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Wassille v. State (2/5/2016) ap-2490

Wassille v. State (2/5/2016) ap-2490

                                                                                  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 Courts:    



                                                     303 K Street, Anchorage, Alaska  99501  

                                                                      Fax:  (907) 264-0878  

                                                          E-mail:  corrections@ akcourts.us  



                              IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                        



ALVIN  E.  WASSILLIE,  

                                                                                                                                                     

                                                                                                         Court of Appeals No. A-11080  

                                                       Appellant,                                                                                                  

                                                                                                      Trial Court No. 3AN-10-1901 CR  



                                          v.  

                                                                                                                       O  P  I  N  I  O  N  

                                                                                                                                                     

STATE  OF  ALASKA,  



                                                       Appellee.                                          No. 2490 - February 5, 2016  

                                                                                                                                                            



                            Appeal   from  the   Superior   Court,  Third  Judicial                                                     District,  

                                                                                                                                      

                            Anchorage, Michael L. Wolverton, Judge.  

                                                                                                  



                            Appearances:                   Josie  Garton,  Assistant  Public  Defender,  and  

                                                                                                                                                 

                            Quinlan Steiner, Public Defender, Anchorage, for the Appellant.  

                                                                                                                                                          

                            Diane  L.  Wendlandt,  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 Hanley,  

                                                                                                                                          

                            District Court Judge.*  

                                                                         



                                         

                            Judge MANNHEIMER.  



                            Alvin E.           Wassillie was serving a felony sentence at a halfway house in                                                                    



Anchorage   when   he   walked   away   from   the   facility   without   authorization.     A jury   



       *      Sitting    by   assignment   made   pursuant   to   Article   IV,   Section   16   of   the   Alaska  



Constitution and Administrative Rule 24(d).                               


----------------------- Page 2-----------------------

                                                                                                                                                                                                                                                       1  

 convicted him of escape in second degree.                                                                                                                                                                                                                   On appeal, Wassillie asserts the superior                                                                                                                                                   



 court should have dismissed the indictment against him because the State presented                                                                                                                                                                                                                                                                                                                                                           



inadmissible hearsay to the grand jury.                                                                                                                                                                                    Wassillie also argues the superior court erred by                                                                                                                                                                                                               



 allowing the State to later amend this indictment.                                                                                                                                                                                                                                   



                                                                            With regard to Wassillie's hearsay argument, we conclude that the hearsay                                                                                                                                                                                                                                                                                                        



Wassillie complains of was properly admitted because it fell within the business records                                                                                                                                                                                                                                                                                                                                                                       



 exception to the hearsay rule.                                                                                                                                             And with regard to the amendment of the indictment,                                                                                                                                                                                                    



Wassillie did not object when explicitly given the opportunity,                                                                                                                                                                                                                                                                                                              and we find no plain                                                                           



 error.    



                                       Underlying facts   



                                                                            Wassillie was in the custody of the Department of Corrections, serving a                                                                                                                                                                                                                                                                                                                                              



 sentence for a felony conviction.                                                                                                                                                     In early 2010, the Department placed Wassillie on pre-                                                                                                                                                                                                                                     



release furlough status, and they transferred him to the Parkview Center - a halfway                                                                                                                                                                                                                                                                                                                                                               



house run by a private corporation under contract with the Department.                                                                                                                                                                                                                                                                                                                                                 



                                                                            On February 19, 2010, Wassillie left the Parkview Center on a pass for the                                                                                                                                                                                                                                                                                                                                  



purpose of searching for a job.                                                                                                                                                 He returned a few hours later.                                                                                                                                                     



                                                                            Around the time of Wassillie's return, members of the Parkview Center                                                                                                                                                                                                                                                                                                                 



 staff were notified that someone had brought vodka into the building (in violation of the                                                                                                                                                                                                                                                                                                                                                                                             



 facility's rules).                                                                      After an investigation, the staff concluded that Wassillie had tossed the                                                                                                                                                                                                                                                                                                                     



vodka into the building through an open window.                                                                                                                                                                                                                                        One of the staff contacted Wassillie                                                                                                                           



 and told him                                                              to   wait in the lobby.                                                                                                        This staff member then called the Department of                                                                                                                                                                                                                                  



 Corrections to have an officer come and take Wassillie to jail.                                                                                                                                                                                                                                                                                               



                    1                 AS 11.56.310(a)(1)(B).   



                                                                                                                                                                                                                                          - 2 -                                                                                                                                                                                                                                    2490
  


----------------------- Page 3-----------------------

                                                                       But   before   the   corrections   officer   arrived,   one   of   the   other   Parkview  



 inmates notified the staff that Wassillie had left the building.                                                                                                                                                                                                                                                                 Staff members checked                                                                  



 Wassillie's room, they paged him twice, they looked throughout the building, and they                                                                                                                                                                                                                                                                                                                                                       



 conducted a head count of the residents - but they were unable to locate Wassillie.                                                                                                                                                                                                                                                                                                                                                             By  



  examining a recording made by a security camera, they discovered that Wassillie had                                                                                                                                                                                                                                                                                                                                                            



 walked out of the building through the front door.                                                                                                                                                                                                                    



                                                                       The police located and arrested Wassillie later                                                                                                                                                                                                           that night, approximately                                 



 three miles from the Parkview Center.                                                                                                                                                                       



                                                                       Wassillie was initially indicted for second-degree escape as that crime was                                                                                                                                                                                                                                                                                               



 defined by the pre-2012 version of AS 11.56.310(a)(1)(A) - that is, under the theory                                                                                                                                                                                                                                                                                                                                             



 that Wassillie had unlawfully removed himself from a correctional facility while under                                                                                                                                                                                                                                                                                                                                               



 official detention.                                                                         The jury at Wassillie's first trial was unable to reach a verdict on this                                                                                                                                                                                                                                                                             



 charge, and the court declared a mistrial.                                                                                                                                                                             



                                                                       After his first trial, Wassillie filed a motion to dismiss the indictment on two                                                                                                                                                                                                                                                                                          



 grounds:   first, that the State had presented inadmissible hearsay evidence to the grand                                                                                                                                                                                                                                                                                                                                             



jury, and second, that the Parkview Center did not qualify as a "correctional facility".                                                                                                                                                                                                                                                                                                                                                                                



 The superior court rejected both of these arguments.                                                                                                                                                                                                                                  



                                                                       Nevertheless, prior to Wassillie's second trial, the State filed a motion to                                                                                                                                                                                                                                                                                                       



  amend the indictment - by dropping the "correctional facility" theory of prosecution                                                                                                                                                                                                                                                                                                                 



  and instead charging Wassillie with second-degree escape under the clause of the statute                                                                                                                                                                                                                                                                                                                                         

                                                                                                                                                                                                                                                                                                                                                               2  When the superior  

 that forbade removing oneself "from official detention for a felony".                                                                                                                                                                                                                                                                                                                                                     



 court asked Wassillie's attorney for his position on the State's  motion,  the defense  

                                                                                                                                                                                                                                                                                                                                                                                                                           



  attorney did not oppose it, so the superior court amended the indictment as the State  

                                                                                                                                                                                                                                                                                                                                                                                                                                        



 requested.  

                                                          



                   2                AS 11.56.310(a)(1)(B).                                                                                                  



                                                                                                                                                                                                                         - 3 -                                                                                                                                                                                                                   2490
  


----------------------- Page 4-----------------------

                                                                                                              

                    At Wassillie's second trial, the jury found Wassillie guilty of second-degree  



                                                        

escape under this amended theory.  



                                                                               

                    Wassillie now appeals his conviction.  



                                                                                                           

          The State did not introduce inadmissible hearsay at the grand jury  



                                                                                                                                 

                    Wassillie argues that the State relied on inadmissible hearsay testimony to  



                                                                                               

establish that he left the Parkview Center without permission.  



                                                                                                                          

                    The State presented two witnesses to the grand jury:  a probation officer  



                                                                                                                      

named Chris Lyou, and the director of the Parkview Center, Robert Graber.  



                                                                                                                        

                    Lyou testified that Wassillie was serving a sentence for a felony offense,  



                                                                                                                       

and that the Department of Corrections had placed him at a halfway house.   Graber  



                                                                                          

testified that this halfway house was the Parkview Center.  



                                                                                                                               

                    Graber also testified about Wassillie's unauthorized departure  from the  



                                                                                                                           

Parkview Center.   Graber explained that the Parkview staff conducts a physical check  



                                                                                                                      

of the Center's inmates every hour, to make sure that all the inmates who are supposed  



                                                                                                                       

to be in the building are in fact present.  If the staff learns that a person may be missing,  



                                                                                                                     

they lock down the building and they conduct two head counts by physically searching  



                     

the building.  



                                                                                                                                 

                    Graber explained that it is the business practice of the Parkview Center to  



                                                                                                                                     

create an "incident report" whenever a person leaves the Center without authorization.  



                                                                                                                

Through  Graber,  the  prosecutor  introduced  the  incident  report  that  documented  



                                                                                                                         

Wassillie's unauthorized departure from the Parkview Center.  This report was written  



                                                                                                                             

by Parkview Center staff member Eric Dulany, and it described the actions that the staff  



                                                                                          

took after Dulany was notified that Wassillie was missing.  



                                                              - 4 -                                                          2490
  


----------------------- Page 5-----------------------

                                                                                                                         

                    Dulany did not testify at the grand jury.   Instead, relying on this incident  



                                                                                                                       

report, Graber described how the Parkview staff responded when they were informed  



                                                                                                                     

that  Wassillie  had  left  the  Center  without  permission,  and  how  the  staff  ultimately  



                                                                                

determined that Wassillie had in fact walked away.  



                                                                                                                         

                    On appeal Wassillie argues this incident report was inadmissible hearsay  



                                                                                                                                

because it was introduced for the  truth of the matters asserted in it, and because the  



                                                                                                                            

author of the report did not testify at the grand jury.  But given Graber's testimony about  



                                                                                                                     

the business practices of the Parkview Center, the incident report was clearly admissible  



                                                                                                                         

under Alaska Evidence Rule 803(6) - the business records exception to  the hearsay  



         

rule.  



                                                                                                             

                    Evidence Rule 803(6) creates a hearsay exception for any "memorandum,  



                                                                                                                         

report,  record,  or  data  compilation  ...  in  any  form"  that  describes  "acts,  events,  



                                                                                         

conditions, opinions, or diagnoses" if three conditions are met:  



                                                                                                                                 

          *	   The record (or memorandum or report or data compilation) was made at or  



                                               

               near the time of the occurrence;  



                                                                                                                           

          *	   The record was made by, or was based on information transmitted by, a person  



                                                                                                                        

               with knowledge acquired of a regularly conducted activity of that business  



                                 

               entity; and  



                                                                                                                              

          *	   It was the regular practice of that business entity to make and keep that kind  



                                  

               of record.  



                                                                                                                                

                    Evidence  Rule  803(6)  states  that  these  foundational  elements  can  be  



                                                                                                                                 

established "by the testimony of the [records] custodian or other qualified witness".  In  



                                                                                                                        

Wassillie's case, Graber (the director of the Parkview Center) testified about the business  



                                                                                                                          

practices that the Center followed whenever the staff received a report that an inmate  



                                                                                                                           

might  be  missing.            One of these business practices was to create an incident report  



                                                                                                          

whenever an inmate did in fact leave the Center without permission.  



                                                               - 5 -	                                                         2490
  


----------------------- Page 6-----------------------

                          (We note that the Center was also under a statutory duty to know the                                                                  



location of its inmates, to supervise them, and to immediately report "any violation of a                                                                            

condition set for the prisoner's conduct."                                     3)  



                          Thus,  the incident report  relating to Wassillie's unauthorized departure  

                                                                                                                                                    



from the Parkview Center was presumptively admissible under the business records  

                                                                                                                                                        



hearsay exception.  

                                      



                          We acknowledge that Evidence Rule 803(6) contains a provision stating  

                                                                                                                                                         



that a business record should not be admitted (at least, not as hearsay) if "the source of  

                                                                                                                                                                   



[the] information or the method or circumstances  of [the] preparation [of the record]  

                                                                                                                                                        



indicate [a] lack of trustworthiness."  But other than noting that the incident report refers  

                                                                                                                                                            



to hearsay statements of staff members and another Parkview resident, Wassillie has not  

                                                                                                                                                                 



suggested that there is anything about the content of the incident report, or the method  

                                                                                                                                                        



of its preparation, to indicate a lack of trustworthiness.  

                                                                                                           



                          Wassillie points out that the Commentary to Alaska Evidence Rule 803(6)  

                                                                                                                                                          



states that business records are presumed to be accurate only if the record is made when  

                                                                                                                                                            

                                                                                          4   Wassillie argues that no incident report  

the observer or participant "is acting routinely".  

                                                                                                                                                           



relatingto an escape from the Parkview Center can satisfy this test, because escapes from  

                                                                                                                                                              



the Center are unexpected rather than routine.  

                                                                                          



                          This argument is based on a misreading of the rule and the commentary.  

                                                                                                                                                                        



The rule does not require that the occurrence be routine.  Rather, the rule requires that  

                                                                                                                                                               



the making of the record be routine - i.e., that the business practices of that entity call  

                                                                                                                                                                



upon its employees to accurately report and record that kind of occurrence.  

                                                                                                                                                  



       3     See  AS 33.30.111(c)(2) and (c)(4).
                              



      4  

                                                                                                                               

             Commentary to Alaska Evidence Rule 803(6), third paragraph.
  



                                                                               - 6 -                                                                          2490
  


----------------------- Page 7-----------------------

                                                   Wassillie also contends that the incident report relating to his escape was                                                                                                                                                                                          



prepared "in anticipation of litigation", and therefore was not admissible.                                                                                                                                                                                                       



                                                   Often times, when a business entity establishes an internal rule or procedure                                                                                                                                                                  



requiring its employees to keep records of a certain type of                                                                                                                                                                               occurrence,   one of the                                                       



business entity's motivations for establishing this internal rule or procedure is that the                                                                                                                                                                                                                                



business entity anticipates that this type of occurrence may give rise to litigation.                                                                                                                                                                                                                                But  



this   is   not   what   courts   mean   when   they   speak   of   business   records   prepared   "in  



anticipation of litigation".                                                                    Rather, this phrase refers to records that are                                                                                                                             not  prepared as   



a matter of course, under                                                                     established internalrules                                                                  or procedures, but rather are prepared                                                                       



 specially in response to a particular occurrence, because the business entity anticipates                                                                                                                                                                                                     



that litigation will arise from that occurrence.                                                                            



                                                   As  McCormick on Evidence                                                                                   explains, the business record exception does                                                                                                           



not cover reports prepared by a business entity's employees "where the only function                                                                                                                                                                                                                   



that the report                                           serves   is   to assist in litigation or [in] preparation [for litigation]" -                                                                                                                                                                                     



because,   in such circumstances,                                                                                            "many of                                  the normal checks upon the accuracy of                                                                                                                 



                                                                                                                                         5  

business records are not operative."                                                                                                         



                                                   For instance, in Abyo v. State , 166 P.3d 55, 59-60 (Alaska App. 2007), we  

                                                                                                                                                                                                                                                                                                                            



were asked to decide whether the business records or public records exception applied  

                                                                                                                                                                                                                                                                                                            



to the Department of Public Safety's reports verifying the calibration of the breath test  

                                                                                                                                                                                                                                                                                                                         



machines used throughout this State to test DUI arrestees.  We acknowledged that these  

                                                                                                                                                                                                                                                                                                                   



"verification of calibration" reports are prepared "in anticipation of criminal litigation  

                                                                                                                                                                                                                                                                                                       



             5           Kenneth S.                                   Broun  et alia                                       ,  McCormick on Evidence                                                                       (7th ed. 2013),  288, Vol. 2,                                                                        



p.  440 n. 31.                                 



                                                                                                                                                            - 7 -                                                                                                                                                       2490
  


----------------------- Page 8-----------------------

                                    6  

in a general sense".                   But we held that these reports still fell within the exception because                                     



                                                                                                                                                 7  

the reports are not prepared "in anticipation of litigation                                            in a particular case                  ."  



                         This  same reasoning applies to the Parkview Center's incident reports  

                                                                                                                                                   



relating to inmate escapes.  Even though one of Parkview's motives in establishing the  

                                                                                                                                                           



reporting requirement may have been to better its position if any litigation were to arise  

                                                                                                                                                        



from an escape, the report in this case - the report relating to Wassillie's escape - was  

                                                                                                                                                          



not  specially  created  in  anticipation  of  litigation  arising  from  Wassillie's  particular  

                                                                                                                                               



escape.  Rather, the report was created because, under the Parkview Center's business  

                                                                                                                                                  



procedures, its employees are required to prepare an incident report whenever any inmate  

                                                                                                                                                    



leaves without permission, whether or not there is any prospect of litigation.  

                                                                                                                                               



                         Accordingly,  the  incident  report  in  Wassillie's  case  was  not  prepared  

                                                                                                                                                



"in anticipation of litigation" as that phrase is understood in this context.  

                                                                                                                                      



                         Wassillie also argues that the Parkview Center's incident report does not  

                                                                                                                                                           



satisfy the requirements of the public records hearsay exception, Evidence Rule 803(8).  

                                                                                                                                                                   



Based on this purported failure to satisfy the public records exception, Wassillie then  

                                                                                                                                                        



argues that the incident report necessarily fails to satisfy the requirements of the business  

                                                                                                                                                 



records exception.  

                                     



                         In Wilson v. State, 756 P.2d 307, 312-13 (Alaska App. 1988), we expressly  

                                                                                                                                                



rejected the argument that a business record must also satisfy the requirements of the  

                                                                                                                                                           



public records exception.  Our decision in  Wilson controls this issue.  

                                                                                                                                



                         For all of these reasons, we conclude that the incident  report relating to  

                                                                                                                                                             



Wassillie's escape from the Parkview Center was admissible under the business records  

                                                                                                                                                    



      6     Abyo , 166 P.3d at 60.                  



      7     Ibid.  



                                                                            - 8 -                                                                        2490
  


----------------------- Page 9-----------------------

                                                                                                                     

exception to the hearsay rule.  The superior court therefore properly denied Wassillie's  



                                                                        

motion to dismiss the indictment on this basis.  



                                                                                                                    

                    Although  we  reach  this  conclusion,  we  acknowledge  that  Wassillie's  



                                                                                                                              

hearsay objection was correct with regard to a small portion of the incident report.  The  



                                                                                                                               

report recites that one of the Parkview inmates told the Parkview staff that Wassillie had  



                                                                                                                           

thrown a bottle of vodka into his room in an attempt to get him in trouble.   The report  



                                                                                                                                

also identifies this same inmate as the one who initially reported that Wassillie had left  



                                                       

the Center through the front door.  



                                                                                                                               

                    This  information  came  from  an  inmate  who  (unlike  members  of  the  



                                                                                                                                

Parkview Center staff) was under no business duty to honestly or accurately report the  



                                                                                                                                

activities of other inmates.  Thus, the inmate's statements to the Parkview staff did not  



                                                                                                                                  

fall within the business records exception, and those statements were not admissible to  



                                                                                                                              

prove the truth of the matters asserted.   The inmate's statements were admissible only  



                                                                                                                      

for the limited purpose of showing that the inmate made these statements to the Parkview  



                                                                                                                       

staff  -  thus  causing the  staff  to  initiate  their  procedures  for  ascertaining whether  



                                                                                       

Wassillie had indeed left the Center without permission.  



                                                                                                                            

                    Technically, then, the grand jurors should have been instructed that when  



                                                                                                                                 

they considered the incident report, they could not consider the report's description of  



                                                                                                                                 

the inmate's statements as proof of the matters asserted  by the inmate,  but only as  



                                                                                                                                  

evidence that the inmate made these statements to the Parkview staff.                                            But there is  



                                                                                                                            

essentially no possibility that this error influenced the grand jury's decision to indict  



                                 

Wassillie for escape.  



                                                               - 9 -                                                          2490
  


----------------------- Page 10-----------------------

                                                                                                          

           Wassillie waived any objection to the State's amendment of the indictment  



                                                                                                                              

                    As  we  explained  toward  the  beginning  of  this  opinion,  Wassillie  was  



                                                                                                                        

initially     charged        with      second-degree            escape       under       the     provisions        of     former  



                                                                                                                              

AS 11.56.310(a)(1)(A) - i.e., under the theory that he unlawfully removed himself from  



                                    

a correctional facility.  



                                                                                                                                 

                    Then,  following the mistrial on this charge,  the State filed a motion to  



                                                                                                                         

amend the indictment by charging Wassillie under a different subsection of the second- 



                                                                                                                       

degree escape statute - this time, under the theory that Wassillie unlawfully removed  



                                                                        

himself "from official detention for a felony".  



                                                                                                                                 

                    When the superior court asked Wassillie's attorney if he took a position on  



                                                                                                                                 

the State's request to amend the indictment, the defense attorney told the court that he  



                                                                                                                    

"[did not] see a basis to object" to the proposed amendment of the charge.  



                                                                                                                      

                    At  the  same  time,  Wassillie's  attorney  indicated  that  the  proposed  



                                                                                                                           

amendment of the indictment would probably not affect Wassillie's defense to the escape  



                                                                                                                               

charge.  The defense attorney told the court that he intended to argue that Wassillie was  



                                                                                                                                 

authorized to leave the Parkview Center - that he had a pass that allowed him to be  



                                                                                                                                

physically absent from the Center, and that he was exercising that privilege when he left  



                                                       

the Center on the day in question.  



                                                                                                                         

                    After hearing the defense attorney's position on these matters, the superior  



                                                                                          

court granted the State's motion to amend the indictment.  



                                                                                                                             

                    Now, on appeal, Wassillie argues that the superior court committed error  



                                                                                                                              

by allowing the State to amend the indictment. He asserts that if the State wanted to take  



                                                                                                                               

him to trial on a different theory, the State was required to return to the grand jury and  



                                                               

obtain a new indictment on that theory.  



                                                              -  10 -                                                         2490
  


----------------------- Page 11-----------------------

                                                                                                                 

                    Wassillie has waived this argument.                       Alaska Criminal Rule 12(b)(1)-(2)  



                                                                                                                               

declares that all "[d]efenses and objections based on defects in the  institution of the  



                                                                                                                             

prosecution" or based on "defects in the indictment" must be raised before trial.   And  



                                                                                                                          

Rule 12(e) declares that a defendant's failure to raise these defenses or objections before  



                                                                                                                        

trial (or before any pre-trial deadline set by the court) constitutes a waiver of the defense  



                      

or objection.  



                                                                                                                  

                    For these reasons, Wassillie has waived his right to attack the amendment  



                                                 

of the indictment in this appeal.  



                                                                                                                

                    Nor does the record show plain error.   Wassillie's attorney affirmatively  



                                                                                                                                

told the superior court that he had no basis for objecting to the proposed amendment of  



                                                                                                                               

the indictment,  and the defense attorney further  implied that the amendment of the  



                                                                                                                               

indictment would, in any event, have little effect on Wassillie's planned defense to the  



                                                                                                                            

charge.  Under both the State's initial theory and the State's amended theory, the State  



                                                                                                                             

was  required  to  prove  that  Wassillie's  departure  from  the  Parkview  Center  was  



                                                                                                                           

unauthorized - and the defense attorney told the court that Wassillie was goingto assert  



                                                                                                        

that he was authorized to leave the Center (because he had a pass).  



          Conclusion  



                                                                                

                    The judgement of the superior court is AFFIRMED.  



                                                             -  11 -                                                         2490
  

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