Opinion
A-13409
04-20-2022
JOHN JAY HAMILTON SR., Appellant, v. STATE OF ALASKA, Appellee.
Michael Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. Elizabeth T. Burke, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Trial Court No. 4AK-16-00144 CR Fourth Judicial District, Bethel, Nathaniel Peters, Judge.
Michael Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, under contract with the Office of Public Advocacy, Anchorage, for the Appellant.
Elizabeth T. Burke, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Terrell, Judges.
John Jay Hamilton Sr. was convicted of one count of furnishing alcohol to a minor in a local option community (Shageluk). On appeal, Hamilton argues that the trial court erred when it excluded - as hearsay - evidence of the cell phone records maintained by his cell phone service provider, which he claimed supported the conclusion that he was not responsible for furnishing the alcohol. This constituted plain error, he argues, because phone records, which are generated by a computer system, are not properly considered hearsay, and the records were also admissible under the hearsay exception for business records.
AS 04.16.051(d)(3). Shageluk is a "damp" community - its residents voted to ban the sale of alcohol in the community, but not to prohibit its possession.
But Hamilton describes a ruling never made by the trial court. At trial, Hamilton did not seek to introduce his cell phone records. Instead, he sought to testify about his recollection of what those cell phone records contained. In other words, he sought to testify to the contents of a writing without producing the original writing, in apparent violation of Alaska Rule of Evidence 1002.
See Alaska R. Evid. 1002 ("To prove the content of a writing, recording, or photograph, the original . . . is required . . . .").
Hamilton's opening brief incorrectly claims that he sought to admit the physical cell phone records, and it therefore completely fails to address whether his testimony about his recollection of the contents of those records was admissible. When a party fails to address an issue in their opening brief, they waive the issue due to inadequate briefing, and waiver due to inadequate briefing is generally not correctable in a reply brief.
See Windel v. Carnahan, 379 P.3d 971, 980 (Alaska 2016).
We note that, in his reply brief, Hamilton's appellate attorney does not directly acknowledge that he misrepresented the record in his opening brief. Instead, he claims that there is no evidentiary difference between seeking to introduce testimony about a cell phone record and seeking admission of the cell phone record itself. But this is demonstrably untrue. The Alaska Rules of Evidence clearly distinguish between documentary evidence and testimonial evidence. Thus, contrary to Hamilton's assertion in his reply brief, his failure to acknowledge the distinction between documentary evidence and testimony is, indeed, fatal to his claim.
Compare Alaska R. Evid. art. IX (rules relating to "Documentary Evidence"), and Alaska R. Evid. art. X (rules relating to "Writings"), with Alaska R. Evid. art. VI (rules relating to "Witnesses"), and Alaska R. Evid. art. VII (rules related to "Opinion Testimony and Expert Witnesses"). See also Alaska R. Evid. 1002 (generally requiring introduction of original writing, recording, or photograph to prove its contents); Alaska R. Evid. 1004, 1007 (allowing "other evidence" - such as testimonial evidence - to prove contents of a writing, recording, or photograph only in limited circumstances).
The judgment of the superior court is AFFIRMED.