Opinion
Court of Appeals No. A-13213 No. 6959
07-14-2021
MICHAEL ROY WESTLAKE, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Jane B. Martinez, Law Office of Jane B. Martinez, LLC, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, 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-15-06787 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Jack Smith, Judge. Appearances: Jane B. Martinez, Law Office of Jane B. Martinez, LLC, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee. Before: Wollenberg, Harbison, and Terrell, Judges. Judge TERRELL.
Michael Roy Westlake was convicted, following a jury trial, of one count of first-degree sexual assault, one count of second-degree assault, one count of fourth-degree assault, and one count of second-degree theft.
AS 11.41.410(a)(1), AS 11.41.210(a)(1), AS 11.41.230(a)(1), and AS 11.46.130(a)(3).
Westlake now appeals his first-degree sexual assault conviction. Westlake argues that the trial court erred in denying his motion to dismiss the indictment after the prosecutor failed to properly instruct the grand jury on the crime of first-degree sexual assault. Westlake further claims that the instructional errors at issue require automatic reversal — i.e., reversal without consideration of the likely effect of the error on the grand jury's decision to indict. The State concedes that the prosecutor failed to properly instruct the grand jury. But the State argues that harmless error analysis should be applied and that the errors were harmless.
For the reasons explained in this decision, we reject Westlake's argument that the failure to properly instruct the grand jury requires automatic reversal, and we therefore affirm Westlake's conviction for first-degree sexual assault.
Underlying facts and proceedings
The victim, P.F., testified to the following facts at trial. P.F. testified that on July 30, 2015, she went for a walk with Westlake. They sat, drank, and chatted by Campbell Creek for between half an hour and a little more than an hour before getting high. Westlake then tried to kiss P.F. When P.F. told him that she did not want to kiss, Westlake became upset. He pushed P.F. down and began to punch her, resulting in a "busted lip" and a black eye. Westlake put his hands around P.F.'s neck and choked her, restricting her from breathing, and told P.F. that he could kill her and throw her into the creek. P.F. almost passed out.
Westlake then pulled down P.F.'s pants and underwear and put his penis into her vagina. Westlake continued to hit P.F. throughout the ten-minute encounter. P.F. was afraid and yelled for help, and multiple passers-by heard her cries. Westlake stopped, got up, took P.F.'s purse, and ran away.
P.F. ran to the sidewalk in front of a nearby apartment complex. She encountered one of the passers-by, Stacey Lorenz, who had observed Westlake running away and throwing P.F.'s purse into a dumpster. Lorenz called the police.
Based on this conduct, Westlake was indicted on charges of first-degree sexual assault, second-degree assault (for strangling P.F.), and second-degree theft. At grand jury, the prosecutor read the charges set out in the proposed indictment, including that Westlake was alleged to have "engaged in sexual penetration, penis to vagina, with P.F., without the consent of P.F., and recklessly disregarded P.F.'s lack of consent." The prosecutor then read the statutory definition of first-degree sexual assault — i.e., that "[a]n offender commits the crime of sexual assault in the first degree if the offender engages in sexual penetration with another person without consent of that person."
The State later filed an information charging Westlake with the additional misdemeanor count of fourth-degree assault—recklessly causing physical injury in violation of AS 11.41.230(a)(1) — based on Westlake's act of punching P.F. in the mouth.
However, the prosecutor did not define the term "without consent," which is a legal term of art now codified in AS 11.41.470(8). The prosecutor did define the terms "intentionally," "knowingly," and "recklessly," and stated generally that those mental states applied to a result, conduct, or circumstance. But the prosecutor did not explain which elements of sexual assault constituted a result, conduct, or circumstance.
Alaska Statute 11.41.470(8) provides: "'[W]ithout consent' means that a person . . . with or without resisting, is coerced by the use of force against a person or property, or by the express or implied threat of death, imminent physical injury, or kidnapping to be inflicted on anyone[.]"
Before trial, Westlake moved to dismiss the first-degree sexual assault charge based on these instructional deficiencies. The State conceded that the prosecutor had not properly instructed the grand jury, but the State argued that the errors were harmless. The superior court agreed with the State that these instructional errors required dismissal of Westlake's indictment only if they were likely to have had an impact on the grand jury's decision to indict. Because the superior court found that the instructional errors did not have such an impact, the superior court denied Westlake's motion.
Westlake was subsequently convicted on all charged counts. This appeal followed.
Why we affirm Westlake's conviction
The parties agree that certain aspects of the prosecutor's instructions to the grand jury on the charge of first-degree sexual assault were erroneous. Namely, the parties agree that the jury should have been instructed on the definition of "without consent," and that the prosecutor should have explained that "knowingly" applies to the act of penetration and "recklessly" applies to the defendant's disregard of the victim's lack of consent.
The State contends that these errors were harmless, and Westlake does not actively dispute that contention. This means that the only issue presented in this appeal is whether the erroneous first-degree sexual assault instructions require automatic reversal — i.e., reversal regardless of whether the errors were harmless.
We have consistently reviewed instructional errors before the grand jury, including the omission of an essential element, for harmless error. Westlake acknowledges this precedent, but claims there is a "competing position" in the case law that this Court must resolve. He claims that there have been analogous situations in which such an omission has been considered a "fatal flaw," invalidating the indictment.
See, e.g., Hurd v. State, 22 P.3d 12, 20 (Alaska App. 2001) (failure to instruct the grand jury that kidnapping requires proof of a restraint over and above the restraint that would be merely incidental to the defendant's target crime); State v. Waskey, 834 P.2d 1251, 1253 (Alaska App. 1992) (failure to instruct the grand jury on the meaning of "dangerous instrument"); Wood v. State, 736 P.2d 363, 366-67 (Alaska App. 1987) (failure to explain to the grand jury the legal definition of lack of "consent" in the first-degree sexual assault statute); Sears v. State, 1999 WL 313194, at *2-3 (Alaska App. May 19, 1999) (unpublished) (erroneous instruction on the meaning of "operating" in the DUI statute); Simon v. State, 1997 WL 45122, at *2 (Alaska App. Feb. 5, 1997) (unpublished) (failure to explain to the grand jury that the State must prove that the defendant recklessly disregarded the victim's lack of consent in a prosecution for second-degree sexual assault).
The cases Westlake cites, however, do not support this contention. Instead, these cases concern different legal issues — for example, the omission of an essential element from petit jury instructions, or the omission of an essential element from the indictment (i.e., the charging document) itself. Although these cases are potentially analogous, they are not directly applicable here.
See Pitka v. State, 995 P.2d 677 (Alaska App. 2000). We note that Westlake suggests that Pitka requires automatic reversal — i.e., reversal regardless of prejudice — for the omission of an essential element of the offense at trial. The Alaska Supreme Court appears to agree with this characterization. See Jordan v. State, 420 P.3d 1143, 1154 (Alaska 2018). But Pitka did not explicitly hold that automatic reversal was required; it simply reversed without discussing prejudice. Furthermore, in support of the assertion that the failure to instruct the jury on an essential element is constitutional error, this Court cited United States v. Tagalicud, 84 F.3d 1180, 1184 (9th Cir. 1996). Tagalicud explicitly declined to decide whether the omission of an essential element required automatic reversal, or was instead subject to harmless error analysis, because the court concluded that the errors at issue were certainly not harmless. Because it is possible that Pitka reached the same conclusion, it would be incorrect to read Pitka as holding that automatic reversal is required. Of course, after Jordan, it is clear that the omission of an essential element in the petit jury instructions does require automatic reversal, as we discuss below.
See United States v. Du Bo, 186 F.3d 1177 (9th Cir. 1999).
Westlake does not provide any other reason to revisit our precedent on this point, nor does he point to cases from other jurisdictions requiring automatic reversal of grand jury instructional errors. Instead, his entire argument boils down to the assertion that we should require automatic reversal in his case because the errors were "of constitutional magnitude." But both the United States Supreme Court and the Alaska Supreme Court have consistently held that constitutional errors may be subject to harmless error review.
Chapman v. California, 386 U.S. 18, 22-24 (1967); see Jordan, 420 P.3d at 1148 & n.17 (discussing the Alaska Supreme Court's application of Chapman to various constitutional errors).
We acknowledge that a recent case from the Alaska Supreme Court raises questions about whether certain types of instructional errors should require automatic reversal. In Jordan v. State, the supreme court held that the omission of an essential and contested element of a crime in petit jury instructions is structural error — i.e., an error which requires automatic reversal, regardless of prejudice. An argument could be made that Jordan should be extended to require automatic reversal for the omission of an essential element in the instructions presented to the grand jury.
Jordan, 420 P.3d at 1155-57.
But Westlake does not make this argument; in fact, his brief does not mention Jordan at all. The State, independently recognizing the potential relevance of Jordan, argues that there are good reasons to distinguish Jordan's holding from the issue presented here. But Westlake did not file a reply brief and therefore did not respond to these arguments. Given Westlake's failure to discuss the applicability of Jordan, even after it was pointed out to him, we do not interpret Westlake as arguing that the reasoning of Jordan should be extended to the grand jury context. We therefore continue to adhere to our precedents reviewing instructional errors before the grand jury for harmless error. And because Westlake fails to present any argument that the instructional errors in this case were not harmless, we reject this claim.
See the cases cited at n.5.
We note one other issue in this case. As our above discussion has made clear, we interpret Westlake as arguing that there were errors in the grand jury instructions, and that these errors require automatic reversal. When this issue was litigated in the trial court, however, Westlake also discussed a different problem: a defect in the indictment itself. Specifically, Westlake pointed out that the indictment omitted the mens rea (knowingly) that applies to the charged conduct (engaging in sexual penetration).
But although Westlake discussed this error, he did not seek dismissal of his indictment based on it. Rather, because the language of the indictment was read to the grand jury, Westlake pointed to the failure to include the word "knowingly" in the indictment as support for his argument that the instructions to the grand jury were inadequate. On appeal, Westlake's discussion of the indictment deficiency is even less substantial: he simply quotes the language of the indictment in his statement of facts and does not otherwise assert that this language was deficient.
We acknowledge that Westlake occasionally asserts in his brief that the "indictment" was "fatally flawed" and "faulty." It is clear from context, however, that Westlake is using the term "indictment" to refer to the grand jury's return of a true bill (i.e., the grand jury's "verdict"), not the text of the accusatory instrument.
If this were all that had been said about the text of the indictment, we would not feel the need to discuss the issue in this opinion. But in its brief, the State implicitly concedes that the omission of the word "knowingly" from the indictment (as opposed to from the instructions) was error.
This concession potentially complicates our analysis. Although Alaska case law on this point is ambiguous, many jurisdictions do require automatic reversal for the omission of an essential element in the text of an accusatory instrument, although there has been a marked trend away from this approach in the last twenty years. At the same time, "under modern principles of criminal procedure an indictment should not be construed hypertechnically in an effort to find fatal flaws when, by a reasonable approach, it can be read as fulfilling the basic criteria of sufficiency." Thus, the supreme court has held that "[t]he indictment need not state every element of the charge necessary to be proved at trial" with the same level of detail and specificity as would be required before the petit jury, and the supreme court has also held that a "missing" element can be inferred from the surrounding language and allegations.
In Semancik v. State, this Court interpreted the Alaska Supreme Court's opinion in Adkins v. State as requiring automatic reversal when an indictment failed to allege an essential element of an offense. Semancik v. State, 57 P.3d 682, 683-84 (Alaska App. 2002) (citing Adkins v. State, 389 P.2d 915 (Alaska 1964)). In dissent, Judge Coats concluded that the majority opinion was potentially misreading Adkins. Semancik, 57 P.3d at 687-88 (Coats, J., dissenting). Judge Coats also urged the supreme court, in the event that the majority opinion was correctly interpreting Adkins, to reconsider the rule of automatic reversal. Id. at 688. After granting review, the Alaska Supreme Court did reconsider and overrule Adkins, but it did so on other grounds, and did not reach the question of whether automatic reversal was required. See State v. Semancik, 99 P.3d 538, 543 (Alaska 2004).
5 W. LaFave, J. Israel, N. King, & O. Kerr, Criminal Procedure, § 19.2(e), at 274-75 (4th ed. 2015) (explaining that although the failure to allege each and every essential element is no longer treated as a jurisdictional defect, it is still treated in most jurisdictions as a prerequisite for a judgment of conviction that can be raised for the first time on appeal).
See id. (discussing the trend in lower federal courts away from the long-standing rules of automatic reversal).
Christian v. State, 513 P.2d 664, 667 (Alaska 1973).
Lupro v. State, 603 P.2d 468, 473 (Alaska 1979).
See Thomas v. State, 522 P.2d 528, 531 (Alaska 1974) (holding that an indictment sufficiently alleged that the defendant acted "knowingly" when it alleged that he acted "unlawfully and feloniously").
Here, the indictment alleged that Westlake "engaged in sexual penetration" and "recklessly disregarded [the victim's] lack of consent." Given the principles enunciated above, it appears that the failure to include the word "knowingly" in Westlake's indictment was not a fatal defect and that this mens rea can be inferred from the language used in the indictment.
See id.; see also United States v. Williams, 202 F.2d 712, 713 (5th Cir. 1953) (indictment alleging that defendants "received, concealed, and transported" 140 pounds of marijuana adequately implied that their conduct was "knowing"); United States v. Jackson, 749 F.Supp.2d 19, 26-27 (N.D.N.Y. 2010) (citing Second Circuit precedent for the proposition that indictment's use of the word "robbery . . . necessarily implies knowing and willful conduct").
We need not resolve those questions here, however, because, despite the State's concession, we conclude that Westlake has never raised the alleged indictment deficiency as a separate claim of error. This conclusion is supported by the record in the superior court. The court's order rejecting Westlake's motion to dismiss the indictment only addressed whether the instructions provided to the grand jury were adequate. It did not address, as a separate claim of error, whether the indictment itself was defective. Westlake never filed a motion to reconsider, and he has not argued on appeal that the superior court misunderstood his arguments.
Because we do not understand Westlake to be raising an independent challenge to the adequacy of the indictment itself, we need not decide whether the failure to specifically allege that Westlake acted knowingly rendered the indictment defective; nor do we need to decide whether, assuming the indictment was defective, such an error would require automatic reversal of Westlake's conviction.
Conclusion
The judgment of the superior court is AFFIRMED.