Opinion
Court of Appeals No. A-13123 No. 6941
05-05-2021
JACOB JARRETT BROWN, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Michael L. Barber, Barber Legal Services, under contract with the Public Defender Agency, Samantha Cherot, Public Defender, Anchorage, for the Appellant. Mackenzie C. Olson, 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-16-08160 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Patrick J. McKay, Judge. Appearances: Michael L. Barber, Barber Legal Services, under contract with the Public Defender Agency, Samantha Cherot, Public Defender, Anchorage, for the Appellant. Mackenzie C. Olson, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee. Before: Allard, Chief Judge, and Harbison and Terrell, Judges. Judge TERRELL.
Jacob Jarrett Brown was convicted at a bench trial of four counts of distribution of child pornography and three counts of possession of child pornography. The child pornography was found on the laptop computer of Brown's roommate, David Turner, but the State's theory was that Brown had borrowed Turner's computer and was responsible for the child pornography.
AS 11.61.125(a) and AS 11.61.127, respectively.
In the middle of trial, the parties and the trial judge realized that Turner might have a Fifth Amendment privilege because police discovered pirated movies on the laptop and twenty-four to thirty marijuana plants in the residence. The trial judge appointed an attorney to assist Turner in resolving this potential claim of privilege and held an ex parte hearing the next day with Turner and his attorney. The judge ultimately concluded that Turner had a Fifth Amendment privilege, and the State granted Turner transactional immunity.
Brown objected to the ex parte hearing. He asserted that it was problematic for a trial judge to take confidential testimony from a potentially crucial witness when the trial judge was also the trier of fact, and he proposed that a different judge conduct the privilege hearing. The trial judge rejected Brown's request and conducted the hearing himself. After the hearing, the judge told the parties that "nothing unanticipated came up" and he did not learn anything "that [was] not otherwise known to the court." Brown now appeals the trial court's decision to hold the hearing ex parte.
We begin by noting that Brown's legal arguments are difficult to follow. Brown argues that the trial judge's decision to conduct the hearing himself resulted in an appearance of bias and actual bias; violated his rights to due process, to a fair trial, and to confront witnesses; and was otherwise an abuse of discretion. But Brown's discussion of each of these various doctrines and rights is cursory, and Brown fails to cite a single case from any jurisdiction that resulted in reversal under similar circumstances.
Brown does not argue that the ex parte hearing violated his due process right to be present at every stage of the proceeding, and we have previously rejected such a claim. Taylor v. State, 977 P.2d 123 (Alaska App. 1999).
With that being said, Brown's underlying concern about the procedure followed in this case is evident: he asserts that Turner might have testified to facts during the ex parte hearing that would influence the trial judge's ultimate verdict, and that he (Brown) never had an opportunity to rebut that testimony.
We have listened to the ex parte privilege hearing and it is clear that Brown's concern did not materialize. The hearing lasted less than twenty minutes, and Turner only spoke twice: the first time he was immediately told to stop talking by the trial judge; and the second time he stated that he would be available to testify later that day. The rest of the conversation took place between the judge and Turner's attorney, and it focused on information already before the court regarding the marijuana and pirated videos found in Turner's residence. These facts are sufficient to resolve Brown's concern — regardless of the doctrine or right under which it falls — that Turner might have testified to facts during the ex parte hearing that influenced the judge's ultimate verdict.
See Cook v. State, 36 P.3d 710, 728 (Alaska App. 2001) (resolving a similar claim on similar grounds); Taylor, 977 P.2d at 126 (holding that the court did not need to resolve the problem of whether an ex parte hearing prejudiced the judge because a recording of the hearing showed that no potentially prejudicial statements had been made).
Brown makes one additional argument: he asserts that the judge's decision to conduct the hearing himself resulted in an "appearance of bias" — i.e., he asserts that "reasonable people would question [a] judge's ability to be fair" whenever the judge in a bench trial conducts an ex parte hearing with an important witness, regardless of whether the judge was actually exposed to prejudicial information during the hearing. We disagree.
See Phillips v. State, 271 P.3d 457, 459 (Alaska App. 2012).
We review de novo whether a particular set of circumstances created an appearance of bias. Jerry B. v. Sally B., 377 P.3d 916, 924 (Alaska 2016).
As we stated in Taylor v. State:
When deciding whether to allow a person to present a claim of privilege ex parte, a judge must weigh these competing interests: (1) the privilege-claimer's interest in explaining the basis of the privilege without revealing protected information to others, (2) the defendant's and the victim's interests in being present during the various stages of the proceedings, and (3) the public's interest in assuring that the justice system operates in the public view and subject to public scrutiny.
Taylor, 977 P.2d at 129.
Mere exposure to prejudicial information during the course of a bench trial is insufficient to create an appearance of bias. As we have previously explained, "[j]udges routinely hear evidence that has a potential for unfair prejudice, and they are trained and expected to set this prejudicial aspect of the evidence aside when they render their decisions." Furthermore, an ex parte hearing is recorded and can be reviewed by the appellate court. Thus, even if a reasonable person might harbor an inchoate suspicion that something happened during the ex parte hearing that biased the trial judge, it would be unreasonable to maintain this suspicion in the face of assurances from an appellate court that this did not occur. For these reasons, we reject Brown's argument that there is an "appearance of bias" whenever a trial judge holds an ex parte privilege hearing with an important witness.
E.L. v. State, 2008 WL 2609696, at *4 (Alaska App., July 2, 2008) (unpublished).
We are careful to repeat, however, the caution we issued to trial judges over twenty years ago in Taylor: "[T]he fact that a person claims a testimonial privilege does not automatically authorize a judge to hold all related proceedings in private." Rather, judges must exercise their discretion in determining whether to allow the issue to be argued ex parte, and
Taylor, 977 P.2d at 129.
that discretion must be exercised with due regard for the defendant's right to be present during every stage of the trial, the victim's co-extensive right to be present (now guaranteed by Article I, Section 24 of the Alaska Constitution), and the public policy codified in Administrative Rule 21(a) that, "[s]o far as practicable, all judicial business involving the trial of causes . . . shall be . . . transacted in open court."
Id. (alteration and omissions in original). --------
We also note that the trial judge in this case indicated that if the issue had been raised earlier in the case, he may have asked another judge to conduct the hearing. The State has never disputed that this would have been a permissible procedure. We agree. When there is reason to believe that important information relating to the defendant's crime might be disclosed during the privilege hearing and when it is practicable to do so, the best practice is to ask a different judge to conduct the hearing and resolve the claim of privilege.
With these advisements in mind, we AFFIRM the judgment of the superior court.