily have put the judge on notice of a corresponding discovery violation.
We note that Deacon is represented on appeal by the same attorney who represented him in the trial court, so we assume that the Municipality did not in fact disclose the statement to him in the trial court (otherwise he could not, in good faith, raise this issue on appeal). But if the Municipality did not disclose the statement, it was incumbent on the attorney to raise this issue to the trial judge in the first instance and request relief. In the absence of any such request, we find no plain error.
Alaska R. Prof. Conduct 3.1 & 3.3(a)(1).
See Adams v. State, 261 P.3d 758, 764 (Alaska 2011) ("Plain error is error that (1) was not the result of intelligent waiver or a tactical decision not to object; (2) was obvious; (3) affected substantial rights; and (4) was prejudicial.").
Finally, Deacon argues that the trial court committed plain error in failing to sua sponte instruct the jury on the use of force in defense of a third person. Under AS 11.81.340, "[a] person is justified in using force upon another when and to the extent the person reasonably believes it is necessary to defend a third person" when the third person would be justified in using that degree of force in self-defense.
"Failure to give an instruction is plain error if reasonable judges could not differ in concluding that the instruction was necessary to adequately inform the jury of the offense, or defenses to the offense clearly established in the evidence, and the failure to give the instruction substantially prejudices the defendant." Here, the judge specifically noted, following Officer Dokken's testimony regarding Deacon's statement, that Deacon's attorney had not requested a "defense of others" instruction. Notwithstanding this clear notice of the potential defense, Deacon's attorney did not request an instruction on the defense. A reasonable judge could conclude that the attorney made a decision to forgo that defense in favor of the defense that he pursued: that Deacon was not involved in the assault on Arrow at all.
Bidwell v. State, 656 P.2d 592, 594 (Alaska App. 1983) (citing Marrone v. State, 653 P.2d 672, 676 (Alaska 1982)).
See Yancy v. State, 733 P.2d 1058, 1063 (Alaska App. 1987). --------
The judgment of the district court is AFFIRMED.