Opinion
Court of Appeals No. A-12283 No. 6603
03-14-2018
DORCAS WILLIE, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Michael Barber, Barber Legal Services, Anchorage, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. John H. Haley, Assistant Attorney General, Office of Special Prosecutions, 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. Trial Court No. 3AN-14-3416 CR
MEMORANDUM OPINION
Appeal from the District Court, Third Judicial District, Anchorage, Alex Swiderski, Judge. Appearances: Michael Barber, Barber Legal Services, Anchorage, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. John H. Haley, Assistant Attorney General, Office of Special Prosecutions, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge MANNHEIMER.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Dorcas Willie was convicted of transporting more than one liter of distilled alcoholic beverages by common carrier to a "damp" local option community without clearly labeling her luggage as containing alcoholic beverages, and without affixing an invoice showing the quantity and purchase price of the alcoholic beverages. See AS 04.16.125(a)(1) and (a)(2).
In this appeal, Willie argues that the trial judge committed error by not allowing her defense attorney to introduce a copy of the criminal judgement entered against her husband and co-defendant, Spike Milligrock. Willie also argues that one of her conditions of probation is not sufficiently related to her criminal conduct.
For the reasons explained in this opinion, we reject Willie's claim of trial error, but we agree with Willie that the challenged condition of probation is unsupported.
Underlying facts, and the litigation of whether Willie's trial attorney could introduce Milligrock's judgement of conviction
Willie and Milligrock were charged as co-defendants with violating the alcohol labeling statute, but Milligrock pleaded guilty rather than go to trial.
Milligrock was sentenced in October 2014, several months before Willie's trial in early April 2015.
In fact, Willie's attorney called Milligrock as a defense witness at an evidentiary hearing in February 2015. At this evidentiary hearing, Milligrock testified that he was "coerced and manipulated" into accepting a plea bargain, and he described the sentence he received after he pleaded guilty: 90 days with all 90 days suspended, and 2 years of probation.
The defense attorney then declared that she had no further questions for Milligrock. At no time did Willie's attorney ask Milligrock to talk about Willie's role in the unlabeled transportation of alcoholic beverages.
Two months later, at the beginning of Willie's trial, Willie's attorney asked the trial judge to take judicial notice of the judgement of conviction entered against Milligrock. The prosecutor objected on the ground that the judgement was not relevant to any issue at Willie's trial.
When the judge asked the defense attorney to make an offer of proof as to why Milligrock's judgement of conviction was relevant, the defense attorney answered that the judgement proved that Milligrock had taken responsibility for the act of unlabeled transportation of alcohol, and that Milligrock's admission of guilt supported the inference that he alone was responsible for transporting the alcohol without the proper labels, and that Willie played no role in this crime.
The trial judge was not sure whether this was a reasonable inference, but he decided to reserve his ruling on the question of whether the judgement was admissible. The judge told the defense attorney that she was free to argue that Milligrock was solely responsible for the unlabeled alcohol, but the judge told the defense attorney that he would not decide until later whether Milligrock's judgement would be admissible to support that argument.
Later, toward the end of that day's court proceedings, the defense attorney asked the trial judge to again take up the question of whether Milligrock's judgement of conviction would be admissible.
The defense attorney acknowledged that, under the judge's earlier ruling, the question of whether the judgement was admissible hinged on whether the defense attorney could establish the relevance of the judgement. The following colloquy then ensued. During this colloquy, the defense attorney failed to offer any theory as to why the judgement was relevant — and the defense attorney agreed that the judge could delay his final ruling until the judge had heard the defense offer of proof:
Defense Attorney: My understanding of the court's ruling [is] that, if we established its relevance, then we could offer [it into evidence].
The Court: Well, we're not going to be able to do that until we hear — [I asked] you to make an offer of proof, and you haven't done that, okay?
Defense Attorney: And we can —
The Court: So you're going to try to do that through evidence, I assume?
Defense Attorney: It — I'm envisioning that we could take up the matter before the jury got here [tomorrow morning]. But we can also do it [during] a break tomorrow. So we can be flexible —
The Court: I'm just not sure what you have to [add] to what we've already disc — what you have in addition to what we already discussed [earlier] today?
Defense Attorney: In terms of the schedule for tomorrow morning, I think jury instructions will suit bringing [the jurors] in at 9:00.
The Court: ... Let's try to stay on topic here. It sounds to me like you want to revisit [the admissibility of] the conviction, right?
Defense Attorney: We will want to revisit the conviction issue.
The Court: Okay. I asked you for an offer of proof, and I didn't really get one. ... Now, during the evidence, [if] something else transpires, [then] you can renew the request. Okay?
Defense Attorney: Yes, Your Honor. [The discussion then turned to other matters.]
This was the last discussion of whether the defense could introduce Milligrock's judgement of conviction. The defense attorney never raised this issue again.
Why we reject Willie's claim of error
There are two reasons why we reject Willie's claim of error.
First, Willie's trial attorney never asked the judge to issue a final ruling on her request to introduce Milligrock's judgement of conviction. As can be seen from the above-quoted colloquy, the defense attorney acknowledged that the judge's ruling on this issue was non-final — i.e., that the judge was reserving his ruling until the defense attorney made her offer of proof. The defense attorney never told the judge that she wanted the judge to consider her earlier arguments to be her final offer of proof, and that she wanted the judge to issue a ruling based solely on those earlier arguments. Instead, the defense attorney agreed with the trial judge that she would make a later offer of proof, and that the judge would then issue his final ruling on this matter.
But the defense attorney never again asked the trial judge to take up this matter. Without a final ruling from the trial judge, Willie's claim of error is not preserved for appeal.
Torres v. State, 519 P.2d 788, 794-95 (Alaska1974); Russell v. State, 934 P.2d 1335, 1340-41 (Alaska App. 1997).
Second, even treating the defense attorney's initial arguments as an offer of proof, those arguments fail to establish the relevance of Milligrock's criminal judgement. Willie and Milligrock were jointly charged with transporting alcoholic beverages in luggage that did not contain the proper identifying markings and invoice — and, under the facts alleged by the State, both defendants could be guilty of this offense.
The judgement was potentially admissible to prove that Milligrock had entered a plea of guilty to the charge. But contrary to the defense attorney's argument, the fact that Milligrock pleaded guilty did not, standing alone, tend to prove one way or the other whether Willie was also complicit in the unlabeled transportation. Thus, it would not have been an abuse of discretion for the trial judge to exclude this proposed evidence.
Moran v. State, 380 P.3d 92, 97 (Alaska App. 2016). --------
For these reasons, we reject Willie's claim of error.
Willie's challenge to her probation condition
At Willie's sentencing, the judge imposed a condition of probation that prohibits Willie from possessing or consuming any alcoholic beverage.
There was no allegation that Willie committed the present offense under the influence of alcohol, or that she committed the offense from a need to satisfy an alcohol addiction.
According to the sentencing transcript, Willie had five prior misdemeanor convictions — four convictions for disorderly conduct, and one for assaulting a police officer. Both the prosecutor and the sentencing judge conceded that they did not know whether any of these prior offenses involved alcohol.
However, the record showed that, in one of these earlier cases, Willie was ordered to undergo screening for alcohol abuse. Based on this, the sentencing judge surmised that one or more of Willie's earlier offenses must have involved the use or abuse of alcohol.
Then, without any evidentiary basis, the judge made the following assumptions: (1) that when Willie was evaluated for alcohol abuse in the earlier case, she was diagnosed as having problems with alcohol; (2) that Willie was ordered to engage in alcohol treatment; and (3) that Willie failed to comply with the requirements of that treatment. Based on these unsupported assumptions, the judge imposed a condition of probation that prohibited Willie from possessing or consuming any alcoholic beverages:
The Court: I'm not inclined to impose an [alcohol screening] requirement again. It sounds like she just [underwent alcohol screening]. [But] there are limited resources for that, and, you know, I frankly mostly don't suspect that she's particularly compliant with it. [So] I will order that she not consume or possess alcohol during [her] period of probation.
Under Roman v. State, 570 P.2d 1235, 1240 (Alaska 1977), a defendant's conditions of probation must be reasonably related to the defendant's rehabilitation or to the prevention of future criminal acts by the defendant. Here (as we noted earlier), there was no allegation that alcohol abuse played any part in Willie's present offense.
It was not illegal for Willie to bring alcoholic beverages into her damp community, nor was it illegal for her to ship these alcoholic beverages in her luggage. Willie's crime was not the transportation of these beverages, but rather her failure to properly label them.
Moreover, there is nothing in the record to support the sentencing judge's assumptions (1) that Willie had been ordered to engage in some form of treatment as a result of her earlier alcohol evaluation, and (2) that Willie had failed to comply with that treatment regimen.
Because the sentencing judge's decision in this matter was based on unsupported surmise, we reverse this condition of Willie's probation.
Conclusion
We REVERSE the condition of Willie's probation that prohibits her from consuming or possessing alcoholic beverages. With that exception, the district court's judgement is AFFIRMED.