Made available by Touch N' Go Systems, Inc. and
This was Gottstein but needs to change to what?
406 G Street, Suite 210, Anchorage, AK 99501
(907) 274-7686 fax 274-9493 This site is possible because of the following site sponsors. Please support them with your business.

You can of the Alaska Court of Appeals opinions.

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website to see how.

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

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


              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@  

                              IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                        



                                                                                                         Court of Appeals No. A-11080  


                                                                                                      Trial Court No. 3AN-10-1901 CR  


                                                                                                                       O  P  I  N  I  O  N  



                                                       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-----------------------


 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                                                                           


                                       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  




                   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  




                    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).



             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                                                                                                                 


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-----------------------


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


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).  



                    The judgement of the superior court is AFFIRMED.  

                                                             -  11 -                                                         2490

Case Law
Statutes, Regs & Rules

IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights