Opinion
Court of Appeals No. A-12644 No. 6737
11-21-2018
WILLIAM ALAN RILEY-JENNINGS, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Elizabeth D. Friedman, Law Office of Elizabeth D. Friedman, Redding, California, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, 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-09-13712 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Jack W. Smith, Judge. Appearances: Elizabeth D. Friedman, Law Office of Elizabeth D. Friedman, Redding, California, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, and Allard and Wollenberg, Judges. Judge WOLLENBERG.
The State charged William Alan Riley-Jennings with one count of second-degree escape for leaving a community residential center (CRC) without authorization. To establish this charge, the State had to prove that Riley-Jennings removed himself without lawful authority from official detention for a felony.
AS 11.56.310(a)(1)(B).
At trial, Riley-Jennings did not dispute that he was under official detention while at the CRC and that he left the CRC unlawfully. But he argued that, at the time he left the CRC, he was in official detention for a misdemeanor rather than for a felony — and he was therefore guilty of a lesser offense, fourth-degree escape.
AS 11.56.330(a)(1).
In support of this argument, Riley-Jennings relied on the testimony of Chris Lyou, a supervising probation officer at the Anchorage Correctional Complex. Lyou acknowledged that, when the Department of Corrections (DOC) evaluated Riley-Jennings's suitability for placement at the CRC, a DOC employee erroneously indicated on the placement form that Riley-Jennings was an "unsentenced misdemeanant." But Lyou testified that court documents, rather than DOC documents, dictate an inmate's charges, and that Riley-Jennings was actually in DOC custody (and placed at the CRC) for a felony charge.
Riley-Jennings's attorney declined to stipulate that Riley-Jennings's underlying charge was a felony. But the attorney acknowledged that the State was entitled to introduce evidence to establish that fact. The defense attorney objected only to the introduction of testimony or other evidence identifying the specific felony offenses for which Riley-Jennings was being held (i.e., two counts of failure to stop at the direction of a peace officer and one count of first-degree promoting contraband).
Near the end of the State's case, the prosecutor sought to admit the charging document from Riley-Jennings's underlying case to establish that Riley-Jennings had been charged with a felony. But the prosecutor stated that he was open to alternatives to minimize the prejudice to Riley-Jennings that might result from alerting the jury to the nature of the felony charges.
As an alternative to admitting the charging document, the prosecutor proposed asking an assistant district attorney who regularly handled arraignment hearings, but had no prior involvement in Riley-Jennings's case, to review the underlying charging document and testify that one of the charges was a class C felony. The prosecutor suggested that he could lodge the charging document and show it to the witness, but refrain from providing it to the jury.
The defense attorney acknowledged that he had previously asked to limit the State's evidence to the fact that the charge was a felony, and the attorney announced that he could see no basis for objecting to the prosecutor's proposal. The defense attorney requested only that the witness refrain from identifying Riley-Jennings's felony offense as a "class C felony" and instead describe the offense simply as a "felony."
The trial court noted that it would be "cleaner" if the parties would stipulate that one of the counts was a felony, but the court acknowledged that this decision was up to the parties, so the court agreed to proceed as the State proposed.
When called to testify, the assistant district attorney briefly described her experience handling arraignments. The prosecutor then handed her the charging document in Riley-Jennings's felony case; the witness identified the document as a charging document and stated that the document charged Riley-Jennings with a felony offense. The defense attorney did not object, and he did not cross-examine this witness.
The jury subsequently found Riley-Jennings guilty of second-degree escape, as charged.
On appeal, Riley-Jennings now argues that the trial court committed plain error in allowing the assistant district attorney to testify about the contents of the charging document. Riley-Jennings argues that this testimony was inadmissible hearsay and that its introduction violated his confrontation rights.
This position is directly at odds with the position Riley-Jennings took in the trial court. In the trial court, Riley-Jennings's attorney repeatedly acknowledged that the State was entitled to introduce evidence to show that the underlying charge was a felony. The attorney's main concern was preventing the jury from learning the nature of Riley-Jennings's underlying felony offenses.
The procedure that the prosecutor proposed, and that the court ultimately adopted, was designed to address the defense attorney's concerns about the introduction of potentially prejudicial information. The defense attorney participated in the discussion of how the State would present this evidence, and the defense attorney stated that he had no objection to the prosecutor's proposal, so long as the assistant district attorney refrained from identifying Riley-Jennings's felony charge as a "class C" felony.
Given this record, we conclude that Riley-Jennings's failure to object to this procedure — in fact, his attorney's affirmative statement that he had no objection to the procedure — constituted a knowing and strategic waiver, precluding a finding of plain error.
See Moreno v. State, 341 P.3d 1134, 1146 (Alaska 2015); see also Adams v. State, 261 P.3d 758, 770 (Alaska 2011) (recognizing that an error does not qualify as plain error "where the right at issue was intelligently waived or the defendant's decision not to object to the error was strategic or tactical").
In any event, even if we analyzed Riley-Jennings's claim under the plain error standard, Riley-Jennings has not established that the judge committed any error, let alone plain error. As Alaska courts have long held, hearsay is admissible in the absence of a timely objection. Moreover, the testimony by the assistant district attorney was based directly on the charging document, a public record for purposes of the hearsay exception under Alaska Evidence Rule 803(8).
Cassell v. State, 645 P.2d 219, 221 (Alaska App. 1982) (citing Hayes v. State, 581 P.2d 221, 222 n.2 (Alaska 1978)).
In addition, we find it difficult to understand Riley-Jennings's confrontation claim. The charging document was available to the defense attorney, and the defense attorney had a clear opportunity to cross-examine the assistant district attorney who testified about this charging document. Riley-Jennings never argued that admitting a redacted version of the charging document into evidence would be improper, nor did he dispute the validity or the accuracy of the document itself.
Riley-Jennings appears to be arguing that he was entitled to cross-examine the prosecuting attorney who was actually present at his arraignment — and that the State could not rely solely on the charging document to prove that Riley-Jennings was charged with a felony. He analogizes his case to McCord v. State, in which we held that presenting the results of toxicology testing on McCord's blood samples through the testimony of the non-testing analyst violated McCord's right to confront the analyst who actually conducted the testing.
McCord v. State, 390 P.3d 1184, 1185-86 (Alaska App. 2017).
But the assistant district attorney who testified at Riley-Jennings's trial did not describe what happened at Riley-Jennings's arraignment. Instead, she merely confirmed the contents of an admissible document and read a redacted version of those contents to the jury. Riley-Jennings does not explain why the confrontation clause, as interpreted in Crawford v. Washington, is implicated under these circumstances; indeed, he does not cite to or discuss Crawford. And, as we have already explained, Riley-Jennings's attorney seemingly waived any confrontation claim when he told the trial judge that he had no objection to the testimony that Riley-Jennings now challenges. We therefore conclude that Riley-Jennings's confrontation claim is inadequately briefed.
Crawford v. Washington, 541 U.S. 36, 50-56 (2004). --------
For these reasons, we AFFIRM the superior court's judgment.