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M. H. v. State (9/23/2016) ap-2525

M. H. v. State (9/23/2016) ap-2525


                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-12332  


                                                             Appellant,                                            Trial Court No. 3PA-14-036 DL  


                                                                                                                                    O  P  I  N  I  O  N  



                                                             Appellee.                                            No. 2525 - September 23, 2016  


                               Appeal from the Superior Court, Third Judicial District, Palmer,  


                               Gregory Heath, Judge.  


                               Appearances:                     Renee  McFarland,  Assistant  Public  Defender,  


                               and  Quinlan  Steiner,  Public  Defender,  Anchorage,  for   the  


                               Appellant.   June Stein, Assistant Attorney General, Office of  


                               Criminal Appeals, Anchorage, and Craig W. Richards, Attorney  


                               General, Juneau, for the Appellee.  


                               Before:  Mannheimer, Chief Judge, Allard, Judge, and Suddock,  


                               Superior Court Judge.*  



                               Judge MANNHEIMER.  

                               Under Alaska Delinquency Rule 21(a), delinquency proceedings are tried                                                                                       

to the court unless the juvenile requests a jury trial.                                                              Rule 21(a) also states that a request                          

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

Constitution and Administrative Rule 24(d).                                       

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


for jury trialmust be made "no later than 20 days before any scheduled trial date" (unless  


there is good reason to allow the request to be made with less advance notice).   The  


primary question presented in this appeal is how to interpret the phrase "scheduled trial  




                     In Alaska, most criminal and delinquency cases are not given a specific date  


for trial until just before they are actually tried.  


                     Instead, if a case is to be tried, it will be placed among a group of cases that  


are presumptively ready for trial, and the entire group of cases will be scheduled for a  


status hearing or conference.  This status hearing or conference is sometimes called a  


"trial call", or a "calendar call", or simply a "scheduling hearing".   But regardless of its  


label, the function of this court proceeding is (1) to determine which cases among the  


group are, indeed, ready for trial, and (2) to establish the order in which the individual  


cases will be tried.  Generally, the first case to be tried is given a date certain, and the  


others are put in a "trailing" status.  That is, those cases are brought to trial whenever the  


preceding case is resolved and the assigned judge becomes available.  


                     For simplicity's sake, we will refer to this court proceeding as a "trial call"  


in this opinion.  


                     The issue in this appeal is whether the requirement of 20 days' advance  


notice for requesting a jury trial should be calculated based on the date of the trial call,  


or whether this deadline should be calculated based on the specific trial date and time  


that the court sets later, as the court works its way through the list of cases to be tried.  


                     For the reasons explained in this opinion, we conclude that when a minor's  


case is not given a specific trial date at the very beginning, but is instead scheduled for  


a trial call, the 20 days' advance notice specified in Delinquency Rule 21(a) is calculated  


based on the date of that trial call.  

                                                                - 2 -                                                          2525

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


           Underlying facts  


                    The State filed a delinquency petition against M.H., alleging that he had  


committed theft.  In November 2014, the superior court set M.H.'s delinquency case for  


a trial call on January 6, 2015.  


                    The attorneys handling M.H.'s delinquency case appeared at the trial call  


on January 6th, and they returned to court on January 8th.  At that time, they announced  


that  M.H.'s  case  had  not  been  resolved,  and  that  M.H.  still wanted  to  go  to  trial.  


However, M.H.'s attorney also stated that she wished to raise a suppression issue.  


                    The court allowed M.H.'s attorney to file the suppression motion the next  


day (January 9th).  At that time, the prosecutor assigned to M.H.'s case noted that M.H.  


had not filed a request for a jury trial, so the prosecutor suggested that the court could  


resolve all of the pending matters by holding a combined evidentiary hearing and bench  


trial the following week (on January 15th).  


                    In response to the prosecutor's suggestion, M.H.'s attorney declared that  


M.H. wanted a jury trial.  The superior court denied this request as untimely.  


                    On January 15th, the court held the evidentiary hearing and denied M.H.'s  


suppression motion.  The court then proceeded to hold a bench trial on the underlying  


allegation against M.H.   At the conclusion of this trial, the court found that M.H. had  


committed the charged theft, and the court adjudged M.H. to be a delinquent minor.  

                                                               - 3 -                                                          2525

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


           Why the 20 days' advance notice specified in Delinquency Rule 21(a) is to  


          be calculated based on the date of the trial call  


                     As  we  explained  earlier,  Delinquency  Rule  21(a)  states  that  a  minor's  


request  for  a  jury  trial normally  must  be  made  "no  later  than  20  days  before  any  


scheduled trial date".  


                     M.H. argues that when a delinquency case is included among the group of  


cases at a trial call, the phrase "scheduled trial date" refers to the specific trial date and  


time that the court later establishes for the delinquency case as the court works its way  


through the group of cases to be tried.  


                     M.H. acknowledges that, given the way trial calls work, it is exceedingly  


rare for litigants to have more than a few days' notice of their specific trial date.  Thus,  


as a practical matter, if a minor's case is among the group of cases scheduled for a trial  


call, it will be impossible for the minor to comply with Rule 21(a)'s requirement that the  


request for jury trial be made at least 20 days in advance of the trial date.  M.H. argues  


that  since compliance with the rule is impossible,  he and all other similarly situated  


minors should be excused from the requirement of giving 20 days' notice.  


                     But  if  we  were  to  interpret  Delinquency  Rule  21(a)  in  the  way  M.H.  


suggests, we would essentially delete the 20 days' notice requirement for all delinquency  


cases that are scheduled for a trial call.  This interpretation of the rule would be in direct  


conflict  with  the  Alaska  Supreme  Court's  purpose  in  enacting the  20  days'  notice  




                     The  legislative  history  of  Rule  21(a)  shows  that  the  supreme  court  


established the requirement of 20 days' advance notice only after the court checked with  


the area court administrators of Alaska's four judicial districts to make sure that 20 days  


would give court administration adequate time to summon  jury  panels and make the  

                                                               - 4 -                                                          2525

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


  other preparations needed for jury trials,                                                                                                                                                                                    especially in smaller court locations.                                                                                                                                                                         The  

 purpose   of   requiring 20                                                                                                           days'   advance   notice   would   be   completely   defeated   if   we  

  adopted M.H.'s proposed interpretation of the rule.                                                                                                                                                                                                                             

                                                                        We therefore hold that when a delinquency                                                                                                                                                                                                       case is among the group of                                                                                                             

  cases scheduled for a trial call, the 20 days' advance notice required by Delinquency                                                                                                                                                                                                                                                                                                                

 Rule 21(a) is to be calculated based on the date of that trial call.                                                                                                                                                                                                                                                                               

                                     The superior court did not abuse its discretion when it denied M.H.'s                                                                                                                                                                                                                                                                                       

                                     request for a relaxation of the 20 days' notice requirement                                                                                                                                                                                             

                                                                        M.H.  argues, in the alternative, that even if he needed to file his request for                                                                                                                                                                                                                                                                                                                      

jury trial 20 days in advance of the trial call, the superior court nevertheless should have                                                                                                                                                                                                                                                                                                                                                     

 honored his tardy request for a jury trial because there was good cause to excuse his                                                                                                                                                                                                                                                                                                                                                                    

  failure to meet the 20-day deadline.                                                                                                                                                         

                                                                        In  I.J. v. State                                                         , 182 P.3d 643 (Alaska App. 2008), this Court adopted a set                                                                                                                                                                                                                                         

  of four criteria that the superior court should use when                                                                                                                                                                                                                                  decidingwhether                                                                           to allow                                    a minor   

 to file a tardy request for jury trial in a delinquency matter.                                                                                                                                                                                                                                                          These criteria are:                                                                                   


                                                                        (1)    [whether]    the    request,    although    untimely    ...    ,    was  

                                                                        nevertheless reasonably prompt given the litigation history of                                                                                                                                                                                                                                                   

                                                                        the case; (2) [whether] the request was made long enough in                                                                                                                                                                                                                                                       

                                                                        advance of the trial that granting the request would not pose                                                                                                                                                                                                                                      

                                                                        a   problem   for   the   court's   scheduling   and   administrative  

                                                                        handling   of   the   case;   (3)   [whether]   there   [is]   reasonable  

                                                                       justification   for   not   holding   the   [minor]   to   [their]   earlier  

                    1                See the January 13, 2010 minutes of the supreme court's standing committee on the                                                                                                                                                                                                                                                                                                                                      

  Children in Need of Aid and Delinquency Rules, as well as the e-mails sent by the area court                                                                                                                                                                                                                                                                                                                                                   

  administrators to Justice Morgan Christen which are contained in the Court Rules Attorney's                                                                                                                                                                                                                                                                                                                         

  file for Supreme Court Order No. 1723 (March 5, 2010).                                                                                                                                                                                                                                          

                                                                                                                                                                                                                            - 5 -                                                                                                                                                                                                                     2525

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


                     acquiescence in a non-jury trial; and (4) [whether] the record  


                     demonstrate[s] that the [State] would suffer no prejudice on  


                     account of the late request for a jury trial.  


Id.  at 647.  


                     Turning to the first two criteria - whether the request for jury trial was  


reasonably prompt, and whether it was made far enough in advance that it would pose  


no problem for the court - we note that M.H.'s attorney entered her appearance on  


September 24, 2014.  At a pre-trial conference held on November 10, 2014, the defense  


attorney announced that M.H.'s parents had rejected the State's offer of settlement, and  


that  the  case  would  therefore  have  to  be  set  for  trial.                         In  response  to  the  defense  


attorney's announcement,  the superior court put M.H.'s case on the trial call list for  


January 6, 2015.   At this time, the defense attorney did not  tell the court that M.H.  


wanted a jury trial.  


                     When the parties appeared at the trial call on January 6th, both attorneys  


announced  that  they  were  ready  for  trial,  and  the  court  set  the  case  for  a  further  


scheduling hearing on January 8th.  On January 8th, the defense attorney told the court  


that she wanted to file a suppression motion, so the court scheduled a follow-up hearing  


for the next day (January 9th).  Then, when the parties appeared in court on January 9th,  


M.H.'s attorney stated for the first time that M.H. wanted a jury trial.  


                     Given the litigation history of M.H.'s case, this request was not reasonably  


prompt.  Moreover, honoring this request would almost inevitably put pressure on local  


court administrators, and it could well disrupt the court's own processing of the other  


trial call cases.  


                     The third criterion is whether there was reasonable justification for not  


holding M.H.'s attorney to her earlier acquiescence in a bench trial.  

                                                                - 6 -                                                          2525

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


                     Even though the phrase "acquiescence in a bench trial" could be interpreted  


to mean an express agreement to be tried by the court rather than by a jury, that is not  


how the phrase was used in I.J.  The facts of I.J. show that when the court spoke of the  


minor's "acquiescence" in a bench trial, the court simply meant the minor's failure to  


request a jury trial within the time frame specified by the rule.  See id., 182 P.3d at 647.  


                     In  M.H.'s  case,  it  appears  that  the  defense  attorney's  reason  for  not  


requesting a jury trial earlier is that she misunderstood or was unaware of  Delinquency  


Rule 21(a), and that she misunderstood local court procedures.  


                     The defenseattorney told the court that she thought she had requested a jury  


trial earlier.  But there is nothing in the record to support this assertion.  It appears that  


the attorney's memory of the prior proceedings was faulty.  


                     The defense attorney also told the court that she thought M.H.'s case was  


automatically scheduled for a jury trial when the court announced that M.H.'s case would  


be included among the group of cases scheduled for the trial call on January 6th.  But the  


judge explained that he included  all of his trials - both jury trials and bench trials -  


when he compiled his lists for trial calls.   And there is nothing in the record that would  


have led the defense attorney to think otherwise.  


                     Given this record, the superior court could reasonably conclude that the  


defense attorney failed to offer a good justification for allowing her to request a jury for  


the first time on the eve of trial.  


                     The remaining criterion is whether the record demonstrates that the State  


would not be prejudiced by the tardiness of the defense attorney's request for a jury trial.  


The State makes several arguments regarding how a jury trial would have prejudiced the  


prosecutor and the State's witnesses.  It is unclear how much of this asserted prejudice  


is due to the lateness of the defense attorney's request, as opposed to the fact that the  


defense attorney was requesting a jury trial at all.  

                                                               - 7 -                                                          2525

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

                                      But in any event, the question is whether the superior court's decision was                                                                                                                       


an abuse of discretion, given all four of the criteria listed in                                                                                                      I.J.                                                                

                                                                                                                                                                                       We conclude that the  


superior court did  not  abuse its discretion when it denied the defense attorney's late  


request for a jury trial.  


                   M.H.'s argument  that the State failed to present adequate evidence to  


                   corroborate the testimony of his accomplice  


                                      AS 12.45.020 states that a conviction can not rest on the testimony of an  


accomplice unless the accomplice's testimony "is corroborated by other evidence that  


tends to connect the defendant with the commission of the crime".  The statute further  


provides that corroboration "is not sufficient if it merely shows the commission of the  


crime or the circumstances of [its] commission."  


                                      At M.H.'s trial, the State's case included the testimony of another minor,  


V.H., who testified that he and M.H. jointly committed the charged theft.                                                                                                                                              V.H. was  


therefore an "accomplice" within the meaning of AS 12.45.020,  and the State was  


required to corroborate his testimony.   On appeal, M.H. argues that the trial evidence  


failed to adequately corroborate V.H.'s testimony.  

         2         See Booth v. State                                , 251 P.3d 369, 373 (Alaska App. 2011):                                                  

                   The "abuse of discretion" standard applies to situations where (a) the law does not                                                                                                                           

          specify a particular                                  "right" answer                             or   response   to   the   situation,   but   instead only   

          specifies the factors or criteria that a judge should consider, and (b) reasonable judges,                                                                                                                   

          given the                 same   facts   and applying                                           the   correct   criteria,   might   come   to   differing  

          conclusions   about   how to                                            deal   with the                        problem.     In other                                words,   the   "abuse   of  

          discretion" standard of review applies to situations where the law allows or requires                                                                                                                     

         the judge to exercise discretion - to reach a decision by considering and weighing                                                                                                                       

         various factors, and then doing what seems most fair under the circumstances.                                                                                          

                                                                                                                    - 8 -                                                                                                              2525

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

                       Alaska         appellate          cases        interpreting           AS       12.45.020            hold       that      the  

corroborating evidence does not need to be viewed in isolation from the accomplice's                                           

testimony.   Rather, the corroborating evidence should be viewed in conjunction with the                                                         


accomplice's testimony,                                                                                                                         

                                             and the corroborating evidence  (and all inferences that can  


reasonably  be  drawn  from  it)  should  be  viewed  in  the  light  most  favorable  to  the  

              4  The statutory requirement of corroboration is satisfied "when the corroborating  


evidence tends to induce ... a rational belief that the accomplice was speaking the truth  



when he implicated the defendant in the criminal event."  


                       Although  the  statute  declares  that  the  corroborating  evidence  is  not  


sufficient "if it merely shows the commission of the crime or the circumstances of [its]  


commission", the corroborating evidence does not need to independently establish the  



defendant's guilt, nor does it need to corroborate every element of the offense.                                                               It is  


sufficient  if  the  corroborating  evidence  "tends  to  connect  the  defendant  with  the  


commission of the crime in such a way as may reasonably satisfy the jury  that the  



witness, who must be corroborated, is telling the truth."  


                       M.H.  was  accused  of  stealing  property  from  a  school  locker  room.  


According to V.H.'s testimony, he and M.H. went to the school to pick up some shoes.  


After the two boys entered the locker room, V.H. used the bathroom, and then he and  


      3    Pulakis  v.  State,  476 P             .2d  474,  476 (  Alaska   1970).  

      4     See S    ilvernail  v.  State,  777  P.2d   1169,   1172 (  Alaska  App.   1989).  

      5    Pulakis  v.  State,  476  P.2d  474,  476  (Alaska  1970),  quoting Dimmick  v. State, 473  P.2d  

616,  617 (  Alaska   1970).   

      6     See  Silvernail  v.  State,  777  P.2d  1169,  1172  (Alaska  App.  1989);  Brown  v.  State,  693  

P.2d  324,  329 (  Alaska  App.   1984).  

      7     Christy   v.   United   States ,   17   Alaska   107,   261   F.2d   357,   359-60   (9th   Cir.   1958)  

(original  citations  omitted).   

                                                                       - 9 -                                                                  2525

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

 M.H.   started looking through the lockers.                                                V.H. testified that he found an iPod and an                                               

 iPhone in the pockets of some pants.                                               M.H. took the iPod and V.H. took the iPhone,                                          


which the boys apparently planned to "jailbreak".                                                               


                             Upon leaving the school, the two boys first went to V.H.'s house, and then  


they went to M.H.'s house because M.H. had a computer that they were going to use to  


jailbreak the iPhone.  But they were unable to alter the iPhone, so V.H. left the iPhone  


with M.H.  At trial, V.H. testified that he thought M.H. had thrown these items away.  


                             To  corroborate  V.H.'s  testimony,  the  State  presented  school  security  


 footage which showed M.H. and V.H. entering the school, going to the locker room, and  


 spending severalminutes there. In addition, the State introduced a written account of the  


 incident that M.H. furnished to the school safety coordinator.   In this statement, M.H.  


 declared that he was present in the locker room with V.H., and he watched V.H. steal  


various items from the lockers, but he (M.H.) did not participate in the theft:  



                                            I came to school to get my school stuff because I had  


                             missed a couple of days before the break so I went into the  


                             locker room to get it and [V.H.] was with me.  I got my stuff  


                             and he was looking through all the lockers and then he told  


                             me he found a phone and I didn't really say anything about  


                             which I should of.                           He also  stole more than one thing he  


                              [took] somebodys glasses, shoes, a backpack and some other  


                             stuff.   I didn't steal anything and I don't have anything that  


                             is stolen.  I was just with him and I should of said something  


                             about it but I didn't.  I don't really know what he did with the  

        8      The term "jailbreaking" refers to the removal of the software restrictions imposed by                                                                                   

 iOS (the Apple operating system) on devices such as the iPhone and the iPad.                                                                                    Jailbreaking  

 allows   a user to access the root level of the iOS file system and its file manager - thus                                                                                      

 enabling the               user   to   download and install                              applications   and other                           software   not   available  

through the official Apple App Store.                           



                                                                                        -  10 -                                                                                   2525

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


                    stuff  he  stole but a lot of the stuff he has he doesn't have  


                    anymore so I'm guessing he sold them and I had nothing to  


                    do with that also.  


                    Turning  to  the  question  of  whether  this  corroborating  evidence  was  


sufficient to meet the requirements of AS 12.45.020, we note that the facts of M.H.'s  


case are similar to the facts of Baker v. State, 905 P.2d 479 (Alaska App. 1995).  


                    The defendant in Baker was accused of being one of the three people who  


robbed a pizza delivery  man.                    Two of the robbers testified that Baker was the third  


participant in this crime.  The State's corroborating evidence showed that three people  


participated in the robbery, that Baker was seen both before and after the crime in the  


company of the other two robbers, and that  Baker and the other robbers had several  


boxes of pizza after the robbery.  This Court held that this corroborating evidence "was  


sufficient to support a rational belief that [the two accomplices] were speaking the truth  


when they implicated Baker in the robbery."  905 P.2d at 491.  


                    We  likewise  find  that  the  corroborating evidence  in  M.H.'s  case  was  


sufficient to support a rational belief that V.H. was speaking the truth when he implicated  


M.H. in the theft.  



                    The judgement of the superior court is AFFIRMED.  

                                                             -  11 -                                                         2525

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