Opinion
Court of Appeals No. A-12528 No. 6817
09-04-2019
ISAAC RAYMOND SNYDER III, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Carolyn Perkins, Law Office of Carolyn Perkins, Salt Lake City, Utah, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. Nancy R. Simel, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, 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-14-06070 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Kevin M. Saxby, Judge. Appearances: Carolyn Perkins, Law Office of Carolyn Perkins, Salt Lake City, Utah, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. Nancy R. Simel, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges. Judge ALLARD, writing for the Court.
Judge WOLLENBERG, concurring.
Isaac Raymond Snyder III was indicted, along with two co-defendants, for one count of first-degree robbery, one count of first-degree assault, and two counts of third-degree assault based on an incident in which Snyder and his two co-defendants beat up a man in a shopping center. Snyder filed a motion to dismiss the indictment, arguing that the prosecutor introduced improper character evidence and provided improper instructions to the grand jury. The superior court denied the motion to dismiss the indictment, and Snyder now appeals that ruling.
For the reasons explained here, we reject Snyder's claims on appeal, and we affirm the judgment of the superior court.
Snyder's claim that the prosecutor introduced improper character evidence to the grand jury
At the grand jury proceeding, the prosecutor introduced evidence of Snyder's past convictions for assault. The prosecutor also introduced evidence of the co-defendants' past convictions for assault. This evidence was introduced because Snyder and his co-defendants were charged with third-degree assault under a recidivist theory — i.e., Snyder and his co-defendants were charged with recklessly causing physical injury to the victim while having two or more prior qualifying convictions for assault.
AS 11.41.220(a)(5).
Prior to introducing the evidence related to the prior convictions, the prosecutor provided a limiting instruction to the grand jury. At the beginning of the proceedings, the prosecutor explained:
Normally, you do not get to hear about a defendant's prior criminal convictions. In this case, you're going to because they're elements of the crime. You cannot use the prior convictions to assume that the defendants committed the crimes on the particular date charged here in July 2014. These are separate inquiries. You have to find first that they committed the crime on the date in question, and second,
whether they have . . . qualifying convictions as I've already defined them for you.
Snyder later moved to dismiss the indictment, arguing that it was improper for the prosecutor to introduce the prior convictions evidence. The superior court denied the motion to dismiss, ruling that the prior convictions evidence was properly admitted because the convictions were an element of one of the offenses. The superior court also found that the prosecutor's limiting instruction was sufficient to cure any undue prejudice created by the introduction of this evidence.
See Azzarella v. State, 703 P.2d 1182, 1186 (Alaska App. 1985).
Snyder challenges this ruling on appeal. We agree with the superior court's ruling and find no error in its reasoning.
Snyder also raises new arguments that he did not raise below. For example, Snyder now argues that the prosecutor should have bifurcated the grand jury proceedings so that the grand jury did not learn of the prior convictions until after it had deliberated on the other charged offenses. But, as the State points out, Snyder did not raise this argument in his initial motion to dismiss, and the superior court did not rule on it. It is therefore not preserved for appeal.
The proceedings were bifurcated at trial.
See Iyapana v. State, 284 P.3d 841, 846 (Alaska App. 2012).
Snyder also challenges the introduction of nonredacted charging documents. These charging documents were introduced in an attempt to clarify what were otherwise ambiguous criminal judgments for the qualifying prior convictions. However, as Snyder points out, the charging documents also included irrelevant extraneous information, including information about the underlying factual allegations and information about one of the co-defendant's entire criminal history. We agree — and the State concedes — that this extraneous information should have been redacted and not shown to the grand jury. But Snyder fails to recognize that these errors were not preserved. As a general matter, we will not review a claim of error related to a grand jury proceeding unless it is timely raised and ruled on by the superior court. The only exceptions to this rule are grand jury violations that are "singularly egregious" or grand jury violations that are of such a nature that the State would not be able to reindict the defendant if the violation had been timely raised. None of the errors raised by Snyder on appeal rise to that level, particularly given the limiting instruction given to the grand jurors. Accordingly, we find no ground for reversal.
Id.
Id.
Snyder's claim that the prosecutor misinstructed the grand jury
The prosecutor instructed the grand jurors that "[t]he grand jury shall find an indictment when all the evidence taken together, if unexplained or uncontradicted, would warrant a conviction of the defendant." Snyder challenged this instruction, arguing that it failed to inform the jury that it had the discretion to decline to indict, even if the evidence supported the charges.
The superior court rejected this argument. The court concluded that it was not improper for the prosecutor to use the word "shall" rather than "may" because Alaska Criminal Rule 6(a) uses the word "shall." The court also relied on our decision in State v. Leighton, in which we held that the superior court did not err in instructing the grand jury that it "should" return an indictment if the evidence justified it.
See Alaska R. Crim. P. 6(q) ("The grand jury shall find an indictment when all the evidence taken together, if unexplained or uncontradicted, would warrant a conviction of the defendant.").
State v. Leighton, 336 P.3d 713, 716 (Alaska App. 2014).
In a single conclusory paragraph, Snyder challenges the court's ruling on appeal. The State argues that Snyder has inadequately briefed this claim and has therefore forfeited this argument for appellate review. We agree.
Snyder's claim is briefed as though the grand jury's right to nullify is clearly established under Alaska law. But whether the grand jury has a right to nullify — i.e., a right to refuse to return an indictment for any reason — is an open question under Alaska law. Snyder fails to brief, or even acknowledge, this complicated legal question. Snyder also fails to meaningfully address our analysis in Leighton or to address the basis for the superior court's ruling.
See id. at 715 (declining to decide whether grand juries in Alaska have a power of nullification); see also Wassillie v. State, 411 P.3d 595, 608 & n.87 (Alaska App. 2018) (declining to decide whether the grand jury has the discretion to decline to indict when the evidence supports the charges as framed by the prosecution).
Given Snyder's failure to adequately brief this issue on appeal, we reject Snyder's challenge to the indictment on this ground.
See Petersen v. Mut. Life Ins. Co. of New York, 803 P.2d 406, 410 (Alaska 1990) ("Where a point is not given more than a cursory statement in the argument portion of a brief, the point will not be considered on appeal."); Berezyuk v. State, 282 P.3d 386, 392 (Alaska App. 2012) (same).
Conclusion
The judgment of the superior court is AFFIRMED. Judge WOLLENBERG, concurring.
Isaac Raymond Snyder III was charged, inter alia, with one count of third-degree assault based on a recidivist theory — i.e., that he committed a fourth-degree assault, after having been convicted of two prior fourth-degree assaults within the preceding ten years. The only fourth-degree assault convictions that qualify as prior convictions for purposes of the third-degree assault recidivist statute are those that resulted in injury —i.e., fourth-degree assault convictions under AS 11.41.230(a)(1) and (a)(2), or a law or ordinance of another jurisdiction with similar elements. A fourth-degree assault conviction under AS 11.41.230(a)(3) — for "recklessly plac[ing] another person in fear of imminent physical injury" — is not a qualifying prior conviction.
AS 11.41.220(a)(5). --------
At the grand jury proceeding in Snyder's case, the prosecutor introduced two judgments showing that Snyder had been previously convicted of fourth-degree assault following his no contest pleas. However, the judgments alone presented the State with a problem of proof: the judgments did not contain the statutory subsection under which Snyder was convicted. In an attempt to remedy this problem, the prosecutor introduced the charging documents from those cases — documents that stated the statutory subsection under which Snyder had been charged.
But the charging documents showed only what Snyder had been charged with. They were not dispositive of the point the prosecutor sought to establish — that Snyder was ultimately convicted under these same subsections.
Snyder has not argued — either in the superior court or on appeal — that the indictment should be dismissed on this ground. Nor has Snyder suggested that his prior assault convictions were not qualifying convictions for purposes of the third-degree assault recidivist statute. We therefore have no occasion to address this issue further as it relates to the dismissal of Snyder's indictment.
But in the future, to alleviate this problem, I encourage trial judges to indicate on all judgment forms, including misdemeanor judgment forms, the statutory subsection under which a defendant has been convicted.