Opinion
No. 5982
11-20-2013
SALLY ANN JORGENS, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Sharon Barr, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, 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.
Court of Appeals No. A-10989
Trial Court No. 3PA-10-1777 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Palmer, Gregory Heath, Judge.
Appearances: Sharon Barr, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Smith, Superior Court Judge.
Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution and Administrative Rule 24(d).
Judge ALLARD.
In June 2010, Sally Ann Jorgens took her seven-year-old daughter to a remote cabin in Canada and kept her there in violation of a court order requiring her to share custody with her ex-husband in Alaska. A jury convicted Jorgens of custodial interference in the first degree. The superior court later sentenced Jorgens to 48 months with 30 months suspended, and a probationary term of 9 years.
AS 11.41.320.
Jorgens appeals her conviction and her sentence. She argues that the trial court erred by admitting an email from her attorney into evidence under the crime-fraud exception to the attorney-client privilege. Jorgens also argues that the trial court erred in refusing to instruct the jury on her proposed lesser-included offense of failure to permit visitation. Lastly, Jorgens challenges her sentence and the length of her probationary term as excessive.
For the reasons described below, we agree with Jorgens that the trial court erred in applying the crime-fraud exception to her attorney's email, but we conclude that the error was harmless. We disagree with Jorgens that the trial court should have instructed the jury on her proposed lesser-included offense because we conclude that failure to permit visitation did not qualify as a lesser-included offense of custodial interference in the first degree. Finally, we conclude that we lack jurisdiction to hear any portion of Jorgens's excessive sentence appeal. Accordingly, we affirm Jorgens's conviction but we refer the sentence portion of her appeal to the Alaska Supreme Court for discretionary review pursuant to Appellate Rule 215(k).
Factual background and prior proceedings
Sally and Brent Jorgens have a daughter together, S.J., who was born in 2004. The couple separated in 2006 and divorced in 2009. Since their separation, they have been involved in lengthy and contentious litigation over custody, visitation, and S.J.'s welfare.
In May 2010, Superior Court Judge John Suddock issued an oral ruling granting shared physical and legal custody. At the time, Sally was living in Palmer with S.J. Brent was living in Valdez, working one week on and one week off. Judge Suddock ruled that, starting on June 7, 2010, S.J. would spend the summer living with Brent in Valdez during his weeks off, and living with Sally in Palmer on the alternating weeks. A written version of this oral order was issued on June 4, 2010.
On June 1, Sally left a message with Brent informing him that she and S.J. were going camping and that she would drop S.J. off in Valdez on June 8. But Sally and S.J. never appeared in Valdez as scheduled. After Brent was unable to reach them by telephone, he contacted the police and his lawyer in the custody case.
When the Palmer police investigated, they discovered that Sally's rental house was still furnished and looked lived-in, but that it appeared nobody had been there in some time. The rent was paid only through June. In July, the landlords began eviction proceedings against Sally, informing Brent that they planned to auction off the items remaining in the house.
On June 11, 2010, Judge Suddock held a hearing in the custody case. At the hearing, Judge Suddock issued a temporary custody order granting sole legal and physical custody to Brent. The court also issued a show cause order, a writ of assistance, and a civil bench warrant for Sally's arrest, all designed to obtain Sally's appearance in court to explain her actions.
On June 14, Sally's lawyer sent her an email telling her about the outcome of the June 11 hearing. The email informed Sally that criminal charges had not been filed yet, but that if she was charged with a felony and found in Canada, she would be extradited. On July 2, the State charged Sally with custodial interference in the second degree and a criminal arrest warrant was issued.
AS 11.41.330.
On August 17, more than two months after Sally and S.J. disappeared, a constable with the Royal Canadian Mounted Police stopped Sally Jorgens's car in British Columbia for having a burnt-out headlight. S.J. was in the backseat. After taking Sally and S.J. home and discovering they lived in a remote cabin without electricity in the woods, the constable became concerned for S.J.'s welfare and decided to investigate further. The Alaska civil arrest warrant was discovered the next day. The British Columbia child welfare services took S.J. into custody and notified Brent Jorgens, who traveled to Canada to collect his daughter. Sally was arrested by the Canadian police and released. She crossed the border into the United States of her own volition and was again arrested.
After Sally's arrest, the Alaska State Troopers obtained search warrants to seize her electronic media devices, and discovered the June 14 email from her attorney, informing her of the temporary custody order giving sole custody to Brent. At trial, the State sought to admit the email over Jorgens's objection that it was protected by attorney-client privilege, arguing that the "crime-fraud exception" to the attorney-client privilege applied. Superior Court Judge Gregory Heath ruled that the exception applied and permitted the State to introduce the email at trial.
The court also ruled that, pursuant AS 11.41.330(b), Sally could not defend her actions based on her belief that they were necessary to protect S.J.'s welfare. Sally's defense at trial was therefore limited to arguing that the State had not proven beyond a reasonable doubt that she intended to keep S.J. from Brent for a "protracted period of time." In support of this defense, Sally requested that the court instruct the jury on failure to permit visitation as a lesser-included offense, arguing that the jury should be allowed to find her guilty of that offense if they accepted that she had acted in violation of the custody order but without the intent to keep S.J. from Brent for a "protracted period of time." The superior court refused, ruling that failure to permit visitation did not qualify as a lesser-included offense of custodial interference.
AS 11.41.330(b) provides:
The affirmative defense of necessity under AS 11.81.320 does not apply to a prosecution for custodial interference under (a) of this section if the protracted period for which the person held the child or incompetent person exceeded the shorter of the following:
(1) 24 hours; or
(2) the time necessary to report to a peace officer or social service agency that the child or incompetent person has been abused, neglected, or is in imminent physical danger.
The jury subsequently found Sally guilty on both counts of custodial interference in the first degree. At sentencing, the court imposed a sentence of 48 months with 30 months suspended, 18 months to serve, and a 9-year probationary term. The court explained that it was imposing the active jail time to deter Sally and others, and imposing the suspended time to hold Sally accountable in the future. The court also found that S.J. had been traumatized by the ordeal and explained that the lengthy probationary term was intended to ensure that Sally would remain under probationary supervision until S.J. was a teenager.
This appeal followed.
Did the superior court err in admitting the June 14 email under the crime-fraud exception to the attorney-client privilege?
As noted above, the State was permitted to introduce an email from Jorgens's civil custody lawyer under the crime-fraud exception. The jury received a print-out of the email, which read:
Sally,The prosecutor argued for admission of the email under the crime-fraud exception, asserting that the email was sent during an "ongoing crime" and that it "provided [Jorgens] with key information on how to make her escape to Canada (or return from Canada) and evade detection."
Judge Suddock was not happy with the situation on Friday but did what the law requires under the circumstances. I have attached the documents we received. He issued a temporary custody order giving Brent sole legal and physical custody of S.J. until you appear in court to deal with it. He also issued a Writ of Assistance (an order directing law officers to assist him in recovering [S.J.]) and an order directing you to appear to show cause why you shouldn't be held in contempt of court for not following the custody order. Finally, he issued a $100,000 civil warrant for your arrest to make sure you will appear to explain why you shouldn't be held in contempt.
All of that stuff is fairly normal in interstate or international child abductions. Although that civil bench warrant will not be in computers for the criminal system, [Brent Jorgens's custody attorney] said he would continue trying to get the district attorney to file a custodial interference in the first degree charge, which is a felony. If that happens, there will be a warrant for your arrest in U.S. criminal system computers and probably in the computer records of international criminal matters, which would be accessible to authorities in Canada. (In my experience, the RCMP will try to assist U.S. authorities when it can.) You can be extradited if you are arrested for that charge in Canada.
Jorgens argues that the superior court erred in admitting the email under the crime-fraud exception and that her lawyer's advice about the civil and criminal consequences of her actions should have been protected under the attorney-client privilege. We agree with Jorgens that the crime-fraud exception did not apply in this situation.
The attorney-client privilege is the oldest privilege at common law, designed "to encourage full and frank communication between attorneys and their clients." Alaska Evidence Rule 503 likewise grants a client the privilege to refuse to disclose (and to prevent any other person from disclosing) confidential communications made for the purpose of facilitating the rendition of professional legal services to the client.
Upjohn Co. v. United States, 449 U.S. 383,389 (1981).
The rule also includes several exceptions to the attorney-client privilege, including an exception for attorney-client communication that was made in furtherance of a crime or fraud:
(d) Exceptions. There is no privilege under this rule:The crime-fraud exception exists because "[t]he attorney-client privilege is not designed to encourage those planning to commit a wrong to obtain legal assistance in their endeavor." The exception pertains only to "ongoing or future, rather than prior, wrongdoing" and applies if advice is sought or rendered for a "knowingly unlawful end." Significantly, "[a]lthough the fraud or crime must have been contemplated by the client at the time of the communication, it is irrelevant whether the attorney was aware of the client's purpose."
(1) Furtherance of Crime or Fraud. If the services of the lawyer were sought, obtained or used to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud.
Munn v. Bristol Bay Hous. Auth., 777 P.2d 188, 195 (Alaska 1989).
United Servs. Auto. Ass'n v. Werley, 526 P.2d 28, 32 (Alaska 1974).
Matter of Mendel, 897 P.2d 68, 74 (Alaska 1995) (quoting Munn, 777 P.2d at 195); see also 1 Charles T. McCormick et al., McCormick on Evidence § 95, at 586 (Kenneth S. Brown ed., 7th ed. 2013) ("If the privilege is to be denied on the ground of unlawful purpose, the client's guilty intention is controlling, though the attorney may have acted innocently and in good faith.").
The State argues on appeal (as it did below) that the crime-fraud exception applies in this case because the communication occurred during an ongoing crime. But evidence that both the attorney and the client may be aware of an ongoing crime is not sufficient, standing alone, to defeat the attorney-client privilege. To establish that the crime-fraud exception applied, the State needed to present evidence that Jorgens used or intended to use the confidential communication to further her ongoing crime.
See Newman v. State, 863 A.2d 321, 336 (Md. 2004) (confidential communication must be used — or must be intended to be used — in furtherance of the crime or fraud; to hold otherwise "would result in the exception swallowing the privilege").
See id. (holding crime-fraud exception inapplicable where State failed to prove that client consulted with attorney "for the purpose of obtaining assistance in furtherance of a future crime or fraud").
The State claims that Jorgens could have used the attorney's advice to avoid extradition. But we agree with Jorgens that this is not a fair reading of the tone or nature of the attorney's advice. As Jorgens notes, the email primarily informed her of the civil and criminal consequences of her actions and "if anything, its intention was to explain to [her] the problems she could be facing in order to encourage her to return." There is no suggestion that Jorgens requested information about how she could avoid extradition or that she ever used (or intended to use) her attorney's advice to further her wrongdoing.
We therefore agree with Jorgens that the superior court erred in admitting the email under the crime-fraud exception. We conclude, however, that the error was harmless.
First, we note that parts of the email were admissible for other reasons. In order to be protected under the attorney-client privilege, the communication must qualify as "confidential communication." In Downie v. State, for example, this Court held that the attorney-client privilege did not protect an attorney's act of communicating a court date to the client. We noted that the authorities are in agreement that "[W]hen the attorney is merely acting as a conduit for information, i.e., as a messenger, the privilege is inapplicable."
888 P.21 1306 (Alaska App. 1995).
Id. at 1308; see also Moudy v. State, 964 P.2d 469, 472 (Alaska App. 1998).
Downie, 888 P.2d at 1308 (citations omitted). As Downie also makes clear, however, a lawyer's duty of confidentiality under Professional Rule 1.6(a) is broader than the attorney-client privilege and generally precludes an attorney from voluntarily disclosing any "secrets" that could be embarrassing or detrimental to his or her client, even if that information does not otherwise qualify as "confidential communications" under the attorney-client privilege. Id. at 1309.
Here, most of the email contained clearly privileged communication involving the attorney's thoughts, opinions, and advice about the June 11 hearing and possible future events. But a small portion of the email (and most of the attachments) were simply the attorney acting as a messenger and conveying what was otherwise public information to his client (i.e., the court's issuance of the new temporary custody order, the civil bench warrant, and the related orders). The fact that Jorgens received this information was relevant to the "knowing" element of custodial interference. Therefore, it is likely that the State would have been entitled to introduce this aspect of the email communication as proof that Jorgens continued to keep S.J. from Brent, "knowing that [she] had no legal right" to do so.
Id. at 1308; see also United States v. Bauer, 132 F.3d 504, 507 (9th Cir. 1997) (distinguishing between attorney as mere messenger and attorney as advisor for purposes of attorney-client privilege).
AS 11.41.320—330.
The rest of the email, however, was protected by the attorney-client privilege and its admission was therefore error. After careful review of the record, we conclude that the error was nevertheless harmless in large part because of its limited use at trial. During closing argument, the prosecutor referred to the email only in passing and primarily as additional evidence that Jorgens knew that she had no legal right to keep S.J. from Brent. In other words, although the prosecutor sought to introduce the email under the crime-fraud exception, the prosecutor's actual use of the email was mostly limited to the legitimate purposes for which parts of the email were admissible. We further note that even without relying on Jorgens's attorney's email, the State already had extremely strong evidence that Jorgens knew she had no legal right to keep S.J. from Brent, and that Jorgens did not dispute this element at trial.
We therefore conclude that although it was error for the superior court to admit the email under the crime-fraud exception to the attorney-client privilege, the error was harmless in the context of this particular case.
Did the trial court err in refusing to instruct the jury on Jorgens's proposed lesser-included offense of failure to permit visitation?
Alaska follows the cognate approach to lesser-included offenses. Under the cognate approach, a defendant is entitled to a lesser-included instruction if it would be impossible to commit the greater offense without committing the lesser and "if there is some evidence which could lead a reasonable jury to find that the element which distinguishes the greater offense from the lesser has not been proved." The court must consider whether an offense is a lesser-included offense "in light of the evidence actually presented" at trial.
Elisovsky v. State, 592 P.2d 1221, 1226 (Alaska 1974).
Wilson v. State, 670 P.2d 1149, 1151 (Alaska App. 1983).
State v. Minano, 710 P.2d 1013, 1016 (Alaska 1985).
Jorgens argues that the superior court should have instructed the jury on the misdemeanor offense of failure to permit visitation as a lesser-included offense to the charged offense of custodial interference in the first degree. She asserts that the two offenses are similar in that they both involve keeping a minor child from someone who has a right to see the child. She further asserts that the primary difference between the two offenses is the length of time the child is kept and that because her defense at trial was that the State had failed to prove that she intended to keep S.J. from Brent for a "protracted period of time" — one of the elements of custodial interference — the jury should have been instructed on failure to permit visitation as a lesser-included offense.
But there are critical differences between the two offenses that undermine Jorgens's argument that failure to permit visitation should be considered a lesser-included offense of custodial interference. Under Alaska law, a person commits the crime of custodial interference in the first degree if
being a relative of a child under 18 years of age ... and knowing that the person has no legal right to do so, the person takes, entices, or keeps that child ... from a lawful custodian with intent to hold the child ... for a protracted period[,]The crime is classified as a crime against a person and is included in the subsection criminalizing kidnapping and human trafficking.
. . . .
... and causes the child ... to be (1) removed from the state; or (2) kept outside the state.
AS 11.41.330(a).
AS 11.41.320(a).
See, e.g., AS 11.41.300 (kidnaping); AS 11.41.360 (human trafficking).
In contrast, failure to permit visitation with a minor is classified as an "offense against the family" and included in the same subsection as endangering the welfare of a child and criminal non-support. Under AS 11.51.125:
See, e.g., AS 11.51.100 (endangering the welfare of a child); AS 11.51.120 (criminal non-support).
A custodian commits the offense of failure to permit visitation with a minor if the custodian intentionally, and without just excuse, fails to permit visitation with a child under 18 years of age in the custodian's custody in substantial conformance with a court order that is specific as to when the custodian must permit another to have visitationIn other words, failure to permit visitation with a minor occurs when a legal custodian of a child violates the rights of a person who has been granted visitation rights, not necessarily custodial rights. It is the custodian's failure to substantially conform with the specified visitation rights that is the gravamen of the crime.
with that child.
AS 11.51.125(a).
Here, it was undisputed that Brent had been granted custodial rights to S.J. during the summer, not just visitation rights. Because there was no court order regarding visitation for Jorgens to violate (or substantially conform to, for that matter), the jury could find her not guilty of failure to permit visitation while still finding her guilty of custodial interference. Thus, because it was possible, both in the abstract and under the facts of this case, "to commit the greater offense without committing the lesser," an instruction on failure to permit visitation as a lesser-included offense was not warranted under Alaska law, and the trial court's failure to provide the jury with that instruction was not error.
Wilson v. State, 670 P.2d 1149, 1151 (Alaska App. 1983).
Do we have jurisdiction to hear any part of Jorgens's excessive sentence appeal?
Under AS 12.55.120(a) and AS 22.07.020(b), this Court has jurisdiction to review a felony sentence for excessiveness if the sentence exceeds two years of active jail time. Defendants who have been sentenced on a felony to less than two years of active jail time may still challenge their sentence as excessive, but they must do so through a discretionary petition for review filed with the Alaska Supreme Court.
See Alaska Appellate Rule 215(b).
Jorgens was sentenced to 48 months with 30 months suspended, 18 months to serve. In her reply brief, she concedes that because she received less than two years of active jail time, this Court does not have jurisdiction to review her 48-month sentence as excessive. But she argues that this Court does have authority to review her claim that her probationary term is excessive, asserting that the probationary term can be considered separately from the other parts of the sentence and is not subject to the jurisdictional restrictions under AS 12.55.120(a) and AS 22.07.020(b). We disagree.
Heavyrunner v. State, 172 P.3d 814, 821 (Alaska App. 2007).
In Richards v. State, we recognized that we could not review the defendant's misdemeanor sentence for excessiveness because it was part of a larger composite sentence that we did not have jurisdiction to review. The same principle applies here. As the sentencing judge's comments make clear, he viewed the lengthy probationary term as an integral part of the sentence as a whole — a relatively short time of active jail time coupled with a lengthy probationary period and significant suspended time. As in Richards, it would be inappropriate for us to review the probationary term in isolation when we do not have jurisdiction to review the rest of the sentence. We therefore refer Jorgens's excessive sentence claims to the Alaska Supreme Court under Appellate Rule 215(k) to be decided as a discretionary petition for review under Appellate Rules 215(a) and 403(h).
249 P.3d 303, 304 (Alaska App. 2011).
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Conclusion
Jorgens's convictions are AFFIRMED. We lack jurisdiction to review her sentence and therefore REFER those claims to the supreme court.