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

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.


Lloyd James Luke v State of Alaska (7/24/2020) ap-2671

Lloyd James Luke v State of Alaska (7/24/2020) ap-2671

                                                                   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  



LLOYD JAMES LUKE,  

                                                                                      Court of Appeals No. A-13042  

                                              Appellant,                           Trial Court No. 4FA-16-02072 CR  



                                  v.  

                                                                                                     O P I N I O N  

STATE OF ALASKA,  



                                              Appellee.                                   No. 2671 - July 24, 2020  



                       Appe                    

                                al  from  the  Superior  Court,  Fourth  Judicial  District,  

                       Fairbanks, Douglas L. Blankenship, Judge.  



                       Appearances: Carolyn Perkins, Law Office of Carolyn Perkins,  

                                                                                                    

                       Salt Lake City, Utah, under contract with the Office of Public  

                                                                                                                     

                       Advocacy, Anchorage, for the Appellant.  Andrew P. Baldock,  

                                                                                              

                       Assistant District Attorney, Fairbanks (opening brief), Patricia  

                       L.  Haines,  Assistant  Attorney  General,  Office  of  Criminal  

                                                                                                               

                       Appeals,   Anchorage   (supplemental   brief),   and   Kevin   G.  

                       Clarkson, Attorney General, Juneau, for the Appellee.  



                       Before:   Allard, Chief Judge, and Wollenberg and Harbison,  

                                                               

                       Judges.  



                       Judge ALLARD.  


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

                      Lloyd James Luke was convicted of third-degree assault and first-degree     



                               1  

witness tampering.                                                                                                                       

                                   On appeal, Luke argues that there was insufficient evidence to  



                                                                           

support his conviction for witness tampering.  



                                                                                                                                       

                      When we review a claim of insufficiency, we are required to view the  



                                                                                                                                     

evidence - and all reasonable inferences to be drawn from that evidence - in the light  



                                                                  2  

                                                                                                                                     

most favorable to upholding the verdict.                             Viewing the evidence in this light, we then  



                                                                                                                           

determine whether a fair-minded juror could reasonably find proof beyond a reasonable  



                                                                                3  

                                                                                   

doubt on all the essential elements of the offense. 



                                                                                                                                         

                      In the current case, the prosecution's theory was that Luke was guilty of  



                                                                                                                                       

witness tampering because he had attempted to induce a witness - the victim of the  



                                                                                                                    4  

                                                                                                                                         

assault - to "unlawfully withhold testimony in an official proceeding."                                                In support of  



                                                                                                                                         

this theory, the prosecution introduced a letter that Luke sent to his girlfriend while he  



                                                              

was in jail.  In the letter, Luke wrote:  



                                                                                                                  

                      [I]t would help my case a whole lot if you could tell your ex- 

                                                                                                                 

                      boyfriend [the victim of the assault] to ignore the D.A.'s and  

                                                                                                                

                      the court's calls . . . .  I don't want to get maxed out for this,  

                                                                                                               

                      ya know?  If he does though everybody already knows what  

                                                                               

                      will happen at the end of the day.  



      1    AS  11.41.220(a)(5)  and  AS  11.56.540(a)(1),  respectively.     We  note  that  Luke's  



judgment   mistakenly   states   that   Luke   was   convicted   of   witness   tampering   under  

AS 11.56.540(a)(2) ("knowingly induces or attempts to induce a witness to . . . be absent   

from a judicial proceeding to which the witness has been summoned").  But that is not the  

theory that was argued to the jury or the theory on which the jury was instructed.   



      2    See Eide v. State, 168 P.3d 499, 500 (Alaska App. 2007).  



      3    Id. at 500-01.  



      4    See AS 11.56.540(a)(1).  



                                                                  - 2 -                                                             2671
  


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

The prosecutor argued that it was reasonable to infer from this letter that Luke was                                                                    



attempting to induce the victim to avoid testifying by ignoring calls from the district                                                            



                                           5  

attorney and the courts.                       



                                                                                                                                                     

                         The question for this Court is whether attempting to tell a witness to ignore  



                                                                                                                                                             

calls  from the district attorney  and  the courts constitutes "attempt[ing] to  induce a  



                                                                                                                                               

witness to . . . unlawfully withhold testimony in an official proceeding."  We conclude  



                              

that it does not.  



                                                                                                                                                 

                         As  we  have  previously  discussed  in  Rantala  v.  State,  "[t]he  witness  



                                                                                                                                                                  

tampering statute does not forbid attempts to induce a witness to 'withhold testimony'.  



                                                                                                                                              

Rather,  the  statute  forbids  attempts  to  induce  a  witness  to  'unlawfully  withhold  



                       6  

testimony'."                                                                                                                           

                           In Rantala, the defendant was convicted based on several conversations  



                                                                                                                                                   

he had with a witness, wherein he stated that the witness did not have to testify against  



                                                                                                                                                          

him at all unless she was subpoenaed to appear before the grand jury; he urged the  



                                                                                                                                                          

witness to tell authorities that she did not wish to pursue the prosecution against him; and  



                                                                                                                                                   

he suggested that if the witness did decide to testify at the grand jury, she should answer  



      5     Here is the relevant portion of the prosecutor's closing argument:  



                  He wrote a letter to [his girlfriend]. And in that letter, he tampered with  

                                                                                 

                   a witness.  He attempted to get [his girlfriend] to contact [the victim],  

                   and told him, in essence, don't testify.  Don't listen to the DAs, don't  

                                                                                         

                   listen to the courts.  That's going to help me out in my case.  And we're  

                                                                                                                            

                   going to know  what's  going to happen if  he does testify.   Witness  

                                                                                                                               

                  tampering.  



      6     Rantala  v.  State,  216  P.3d  550,  555  (Alaska  App.  2009)  (emphasis  in  original).  

                                                                                 

Alaska Statute 11.56.540 (tampering with a witness in the first degree) provides:  

            (a) A person commits the crime of tampering with a witness in the first degree if the  

                                                                                                                                                           

            person knowingly induces or attempts to induce a witness to  

                   (1) testify falsely, offer misleading testimony, or unlawfully withhold testimony  

                                      

                  in an official proceeding; or  

                   (2) be absent from a judicial proceeding to which the witness has been summoned.  

                                                    



                                                                           - 3 -                                                                      2671
  


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

                                                                                7  

as simply and concisely as possible.                                               We concluded that none of these acts were an                                                      



attempt to induce the witness to                                   unlawfully  withhold testimony because each of the three                                                     



acts suggested by the defendant - not testifying unless subpoenaed, asking prosecutors                                                                            

not to pursue the charges, and providing short (but truthful) answers - were lawful.                                                                                                  8  



                                                                                                                                                                                      

                             The same is true here.  Under Alaska law, it is unlawful for a person to  



                                                                                                                                                                    9 

                                                                                                                                                        

attempt to induce a witness to avoid process through use of a threat or bribe.   But it is  



                                                                                                                                                                                

not unlawful if the person simply asks the witness to avoid process.  This is made clear  



                                                                                                                                                                                   

by the legislative commentary to AS 11.56.540, which expressly declares that it is not  



       7      Id. at 555-58.  



       8      Id. ; see also Barber v. State                               , 386 P.3d 1254, 1258, 1264-65 (Alaska App. 2016)  



(holding that the defendant did not commit the crime of witness tampering when he asked                                                                     

his friend not to tell the police that he had shot at a truck).  



       9      Alaska Statute 11.56.510 (interference with official proceedings) provides:  



               (a) A person commits the crime of interference with official proceedings if the person  

                                                                                                                                                                      

                      (1) uses force on anyone, damages the property of anyone, or threatens anyone  

                                                                                                                                

                      with intent to  

                             (A) improperly influence a witness or otherwise influence the testimony of a  

                             witness;  

                             (B) influence a juror's vote, opinion, decision, or other action as a juror;  

                             (C) retaliate against a witness or juror because of participation by the witness  

                                                                                                                                                                    

                             or juror in an official proceeding; or  

                             (D) otherwise affect the outcome of an official proceeding; or  

                      (2) confers, offers to confer, or agrees to confer a benefit  

                             (A) upon a witness with intent to improperly influence that witness; or  

                             (B) upon a juror with intent to influence the juror's vote, opinion, decision, or  

                             other  action  as  a  juror  or  otherwise  affect  the  outcome  of  an  official  

                                                                                                                                                                   

                             proceeding.  



                                                                                       - 4 -                                                                                   2671
  


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

a   violation   of   the   witness   tampering   statute   for   a   person   to   attempt   to   induce   a  



                                                              10  

prospective witness to avoid process.                                                             

                                                                   This commentary states:  



                                                                             

                      While  AS  11.56.510  [i.e.,  the  "Interference with Official  

                                                                                                                      

                      Proceedings" statute] makes it unlawful to use a bribe or  

                                                                                                           

                      threat       to     induce        a    witness         to     avoid        legal      process,  

                                                                                                                   

                      AS  11.56.540  does  not  bar  an  attempt  to  achieve  that  

                                                                                                                      

                      objective by persuasion or argument. A defense attorney, for  

                                                                                                                     

                      example,  would  not  be  prohibited  from  attempting  by  

                                                                                                   

                      persuasion or pleading to induce a witness to avoid [service  



                                                                           [11]  

                                                                                 

                      of] process by leaving the state. 



                                                                                                                                           

                      The parties' initial briefs did not address this legislative commentary.  We  



                                                                                                                                           

requested supplemental briefing so that the parties could do so. In its brief, the State did  



                                                                                                                                      

not explain how its original theory of guilt - that asking a prospective witness to ignore  



                                                                                                                                       

phone calls from a prosecutor or a court violates AS 11.56.540 - was defensible given  



                                                                                                                                 

the commentary that asking a prospective witness to leave the state to avoid a subpoena  



                                               

does not violate the statute.  



                                                                                                                                            

                      Instead, the State put forth a new theory of guilt that was never argued by  



                                                                                                                                

the prosecutor at trial.  The State now argues that Luke was guilty of witness tampering  



                                                                                                                                     

because of his additional statement:  "I don't want to get maxed out for this, ya know?  



                                                                                                                                             

If he [the victim] does though everybody already knows what will happen at the end of  



                                                                                                                                          

the day."  The State argues that these two additional sentences demonstrate Luke was  



                                                                                                                                          

doing more than asking the victim to ignore phones calls; rather, the State asserts that  



      10   Commentary to Alaska's Revised Criminal Code, 1978 Senate Journal Supp. No. 47   



(June  12),  at  81-82.    Similar  commentary   can  be  found  in  the  Alaska  Criminal   Code  

Revision, Tentative Draft, Part IV, at 59-60 (1970).  



      11   Commentary to Alaska's Revised Criminal Code, 1978 Senate Journal Supp. No. 47  

                                  

(June 12), at 81-82.  



                                                                    - 5 -                                                              2671
  


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

Luke was making a threat that the victim would (in the words of the State) "suffer the                                                                                



consequences" if he testified against Luke in an official proceeding.                                           



                          When we assess the sufficiency of the evidence to support a criminal                                                             



conviction, we must view the evidence in the light most favorable to sustaining the jury's                                                                       



               12  

                                                                                                                                                     

verdict.             "But in fulfilling this obligation, we must confine ourselves to reasonable  



                                                                13  

                                                                     

interpretations of the evidence." 



                                                                                                                                                                  

                          ViewingLuke's words as awhole,thereasonableinterpretationisthatLuke  



                                                                                                                                                                  

was telling his girlfriend that he would receive a serious sentence (i.e., "get maxed out")  



                                                                                                                                                                

if the victim decided to answer the prosecutor's and the court's phone calls and testify  



                                                                                                                                                               

against Luke.   This interpretation is bolstered by the remainder of the letter, which  



                                                                                                                                                                      

concerned not threats against potential witnesses, but Luke's boredom in prison and his  



                                                                                                                                                               

desire to get out and see his girlfriend.   It is unreasonable to interpret Luke's words  



                                                                                                                                                              

(written to his girlfriend, not to the victim) as a threat to the victim that he would "suffer  



                                                                                                                                                                     

the consequences" if he testified against Luke in an official proceeding.  Indeed, the  



                                                                                                                                     

prosecutor never argued this interpretation of the letter to the jury.  



                                                                                                                                                           

                          We  therefore  REVERSE  Luke's  conviction  for  first-degree  witness  



                                                                                                                                                                     

tampering.  We note that Luke also argues on appeal that his sentence is excessive.  We  



                                                                                                                                             

do not address this claim because Luke will need to be resentenced on remand.  



       12    Rantala, 216 P.3d at 562.  



       13    Id. (emphasis in original).  



                                                                                 - 6 -                                                                           2671
  

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


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

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC