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Espinal v. State (11/17/2009) ap-2245

Espinal v. State (11/17/2009) ap-2245

                             NOTICE
     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate
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             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878
       E-mail:  corrections@appellate.courts.state.ak.us

         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


AIRJETIS ESPINAL,                  
                                   
                    Petitioner          Court  of Appeals No.  A-
,                                  10606
                                             Trial Court No. 3AN-
               v.                  07-721 Cr
                                   
STATE OF ALASKA,                   
                                                   O  P  I  N   I
                    Respondent     O  N
.                                  
End of Caption                     
                                              No.  2245  November
                                   17, 2009
                                   
          Petition for Review from the Superior  Court,
          Third Judicial District, Anchorage, Larry  D.
          Card, Judge.

          Appearances:    Krista  Maciolek,   Assistant
          Public  Advocate, Palmer, and Rachel  Levitt,
          Public    Advocate,   Anchorage,   for    the
          Petitioner.   Brittany L.  Dunlop,  Assistant
          District   Attorney,  and  Adrienne  Bachman,
          District  Attorney, Anchorage, and Daniel  S.
          Sullivan, Attorney General, Juneau,  for  the
          Respondent.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Bolger, Judges.

          MANNHEIMER, Judge.

          Airjetis  Espinal  petitions this Court  to  review  an
evidentiary  ruling  of  the superior  court.   For  the  reasons
explained  here,  we deny the petition; that is,  we  decline  to
review the superior courts ruling at this time.
          Espinal    was   originally   charged   with   sexually
assaulting, or attempting to sexually assault, four people during
the course of a single evening:  J.L., M.T., K.T., and P.M..   In
addition, Espinal was charged with attempting to murder J.L..
          Espinal  was  brought to trial in April of  this  year.
The  jury acquitted him of sexually assaulting M.T. and K.T., and
the jury also acquitted him of three of the four counts involving
P.M..   However,  the jury was unable to reach a verdict  on  the
fourth count involving P.M., and the jury was likewise unable  to
reach a verdict on the attempted murder and sexual assault counts
involving J.L..  The State announced its intention to retry these
counts, and Espinal now faces a second trial.
          In  advance  of Espinals second trial, the State  asked
the  superior court for permission to introduce evidence  tending
to  prove  that  Espinal  sexually  assaulted  M.T..   The  State
acknowledged  that  Espinal  had  been  acquitted   of   sexually
assaulting M.T., but the State argued that this acquittal did not
bar  the  introduction  of the evidence at Espinals  
trial on other charges, pursuant to Alaska Evidence Rule 404(b).
See United States v. Watts, 519 U.S. 148, 155-56; 117 S.Ct. 633, 637; 136 L.Ed.2d 554 (1997); Dowling v. United States, 493 U.S. 342, 349; 110 S.Ct. 668, 672; 107 L.Ed.2d 708 (1990) (both holding that an acquittal in a criminal case does not preclude the government from re-litigating the underlying facts in a subsequent action if the litigation of those facts is governed by a lower standard of proof). See also Hess v. State, 20 P.3d 1121, 1125-27 (Alaska 2001).
Espinal opposed the States request. He argued that the States proposed evidence was not admissible under Evidence Rule 404(b), and he further argued that even if the evidence was admissible under Rule 404(b), the evidence was barred by the constitutional protection against double jeopardy. Specifically, Espinal argued that, because the jury at his first trial acquitted him of sexually assaulting M.T., the double jeopardy clause of either the Federal Constitution or the Alaska Constitution now prohibited the State from introducing any evidence tending to prove his factual guilt of this offense.
The superior court rejected Espinals double jeopardy argument and further ruled that the evidence was admissible under the provisions of Evidence Rule 404(b). Espinal now petitions this Court to review and reverse the superior courts decision.
In his petition, Espinal challenges both portions of the superior courts ruling. That is, Espinal argues that the superior court reached the wrong conclusion regarding whether the proposed evidence is admissible under Evidence Rule 404(b), and he further argues that the double jeopardy clause prohibits the State from introducing any evidence concerning his purported sexual assault of M.T., even if this evidence would otherwise be admissible under Rule 404(b).
However, Espinal makes one further argument an argument concerning appellate procedure. Espinal argues that, because his double jeopardy claim is at least debatable, this Court has no discretion to refuse to hear his petition. Espinal contends that this Court must grant his petition (i.e., agree to hear the petition) and that, as a consequence, this Court is obliged to order a stay of the proceedings in the superior court until we resolve the merits of his petition.
As authority for his position that this Court has no discretion to refuse to hear his petition, Espinal relies on this Courts decision in Tritt v. State, 134 P.3d 364 (Alaska App. 2006). According to Espinal, Tritt stands for the proposition that this Court must grant any petition for review that raises a double jeopardy claim. But a close reading of Tritt shows that it stands for a narrower rule.
The issue in Tritt was whether this Court had the discretion to deny a petition for review in which a criminal defendant claimed that he was unconstitutionally being forced to go to trial a second time. Id. at 365. The trial judge in Tritt had declared a mistrial without Tritts consent; Tritt claimed that there had been no manifest necessity for declaring a mistrial, and thus the double jeopardy clause prohibited the State from trying him again. Id.
In our decision in Tritt, we adhered to what the Alaska Supreme Court had stated earlier in an unpublished order in a similar case, Artemie v. State. Quoting the supreme courts order in Artemie, we agreed that this Court should grant and decide petitions seeking review of a denial of a defendants pretrial motion to dismiss on double jeopardy grounds, unless it is plain that the petition has no merit. Tritt, 134 P.3d at 366.
For present purposes, the important portion of that last sentence is the language denial of a ... motion to dismiss on double jeopardy grounds. In other words, our decision in Tritt does not apply to all motions that rest on a double jeopardy rationale. Rather, Tritt applies only to motions to dismiss that is, motions claiming that another trial is prohibited because of the defendants former jeopardy. As we explained in Tritt, when a defendant files such a motion and the trial court denies it, this Court should normally grant immediate review because, if the defendant [is] right, the defendant would suffer constitutional harm just by being forced to undergo a second trial, regardless of how that trial ended. Id. at 365.
Although Espinals claim is based on double jeopardy principles, his claim is not a motion to dismiss. He does not contest the States right to bring him to trial again on the remaining charges. Rather, the issue that Espinal wishes to litigate in this petition for review involves the scope of the evidence that will be admissible at this second trial. Accordingly, Tritt does not require us to grant Espinals petition and decide the merits of his underlying claims at this time.
There appears to be no reason for this Court to grant interlocutory review and interrupt the normal course of proceedings in the superior court. It is clear that Espinal has preserved his underlying evidentiary claims in the superior court his argument that the States proposed evidence is not admissible under Evidence Rule 404(b), and his further argument that, even if the evidence is admissible under Evidence Rule 404(b), the double jeopardy clause bars the State from introducing the evidence. Espinal can therefore raise these issues on appeal if he is convicted.
For these reasons, Espinals petition for review is DENIED.





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