Opinion
A-13382 7132
11-06-2024
JULIO ADRIAN LOPEZLEON, Appellant, v. STATE OF ALASKA, Appellee.
Cynthia Strout, Law Office of Cynthia L. Strout, Anchorage, for the Appellant. Michal Stryszak, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Third Judicial District, Anchorage, Trial Court No. 3AN-13-03462 CR Kevin M. Saxby, Judge.
Cynthia Strout, Law Office of Cynthia L. Strout, Anchorage, for the Appellant.
Michal Stryszak, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
MEMORANDUM OPINION
ALLARD, JUDGE
Julio Adrian Lopezleon was convicted, following a jury trial, of two counts of first-degree sexual assault, one count of second-degree assault, and four counts of fourth-degree assault after he physically and sexually assaulted his wife, C.U., over the course of four days. He was also convicted of two counts of witness tampering for attempting to prevent C.U. from testifying.
AS 11.41.410(a)(1), AS 11.41.210(a)(1), and AS 11.41.230(a)(1), respectively.
AS 11.56.540(a)(1).
Lopezleon raises two issues on appeal. First, he argues that the superior court erred when it granted the State's motion to continue trial when the State was unable to find C.U. and another witness. According to Lopezleon, the continuance deprived him of his counsel of choice because his private attorney withdrew from the case soon after the superior court granted the continuance. Second, he argues that the superior court violated his right to be present when it held a number of pretrial hearings involving C.U. (and one hearing involving the other witness) outside his presence.
For the reasons explained in this decision, we reject Lopezleon's arguments and affirm his convictions.
Background facts
Lopezleon and C.U. married in 2006. C.U. testified at trial that a few months into their marriage, Lopezleon became physically abusive and he continued to beat her throughout their marriage. C.U. never called the police, however, because she was afraid of Lopezleon.
The events that led to the present case took place in March 2013. Lopezleon became angry with C.U. after he discovered an ex-boyfriend liked some of her Instagram photos. Lopezleon punched C.U. in the nose causing her to bleed. C.U. fled to the room of Ignacio Lopez, Lopezleon's nephew who lived in the apartment with C.U. and Lopezleon. But Lopezleon dragged C.U. by her hair back to their bedroom, where he continued to beat her. C.U. also testified that, later that evening, Lopezleon drove C.U. to Wasilla, made her kneel, threatened to kill her, retrieved a gun, and then hit her in the face.
The following evening, Lopezleon punched C.U. in the face, forced her to perform fellatio, and threatened to continue beating her if she did not. C.U.'s mouth had been injured by the beatings, and she testified that when Lopezleon inserted his penis into her mouth, the pain was overwhelming. Lopezleon then forced C.U. to have vaginal sex and ejaculated on her face.
The next morning, Lopezleon again questioned her about why her exboyfriend had liked her pictures, and again hit her. Lopezleon went to work, but had C.U. set up a camera in the kitchen so he could observe her while he was away. While Lopezleon was gone, Luis Baez, C.U.'s brother, came to check on her. C.U. tried to hide her face from Baez so he would not see the bruising. Lopezleon learned of the visit, came home from work, and began beating C.U. again.
C.U. testified that Lopezleon then took her to buy drugs. While they were driving, Lopezleon told C.U. to throw herself out of the truck, saying it would make it look like her injuries had been an accident. But when C.U. opened the door, Lopezleon said he was just kidding.
On the fourth day, Lopezleon left the residence. Baez came to the apartment again and saw C.U.'s injuries. He asked to photograph the injuries, but C.U. declined because she did not want to make Lopezleon angry.
Lopezleon's aggression continued when he returned home. Lopezleon began to beat C.U. again. At one point, Lopezleon gave an unloaded gun to their youngest child, instructed the boy to aim it at C.U., and told him to call C.U. a "whore." Lopezleon also threw a plate of food, shattering it, and then told C.U. to lick it up.
Lopezleon then began beating C.U. again. Lopezleon's mother was at the house at this point and told him to stop. But Lopezleon told his mother to leave the apartment and she complied with the request. Ignacio Lopez also tried to intervene at one point, but Lopezleon refused to stop, and hit C.U. all over her body with his hands and with a belt. C.U. testified that while Lopezleon was beating her she fell and hit her head on a speaker. C.U. briefly lost consciousness and thought she was going to die. Thereafter, Lopezleon told C.U. to go to the bedroom, where he continued to beat and strangle her.
Lopezleon's family members eventually intervened, and C.U. was able to leave. C.U. contacted Baez, who in turn called the police. Police arrived at the residence a short time later and observed substantial corroborating evidence, including a web cam, a belt, pieces of a broken plate, and blood splatter on the carpet and hamper in the bedroom.
Lopezleon was ultimately convicted of two counts of first-degree sexual assault, one count of second-degree assault, and four counts of fourth-degree assault for this conduct, as well as two counts of witness tampering. This appeal followed.
Additional procedural facts relevant to the issues raised on appeal
Lopezleon's trial was delayed a number of times, in large part due to the unavailability of two witnesses: C.U. and Ignacio Lopez. Because both issues Lopezleon raises on appeal are related to issues with procuring the testimony of these witnesses, we must explain in detail the procedural history of this case as it pertains to these witnesses.
Lopezleon's trial was originally scheduled to begin in August 2013. But the day before trial was set to begin, Lopezleon requested a continuance so that he could hire a different attorney. The court granted this request, and the trial was continued to a later date.
After the unsuccessful attempt to bring Lopezleon to trial in 2013, jury selection began anew on March 24, 2014. Lopezleon was now represented by attorney Michael Moberly. The next day, March 25, the State sought a continuance because it had been unable to find two material witnesses: C.U. and Ignacio Lopez. Moberly strenuously objected to the request for a continuance and insisted on proceeding to trial immediately.
The court held an evidentiary hearing and took testimony from various police officers and employees of the prosecutor's office to evaluate the State's efforts to procure the attendance of C.U. and Lopez for trial. The witnesses testified to numerous such efforts, including multiple phone calls and voicemails from the prosecutor's office in the approximately ten days preceding trial, as well as visits to addresses associated with the witnesses by police officers.
Following this testimony, the court found that the witnesses were under subpoena but appeared to be actively avoiding the State's attempts to contact them. The court made the following findings: (1) the State called the witnesses at least ten times, but could not reach them; (2) when family members were contacted, they denied knowing C.U.'s whereabouts; (3) there had been stakeouts monitoring potential addresses of the witnesses; and (4) at least one such address was searched. Given these facts, the court concluded the State met its burden of showing it exercised "due diligence" in attempting to procure the witnesses for trial. The State subsequently located both witnesses over the course of the next week.
Ignacio Lopez voluntarily turned himself in to authorities once he discovered there was a warrant out for his arrest. On April 1, 2014, the court held a material witness hearing for Ignacio Lopez. The prosecutor and Moberly attended, but Lopezleon was not present. The hearing lasted only seven minutes. At the beginning of the hearing, the court noted Lopezleon's absence, and Moberly responded, "I didn't think that this hearing really involved us." Moberly also explained he had only been notified of the hearing at 10:00 p.m. the night before. The court expressed concern that Lopezleon was not in attendance, noting its understanding that defendants generally have a right to be present at material witness hearings, and that their absence may require reversal in certain situations.
Little of substance occurred at the hearing. After noting Lopezleon's absence, the court quashed the arrest warrant against Ignacio but explained that he was still under subpoena and had a continuing obligation to be available to testify. The court was careful to explain that it was not "suggesting you have to testify one way or the other," just that Ignacio had "to be available."
C.U. was arrested on April 1, 2014, and a material witness hearing was held on April 3. Both Lopezleon and his attorney were present. At the hearing, Detective Mikell Von Dolteren testified about the efforts police had made to find C.U. since the arrest warrant was issued. Detective Von Dolteren testified that he reached out to the United States Marshals Service for assistance with the investigation. According to Von Dolteren, the Marshals Service initially contacted the school C.U.'s children attended. The school in turn contacted the family member listed as the emergency contact for C.U.'s children. That individual informed the school, who in turn informed the Marshals Service, that C.U. and her family had left Alaska. However, this information proved to be incorrect. The Marshals Service ultimately located C.U. at an address in Anchorage. When marshals entered the apartment, they found C.U. hiding underneath some bedding and clothing and took her into custody.
At the time of the April 3 hearing, C.U. was still in custody. Both Moberly and the prosecutor agreed that C.U. should be appointed an attorney to represent her if any Fifth Amendment questions arose. The court and the parties then discussed the conditions that should accompany C.U. upon her release. The court found that C.U. had been "actively avoiding . . . and hiding from the representatives of the State," and imposed electronic monitoring to ensure she would be available to testify at a future trial. The court explained to C.U. that it was "not attempting to get [her] to testify one way or the other," and was "simply taking these steps to make sure that [she] will be available to testify."
The court then briefly took up a second issue. Before the hearing, Moberly had filed a motion to withdraw as counsel. At the time of the hearing, however, Moberly had yet to file his affidavit and a proposed order. The court directed Moberly to file the affidavit and any additional materials by the next day, and scheduled a hearing on the motion to withdraw for the following Tuesday.
The hearing on Moberly's motion to withdraw was held as scheduled on Tuesday, April 8, 2014. In his affidavit and at the hearing, Moberly explained that Lopezleon had run out of money to pay for his representation. Moberly explained that he had previously stayed in the case when it was scheduled for trial "out of an interest of protecting Mr. Lopezleon's rights," but that circumstances changed after the court granted the State's continuance to find C.U. and Ignacio Lopez. Moberly stated that the trial date on June 2 remained "viable," despite being less than two months away, because he was prepared to go to trial and whoever was appointed to represent Lopezleon would receive his file.
The prosecutor expressed "baffle[ment]" at the situation, noting that Moberly had been prepared to go to trial only two weeks earlier. The prosecutor thought it was "not realistic at all" to think a new attorney would be prepared to go to trial by June 2, noting that it had taken Moberly eight or nine months after his appointment to declare he was ready for trial. The prosecutor argued Moberly had simply made a bad business decision when he contracted with Lopezleon, and that Moberly should not be permitted to withdraw on the "eve of trial." The superior court rejected the prosecutor's arguments and permitted Moberly to withdraw.
After Moberly withdrew, it quickly became apparent the prosecutor had been correct that a trial would not be held by June 2. The attorney assigned to represent C.U. filed a motion asking the court to remove C.U. from electronic monitoring, arguing that it was unclear when a trial would actually take place and that it was unfair to keep C.U. on electronic monitoring indefinitely.
A hearing on this motion was held on May 15, 2014, and C.U., C.U.'s attorney, the prosecutor, and Lopezleon's newly appointed attorney, Joseph Van de Mark, were present. Lopezleon was not present. At the conclusion of the hearing, the court agreed to remove C.U. from electronic monitoring under the condition that she attend a status hearing twice a month. The court asked Van de Mark if there was any date he preferred for the status hearings, and Van de Mark replied, "I don't really think I need to come to these." The court responded, "Okay."
This hearing was not transcribed by the parties, but the audio of the hearing is available to this Court. We include a description of this hearing because Lopezleon erroneously claims on appeal that the superior court "never notified [Lopezleon] or his lawyer that these hearings were being conducted." (Emphasis added).
Lopezleon's trial was rescheduled on multiple occasions over the course of the next year, for reasons unrelated to the issues in this appeal. During this time, it appears the superior court held routine status hearings to check in on C.U., but those hearings have not all been transcribed and are not at issue on appeal.
The next hearing Lopezleon objects to on appeal is a status hearing involving C.U. that was held on January 9, 2015. The prosecutor, C.U., and C.U.'s attorney attended the hearing. Neither Lopezleon nor his attorney were present. The hearing lasted approximately five minutes. The parties briefly discussed C.U.'s desire to move to California, and the court recommended that C.U. discuss the issue further with her attorney. The parties also mentioned that Lopezleon was now represented by Natasha Norris, and the court scheduled a new status hearing for February 24, 2015.
The February hearing was held as scheduled. The prosecutor, C.U., and C.U.'s attorney were present. This hearing lasted approximately four minutes. At the start of the hearing, the court noted it had contacted Lopezleon's new attorney (Norris) and she had waived Lopezleon's presence. The court emphasized that its primary concern, and its reason for holding the hearings, was to make sure C.U. was available to testify at trial. C.U.'s desire to move to California was mentioned, and another status hearing was set for April 28, 2015.
C.U. had a newly-appointed public defender at this hearing. C.U.'s former attorney, also a public defender, left the agency.
The prosecutor and C.U.'s attorney were present at the April 28 status hearing, but C.U., Lopezleon, and Lopezleon's attorney were all absent. The court began by asking whether Lopezleon had waived his presence, and the attorneys and the court all agreed that Lopezleon had generally not been present for the previous status hearings regarding C.U. The court and the attorneys briefly clarified the current status of the planned trial, and the prosecutor stated that he had recently spoken to defense counsel and both were anticipating a June 1, 2015 trial date.
The court then pivoted to discuss C.U.'s status. C.U.'s attorney informed the court that he had last spoken to C.U. a couple weeks before, that he had informed her of the date of the hearing, and that he thought her absence was likely "just a forgetfulness or a flat tire type situation." The court instructed the prosecutor and C.U.'s attorney to inform C.U. of the upcoming trial date, and noted that it "really [didn't] want to have to arrest [C.U.] again." The hearing was again brief, lasting only nine minutes.
Another status hearing was held a week later, on May 5. C.U., Lopezleon, and Lopezleon's attorney were all absent. The court asked C.U.'s attorney if he had heard from C.U. in the preceding week. The attorney replied he had not heard from her and had no information to provide to the court. C.U.'s attorney also indicated he called C.U.'s phone during the hearing, but it went straight to voicemail. The court issued a warrant for C.U.'s arrest and instructed the parties that it wanted her brought before a judge "as quickly as possible when she's taken into custody."
However, C.U. was not taken into custody for over a year. While C.U. was missing, and it was assumed she would not be available to testify at trial, Lopezleon filed a motion asking the court to suppress all testimonial statements made by C.U. Lopezleon argued that C.U. was unavailable to testify at trial and had never been crossexamined about her statements, and so the admission of her statements would therefore violate his right to confrontation.
The State opposed Lopezleon's request, arguing that Lopezleon had "engaged in a pattern of intimidating and coercing witnesses in this case, and a pattern of delaying trial for the specific purpose of preventing C.U. from testifying at his trial." In addition to the procedural history already discussed, the State also relied on a series of phone calls Lopezleon made from jail (including one to C.U. just before she disappeared, during which Lopezleon expressed surprise as to the fact she was still "there"), as well as the testimony of C.U.'s brother, who testified that C.U. had taken her children and was now residing in Mexico with relatives. Based on this evidence, the State argued that Lopezleon waived his confrontation rights by obtaining or encouraging C.U.'s absence.
In addition to the various hearings discussed in this section, Lopezleon also notes (and appears to object to) one additional ex parte hearing that occurred on August 19, 2015. Lopezleon, however, makes a series of incorrect factual assertions about this hearing: he represents that the hearing took place in August 2014, rather than 2015; he asserts, without any support in the record, that it was "styled as [a] status hearing[]"; and he claims that the log notes of the hearing are under seal. In fact, the hearing took place in August 2015 (when C.U. was living in Mexico); it concerned an ex parte motion filed by the State, not a "status hearing"; and although it appears from the record that the log notes were originally under seal, they have since been unsealed and can be found in the confidential portion of the record. Although the hearing itself was not transcribed in preparation for this appeal (presumably because defense counsel believed it remained under seal), the log notes reveal that the hearing concerned the jail phone calls described above. Specifically, the State was seeking permission under Criminal Rule 16(d)(4) to delay disclosure of those phone calls to the defense because they were part of the State's investigation into C.U.'s whereabouts. Those phone calls were ultimately disclosed to the defense as part of the suppression motion described above, and we see no error in how the superior court handled this issue, nor any prejudice to Lopezleon.
The court agreed with the State, finding by a preponderance of the evidence "that Mr. Lopezleon procured or encouraged the procuring of C.U.'s current unavailability for trial to prevent her from testifying."
In reaching this conclusion, the court relied on a common law doctrine regarding the forfeiture of the right to confrontation, adopted by the U.S. Supreme Court in Crawford v. Washington, 541 U.S. 36, 62 (2004), that has not yet explicitly been adopted by any appellate court in Alaska. We do not decide in this appeal whether to formally adopt that common law doctrine in Alaska or whether it was correctly applied in this case. We note that the court's ruling on Lopezleon's motion became moot because C.U. ultimately testified at trial.
Motion practice in the case continued under the assumption C.U. would be unavailable for trial. This assumption changed in August 2016, when C.U. was arrested in Arizona trying to reenter the country from Mexico. On August 31, the State filed an ex parte motion seeking an immediate hearing to address bail conditions for C.U. In support of the motion, the State explained it had received multiple phone calls from C.U.'s mother, who told the State C.U. had recanted during her grand jury testimony because she was afraid of Lopezleon and his family, and that she had "been continuing to receive threats against both herself, her children, and her family." In light of these facts, the State requested C.U.'s location not be disclosed to Lopezleon prior to trial. The State also requested that the court schedule a bail hearing for the next day, and "do so in the most confidential manner possible."
The court only partially granted the State's request: it scheduled a hearing for the next day, September 1, 2016, but it informed Lopezleon's attorney (still Norris) about the hearing. The prosecutor, Norris, and C.U.'s attorney all attended the hearing. The prosecutor objected to Norris's presence at the hearing, noting that nothing in Alaska Criminal Rule 16(d) required the court to have defense counsel's permission before holding an ex parte hearing. The court responded that its purpose in including defense counsel was to obtain "a statement of her position as to whether the ex parte hearing should proceed." The court explained it was dealing with an "unprecedented situation," that it "need[ed] to tread carefully," and that it had determined informing defense counsel and obtaining a statement was the option "least likely to lead to reversible error."
Norris did not dispute that the court was permitted to hold an ex parte hearing, and stated, "the only thing that I would ever ask is that this Court follow the law in terms of [the State] having to . . . show why it is that I don't get to hear the information." Norris added that, "as long as there is a record of the appropriate showing and this Court finds that my client shouldn't know things, then I [don't] really see a reason for me to be here." Upon further discussion, the parties agreed that the required showing under Criminal Rule 16(d) was "good cause."
Norris left the courtroom shortly thereafter, and the court scheduled another ex parte hearing for the next morning to determine the conditions of C.U.'s bail release and to resolve the State's request to control discovery and proceed ex parte.
At that hearing, C.U. testified that Lopezleon asked her to go to Mexico and told her it "was the best thing that [she] could do so that he would not get charged with more counts." The prosecutor asked C.U. if she would be in fear if Lopezleon knew her address. C.U. responded, "Maybe he would try to do something or maybe he can send someone to tell me something." C.U. further testified that members of Lopezleon's family had been calling her and "didn't want [her] to testify."
A few moments later, the prosecutor again asked C.U. if she would be concerned if Lopezleon had her address, and she replied, "Yes, like I wouldn't feel comfortable if he knew where I was at." The prosecutor then asked, "Would you have safety concerns?" C.U. responded, "Right now, no." (Lopezleon was in custody at the time.)
The superior court then asked a few follow-up questions to clarify C.U.'s answers. Specifically, the court asked, "What do you think might happen to you [if your husband knew where you were staying]?" C.U. replied, "Well, that the same thing that happened last time would happen again, or that he beats me or something like that."
Following C.U.'s testimony, the court made oral findings on the record in which it concluded that C.U. had a "legitimate" fear of "physical violence" and granted the State's request to prohibit disclosure of C.U.'s location information to the defense:
I find . . . as follows. That the defendant in the case told [C.U.] to go to Mexico previously so that . . . he would not
be charged.... That she has a fear that he or members of his family might try to do something or send someone to do something if her current location is known in a further effort to influence her testimony.
I find that Mr. Lopezleon previously ignored no contact orders and came to her house from time to time in an attempt to influence her testimony. I find that members of Mr. Lopezleon's family have been part of the effort to encourage her to not testify or to influence her testimony. And I find that her fears of physical violence are legitimate given the events that led to the charges in this case in the first place and her testimony here that she had previously been beaten.
So that while perhaps the threat of physical harm is not as clear as it may have appeared to be earlier, there is nevertheless a palpable threat of physical harm. There's certainly an intent to influence her testimony or prevent her from testifying and pressures have been applied to that effect by not just Mr. Lopezleon but members of his family.
And so I'm going to grant the State's motion to limit discovery and for the time being the State - until further court order, the State need not disclose location information for [C.U.].
The court also imposed bail conditions, including electronic monitoring. The court directed C.U. to have no contact with any of the people who had been trying to prevent her from testifying, namely Lopezleon and his family.
Two more relevant hearings involving C.U. were held before trial. The first took place on September 9, 2016 and concerned the fact that the Department of Corrections had not approved C.U. for electronic monitoring and she was still in state custody. The prosecutor, C.U., and her attorney were in attendance. Neither Lopezleon nor his attorney were present. The court explained at the beginning of the hearing that Lopezleon and his attorney were excluded because it had already ruled that C.U.'s location should not be disclosed to the defense. After some discussion, the parties agreed the issue could not be resolved without further investigation into various alternative options, and the court scheduled a follow-up hearing for September 13.
The same parties were in attendance at the September 13 hearing, and the court again noted that Lopezleon and his attorney were not present because of the court's previous ruling that C.U.'s location should not be disclosed to the defense. At the hearing, the prosecutor explained that he had arranged for C.U. to be released on ankle monitoring and the parties discussed a few more details about her release and bail. The parties also briefly discussed whether Lopezleon's attorney would be permitted to contact C.U., but the parties and the court agreed that issue should be taken up at a subsequent hearing.
In his reply brief, Lopezleon mentions one other "ex parte" hearing, occurring on October 12, 2016, to which he presumably is objecting to on appeal. But Lopezleon never mentioned this hearing in his opening brief, and only lists the date and accompanying record citation in his reply brief. He provides no description of the hearing nor any argument for why it was improper. Furthermore, this hearing was not actually ex parte: Lopezleon and his attorney were both present at the beginning of the hearing, and although Lopezleon left in the middle of the hearing, his attorney remained until the end.
In light of Lopezleon's efforts to prevent C.U. from testifying at trial, the State indicted him on two counts of first-degree witness tampering. He was convicted of both counts.
Why we reject Lopezleon's arguments on appeal
As previously noted, Lopezleon raises two issues on appeal, both related to C.U.'s availability for trial. First, Lopezleon argues that the superior court erred when it granted the State's request for a continuance due to C.U. and Ignacio Lopez's unavailability for trial. Second, Lopezleon argues that the superior court erred in holding a number of hearings outside his presence. We find no merit to either argument and affirm Lopezleon's convictions.
We note that it is sometimes difficult to discern from Lopezleon's appellate briefing precisely what hearings he challenges on appeal. Early in his opening brief, for example, Lopezleon asserts that the court "held ten ex parte hearings regarding the witness C.U." On the very next page, Lopezleon asserts the court "held at least nine ex parte hearings with the witnesses." A few pages later, Lopezleon asserts that "[d]uring the course of the renewed pre-trial proceedings, [the court] held at least ten ex parte hearings regarding [C.U.'s] participation in the trial," and then includes a numbered list purporting to describe the ten hearings. But numbers five, six, and seven on the list describe different portions of the same hearing (September 1, 2016), which means the list contains only eight hearings. Finally, in his reply brief, Lopezleon provides a second numbered list of eleven "ex parte" hearings, which presumably includes all the hearings he challenges on appeal.
A trial court may grant a continuance at the State's request without violating a defendant's right to a speedy trial under Alaska Criminal Rule 45 if "[t]he continuance is granted because of the unavailability of evidence material to the state's case, when the prosecuting attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that such evidence will be available at the later date." "Due diligence" requires the state to "take reasonable steps to ascertain the whereabouts of the [evidence] but need not follow up on every conceivable lead." The emphasis of this analysis is on "the reasonableness of the efforts actually made, not on the alternatives that might have been available." Generally, a court will only find an absence of due diligence "where mere pro forma efforts have been made."
Ingram v. State, 703 P.2d 415, 431 (Alaska App. 1985) (citing Spencer v. State, 611 P.2d 1, 7 (Alaska 1980)).
Id.
James v. State, 2015 WL 9257032, at *7 (Alaska App. Dec. 16, 2015) (unpublished) (citing Ingram, 703 P.2d at 431).
As we detailed above, the State presented testimony from multiple law enforcement officers and employees of the prosecutor's office explaining its efforts to find Ignacio Lopez and C.U. These efforts included calling the witnesses at least ten times, contacting family members, staking out potential addresses where the witnesses may be located, and even searching one location. Although the court noted that the State "arguably[] could have done even more under the circumstances," it concluded the State's efforts were sufficient to establish due diligence.
It is clear from this record that the State engaged in more than pro forma efforts to obtain C.U.'s and Ignacio Lopez's presence in the two weeks preceding the scheduled trial. Although the State could have started its search earlier, or kept in better contact with the witnesses, we conclude that the State's cumulative efforts in this case constituted more than pro forma efforts to procure the witnesses' presence at trial.
Next, Lopezleon asserts that the superior court erred when it held a number of hearings outside his presence. "A defendant has the constitutional right, under both the United States and the Alaska Constitutions, to be physically present at every critical stage of a criminal proceeding[.]" Alaska has implemented this right through Alaska Criminal Rule 38(a), which "is broader than the right arising from the federal constitutional guarantees of confrontation and due process." Criminal Rule 38(a) provides:
Dixon v. State, 553 P.3d 1273, 1277 (Alaska App. 2024).
Raphael v. State, 994 P.2d 1004, 1011 (Alaska 2000).
A defendant charged with a felony offense shall be present at a felony first appearance, an arraignment, any hearing where evidence will be presented, a change of plea hearing, at every stage of trial, including the impaneling of the jury and return of the verdict, at a sentencing hearing, and at a hearing on an adjudication or disposition for a petition to revoke probation.
Alaska courts "have interpreted the language of Rule 38(a) literally to secure a defendant's right to be present even at stages of the trial that are arguably not substantive in nature." Our supreme court has held that "[a] violation of a defendant's right to be present is reversible error unless it is harmless beyond a reasonable doubt."Alaska courts have "found reversible error in situations where the defendant's presence could have had an impact on the decisional process."
Id. at 1011-12.
Id. at 1013.
Id. (quoting State v. Hannagan, 559 P.2d 1059, 1065-66 n.20 (Alaska 1977)).
One more rule is relevant to this appeal: Alaska Criminal Rule 16. Under Criminal Rule 16(b)(1)(A), the State is generally required to disclose "[t]he names and addresses of persons known by the government to have knowledge of relevant facts" to the accused. But Criminal Rule 16(d)(4) provides that, "upon a showing of cause, the court may at any time order that specified disclosure be restricted or deferred . . . provided that all material and information to which a party is entitled shall be disclosed in time to permit the party's counsel to make beneficial use thereof." Furthermore, under Criminal Rule 16(d)(6)(A), "upon request of any party, the court may permit . . . any showing of cause for denial or regulation of disclosure . . . to be made to the court in camera ex parte."
The hearings Lopezleon challenges on appeal can be grouped into two categories. The first category is the set of hearings held between April 1, 2014 and May 5, 2015, after Ignacio Lopez and C.U. were located after failing to appear at trial. The second category consists of the set of hearings held between September 1, 2016 and September 13, 2016, after C.U. returned from Mexico. In arguing that any violations of his right to be present were reversable error, Lopezleon focuses almost exclusively on the second category of hearings. He fails to make any specific arguments for how his presence could have impacted the decisional process of the series of hearings held between April 1, 2014 and May 5, 2015.
As to the first category of hearings, we have reviewed the hearings at issue and we conclude that any violation of Lopezleon's right to be present was harmless beyond a reasonable doubt. The hearings concerned the largely ministerial task of keeping track of C.U. before trial, and upon review of the proceedings, it is clear that nothing about the hearings was coercive or could have influenced C.U.'s testimony.
We note that Lopezleon was represented by three different attorneys over the course of these hearings, and all three attorneys apparently believed Lopezleon's presence was of minimal importance. At the April 1, 2014 hearing involving Ignacio Lopez, the court noted Lopezleon's absence at the beginning of the hearing. Lopezleon's attorney, Michael Moberly, responded, "I didn't think that this hearing really involved us." At the May 15, 2014 hearing involving C.U., the court asked Lopezleon's attorney, now Joseph Van de Mark, if there was any date he preferred for the ongoing status hearings. Van de Mark replied, "I don't really think I need to come to these." Finally, at the February 24, 2015 hearing involving C.U., the court noted that it had contacted Lopezleon's attorney, now Natasha Norris, and that she had waived Lopezleon's presence at the hearing.
These three different defense attorneys clearly believed there was little to be gained from Lopezleon's attendance at these routine status hearings. Our review of the record points to the same conclusion: we can say beyond a reasonable doubt that Lopezleon's presence at these hearings could not have had an impact on the decisional process. In other words, any error was harmless beyond a reasonable doubt.
On appeal, the State argues that this evidence, combined with Lopezleon's failure to object to these hearings at some point during the pendency of this case, is sufficient to establish a valid waiver of Lopezleon's right to be present. We question this argument. Under our case law, "the defendant must personally waive his right to be present or expressly consent to allow the proceeding to occur outside his presence," and there is little in the record to suggest that Lopezleon personally waived his right to be present. Pease v. State, 54 P.3d 316, 324-25 (Alaska App. 2002).
The second category of hearings took place after C.U. returned from Mexico. As we have explained above, these hearings were held because the State moved to preclude disclosure of C.U.'s location to Lopezleon under Criminal Rule 16. Lopezleon's attorney, then Natasha Norris, was present at the first of these hearings and informed the court she was not opposed to the court proceeding ex parte as long as the court found there was "good cause" to proceed ex parte.
On appeal, Lopezleon's primary complaint about these later hearings is that the superior court failed to make findings requested by his attorney. Indeed, Lopezleon asserts the court "completely failed" to "make a record regarding the necessity of holding the hearing ex parte."
But this assertion is incorrect. Although it is true that the superior court did not make findings to justify holding the hearings ex parte at the September 1, 2016 hearing, the court made detailed findings justifying that decision the very next day, at the September 2 hearing.
We have quoted those findings in detail above. In brief, the court found that there was "a palpable threat of physical harm" and "an intent to influence [C.U.'s] testimony or prevent her from testifying," and that "pressures have been applied to that effect by not just Mr. Lopezleon but members of his family." Given these findings, the court granted the State's request to control discovery and proceed ex parte, ruling that "until further court order, the State need not disclose location information for [C.U.]."
Lopezleon does not acknowledge these findings in his briefing; he does not argue they should have occurred earlier, that they were legally insufficient or clearly erroneous, or that they were deficient in any way. Instead, he simply ignores them. The State addresses the superior court's findings in its brief, pointing out that "the court made a thorough record, contrary to Lopezleon's claim," and describing those findings in detail. Rather than respond to this portion of the State's brief, Lopezleon acts as if it does not exist, asserting in his reply brief that "the State here makes no attempt to argue that [the superior court] followed the law and ma[d]e the required findings to proceed ex parte."
We have previously said that when an appellate litigant fails to address the trial court's ruling or explain why it was wrong, the defendant has waived their claim for inadequate briefing. To be sure, the doctrine of inadequate briefing is typically invoked when "a point is not given more than a cursory statement in the argument portion of a brief." Here, there is no doubt that Lopezleon's briefing includes more than a cursory statement arguing that the superior court failed to make any findings to justify proceeding ex parte. He has therefore adequately briefed the specific issue of whether such findings were made. But the remaining question, which Lopezleon has failed to address, is whether those findings were sufficient to justify the court's decision to proceed ex parte. Because Lopezleon's briefing contains no argument on this point, he has waived it for inadequate briefing.
Vickers v. State, 175 P.3d 1280, 1287 (Alaska App. 2008).
Petersen v. Mut. Life Ins. Co. of New York, 803 P.2d 406, 410 (Alaska 1990).
To the extent Lopezleon means to argue that no findings could have possibly justified the court's decision to hold the hearing ex parte i.e., that defendants have an absolute right to be present at material witness hearings, either as a matter of constitutional law or under Criminal Rule 38(a) - we are aware of no authority supporting this position, and we think Lopezleon's witness tampering in this case is sufficient to show why such an absolute rule would make little sense.
Lastly, we note that in addition to arguing that the hearings at issue were prejudicial, Lopezleon also argues that the superior court's "multiple," "egregious," and "deliberate" violations of his right to be present constitute structural error, and thus require reversal regardless of prejudice. We question whether we have the authority to apply the doctrine of structural error to a violation of a criminal defendant's right to be present. As we have already discussed, our supreme court has previously held a violation of the right to be present is reviewable for harmless error, and we have no authority to overrule a decision of the Alaska Supreme Court.
Raphael, 994 P.2d at 1013.
But we need not address this issue further because Lopezleon's structural error argument relies on factual misrepresentations of the record. He asserts, for example, that structural error exists because the court "never notified him or his lawyer that these hearings were being conducted," even though three different attorneys were aware of the hearings and indicated they did not want to attend. He also asserts that the court held the second set of hearings ex parte without any justification, even though, as we have explained, the court made detailed factual findings to justify its decision. We therefore reject Lopezleon's structural error argument.
Conclusion
For the reasons explained in this decision, the judgment of the superior court is AFFIRMED.