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Charles Fenning Akelkok v State of Alaska (10/9/2020) ap-2681

Charles Fenning Akelkok v State of Alaska (10/9/2020) ap-2681

                                                                             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                                             



CHARLES  AKELKOK,  

                                                                                                   Court  of  Appeals  No.  A-12843  

                                                    Appellant,                                  Trial Court  No.  3DI-16-00125  CR  



                                       v.  

                                                                                                                   O P I N I O N  

                                                                                                                                         

STATE OF ALASKA,  

               



                                                    Appellee.                                       No. 2681 - October 9, 2020  

                                                                                                                                                  



                          Appeal   from   the   Superior   Court,   Third   Judicial   District,  

                                                     

                                                                                                             

                          Dillingham, Michael R. Spaan, Judge.  

                                                                                   



                          Appearances:   Megan R. Webb, Assistant  Public Defender, and  

                                                                                                                                         

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

                                                                                                                                                 

                          Donald   Soderstrom,   Assistant   Attorney  General,   Office   of  

                                                                                                                                          

                          Criminal  Appeals,  Anchorage,  and  Jahna  Lindemuth,  Attorney  

                                                                                                                               

                          General, Juneau, for the Appellee.  

                                                                                         



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

                                                                                                                             

                          Judges.  

                                         



                          Judge WOLLENBERG.  

                                      



                          Following  a  jury  trial,  Charles  Akelkok  was  convicted  of  third-degree  

                                                                                                                                                 



assault  for  attacking  his  daughter,  Alicia  Akelkok,  after  she   and  Annie  Sergie  -  

                                                                                                                                                                   


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

                                                                                                                       1  

                                                                                                                                          

Akelkok's then-girlfriend - found Akelkok in bed with another woman.                                                      Akelkok now  



                                                                                                                                   

appeals his conviction, arguing that the trial court coerced Sergie's testimony in violation  



                                             

of his right to due process.  



                                                                                                                                           

                      For the reasons explained  in  this opinion, we reject Akelkok's claim, and  



                       

we affirm his conviction.  



                                                

            Underlying facts and proceedings  



                                                                                                                                            

                       On  June  2,  2016,  a  group  of  people,  including  Charles  Akelkok  and  his  



                                                                                                                                                  

daughter,  Alicia  Akelkok, were  drinking in Thresa  Askoak's  apartment in Dillingham.  



                                                                                                                                   

Annie Sergie (Akelkok's girlfriend) was drinking in another apartment nearby.  



                                                                                                                                     

                      At some point, Alicia brought Sergie to Askoak's apartment.  Alicia wanted  



                                                                                                                                 

to show Sergie that Akelkok was cheating on her.   After walking through the apartment  



                                                                                                                      

to the bedroom, Alicia and Sergie found Akelkok in bed with Askoak.  



                                                                                                                                  

                      When  Alicia  confronted  her  father  from  the  bedroom doorway,  Akelkok  



                                                                                                                                                  

jumped  out  of  bed  and  pushed  Alicia  into  the  living  room,  and  Alicia  fell  backward.  



                                                                                                                                     

Akelkok  climbed  on  top  of  Alicia  and  punched  her  in  the  face  several  times  before  



                                                      

putting his hand near her throat.  



                                                                                                                                          

                       Sergie's  son,  Jessie  Sergie,  lived  in  the  apartment  above  Askoak's  and  



                                                                                                                                          

heard his mother yell his name.   Jessie went downstairs to Askoak's apartment and saw  



                                                                                                                                             

Akelkok  on top  of Alicia  with his  hand  near her neck.                                     Jessie  pulled  Akelkok  off of  



                                                                                                                              

Alicia, and Akelkok ran back into the bedroom and jumped out the window.  



                                                                                                                               

                      When the police arrived, they searched for Akelkok behind the  apartment  



                                                                                                                                         

building and found him lying on the ground a short distance away.   Akelkok had a "tiny  



                                                                                                                                     

bloody  nose"  and blood  around his  mouth.                              He  was  also intoxicated.                   He  had  slurred  



      1    AS 11.41.220(a)(5).  

                  



                                                                    - 2 -                                                                2681
  


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

speech,   red   watery eyes, and a "poor, unsteady, and swaying balance"; he also smelled                                                                                                      



of alcohol.                



                                Alicia   had   swelling and bruises                                              on her face                  and some                 marks   "where   the  



neck meets [the] collarbone area."                                 



                                A   grand   jury   indicted   Akelkok   on two                                                  counts   of assault -                              one   count of  



second-degree assault (for intending to cause physical injury to Alicia by strangulation)                                                                                        



and one count of third-degree assault (for recklessly causing physical injury to Alicia -                                                                                                                  



i.e.,   committing   a   fourth-degree   assault  -   having twice                                                                        been   previously   convicted   of  



                                                                                                                2  

similar offenses within the preceding ten years).                                                                    



                                                                                                                                                                                          

                                Akelkok's  case  proceeded  to  a  jury  trial.                                                              Several  witnesses  testified:  



                                                                                                                                                                                                

Thresa  Askoak, Annie Sergie, Alicia Akelkok, Jessie Sergie, Alicia Akelkok's mother,  



                                                                                  

and the responding police officer.  



                                                                                                                                                                                                    

                                The jury acquitted Akelkok of second-degree assault.   But the jury found  



                                                                                                                                                                                      

Akelkok  guilty  of  fourth-degree  assault, and in a  bifurcated portion of the  proceeding,  



                                                                                                                                                                                                       

found  that  Akelkok  had  two  prior  qualifying convictions.                                                                                   Accordingly,  Akelkok  was  



                                                                                                        

convicted of third-degree recidivist assault.  



                                                                                            

                The facts surrounding Sergie's testimony  



                                                                                                                                                                                                         

                                The central question in this appeal is whether the trial court's actions had  



                                                                                                                                                                                                

a  coercive effect on Annie Sergie's testimony and therefore violated Akelkok's right to  



                                                                                                                                                                                              

due  process.                         Accordingly,  we  will  describe  the  background  facts  regarding  Sergie's  



                                             

testimony in some detail.  



                                                                                                                                                                                                      

                                Following  Akelkok's   arrest,  the  State  initially  charged  Akelkok  with  



                                                                                                                                                                                                  

assaulting  Sergie.                             However,  the  State  decided  not  to  pursue  this  charge  after  Sergie  



        2       AS 11.41.210(a)(1) and AS 11.41.220(a)(5), respectively.  

                                                                                                                      



                                                                                                   -  3 -                                                                                              2681
  


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

failed to appear at the grand jury proceeding.  Based on her failure to appear at the grand  

                                                                                                                                    



jury proceeding, the court issued a warrant for Sergie's arrest.   At a subsequent hearing,  

                                                                                                              



the court quashed the warrant at the prosecutor's request but admonished Sergie that she  

                                                                                                                                 



needed to appear at grand jury proceedings if subpoenaed.  

                                                                                              



                      The State later subpoenaed Sergie as a witness for Akelkok's trial.   On the  

                                                                                                                                        



first day of trial, before  jury  selection, the  prosecutor announced that a  colleague  had  

                                                                                                                                       



seen Sergie at court that morning and reported that Sergie was under the influence.   The  

                                                                                                                                      



prosecutor advised the judge that Sergie was supposed to return to court later in the day  

                                                                                                                                       



and  asked the judge to admonish Sergie that she needed to be sober when she appeared  

                                                                                                                              



in court the next day to testify in Akelkok's case.  The trial court replied, "[I]f she shows  

                                                                                                                                   



up  tomorrow  when  she's  supposed  to  testify  and  she's  wobbling  around,  these  guys  

                                                                                                                                     



 [Judicial Services] have a Breathalyzer; if she's drunk, we'll take her away."  

                                                                                                               



                      The next day, before jury selection was completed, the prosecutor informed  

                                                                                                                               



the court that Sergie had failed to appear.  In open court, in the presence of both Akelkok  

                                                                                                                               



and his attorney, the prosecutor asked the court to issue a civil bench warrant for Sergie.  

                                                                                                                                              



The  prosecutor  stated  that  she  had  spoken  the  previous  evening  with  Renee  Roque,  

                                                                                                                                 



Alicia Akelkok's mother, and Roque reported that Sergie did not intend to return to court  

                                                                                                                                     



under subpoena.              The  prosecutor left Sergie  "a  couple  of messages"  instructing her to  

                                                                                                                                          



report  to  court  under  her  subpoena,  and  warning  her  that  if  she  failed  to  appear,  the  

                                                                                                                                        



prosecutor would request a warrant.  

                                                           



                      The judge issued the warrant but declared that he would not hold Sergie in  

                                                                                                                                          



jail once she was brought to court:   "[W]hen she is found [and] brought before me .  .  .  

                                                                                                                                            



I will  assure  that  she  stays  here; I'm  not  going to  keep  her  in  jail,  but  I do  want  her  

                                                                                                                               



brought before the court."  

                                           



                                                                  - 4 -                                                              2681
  


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

                     Later  that  morning,  the  prosecutor  informed  the  court  that   the  police  

                                                                                                                                 



thought that they had found Sergie hiding in a home.   The police were at the door of the  

                                                                                                                                       



home, trying to contact the homeowner so that they could enter.  

                                                                                                     



                      The      parties      completed          jury      selection   and          proceeded          with   opening  

                                                                                                                              



statements.  The State presented its first witness, Thresa Askoak.  

                                                                                                         



                     At about 2:38 p.m., Sergie was  brought into court.   The prosecutor stated  

                                                                                                                                  



that  she  wished  to  present  Sergie's  testimony  next,  but  she  first  wanted  to  determine  

                                                                                                                            



whether Sergie was under the influence.  

                                                                 



                      Over the next twenty-two minutes, the parties debated whether Sergie could  

                                                                                                                                   



testify that day and, if not, how best to secure her testimony for the following day.  

                                                                                                                                  



                      Outside   the  presence  of  the  jury,  Sergie  admitted  that  she  had  been  

                                                                                                                                    



drinking, and a portable breath test indicated that she had a breath alcohol level of .248  

                                                                                                                                     



percent.       Because  of her high breath alcohol level,  the  trial  court told  Sergie  that she  

                                                                                                                                      



could not testify  that day  and  would  have  to  come  back  the  next morning.                                           The  court  

                                                                                                                                    



warned Sergie  that  she needed to appear, and Sergie promised that she would show up  

                                                                                                                                        



the next morning, sober and ready to testify.  

                                                           



                     At that point, the prosecutor interjected and asked that Sergie be taken into  

                                                                                                                                      



custody.  The prosecutor understood the court's reluctance to incarcerate Sergie.  But the  

                                                                                                                                 



prosecutor  stated  that  Sergie  had  already  been  admonished,  following  the  grand  jury  

                                                                                                                                     



proceeding,  "on  the  importance  of  showing  up  under  subpoena,"  and  that  the  officers  

                                                                                                                                



who tracked Sergie down that day were "confident that they w[ould] not be able to find  

                                                                                                                                      



her again."  

                    



                     According  to  the  prosecutor,   Sergie  had  "fled  [Dillingham]   to  avoid  

                                                                                                                                  



service" at one point prior to trial and was staying in Anchorage with a family member.  

                                                                                                                              



After  the  Anchorage  police  "got  a  lead,"  they  found  Sergie.                                         Sergie  returned  to  

                                                                                                                                        



Dillingham, but she refused to tell the prosecution where she was living.  The prosecutor  

                                                                                                                           



                                                                  -  5 -                                                            2681
  


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

asserted   that,   in addition to                   telling   Roque   that  she   would   not  appear   at  trial  that  day,  



Sergie had also apparently posted on Facebook that she did not intend to testify.                                                               



                        In   response,   Akelkok's   attorney   argued   that,   under   the   Alaska   Supreme  



                                                                     3  

Court's   decision   in   Raphael  v.   State ,                                                                                                        

                                                                        the  court  could  not  jail  Sergie  to  ensure  her  



                                                                                                                                                       

appearance.   The court agreed with defense counsel that Raphael  applied and stated that  



                                                                                                                                                  

it  would  not  incarcerate  Sergie.                             (As  we  explain  later  in  the  opinion,   this  broad  



                                                                                                                                                         

interpretation  of  Raphael  is  incorrect; a  court  is  not  flatly  prohibited  from relying  on  



                                                                                                                       

incarceration  as  a  "remedial  tool"  when  attempting  to  secure  a  recalcitrant  witness's  



                                                                                                                                                     

testimony, so  long as  the  witness  is  afforded  due  process  and the  court acts  in  a  non- 



                              4 

                 

coercive manner. )  



                                                                                                                                               

                        Because of the court's reluctance to jail Sergie, the court began to consider  



                                                                                                                                            

other options to help ensure Sergie's appearance the following day.  The court attempted  



                                                                                                                                                           

to  obtain  an  address  or phone  number for Sergie, but Sergie  was  unable  to  provide  a  



                                                                                                                                  

specific address, and she did not have a cell phone.  The court asked the judicial service  



                                                                                                                                                 

officers whether they had an electronic monitoring device that could be placed on Sergie,  



                               

but they did not.  



                                                                                                                                                      

                        When Sergie promised to return the next morning, the court asked her how  



                                                                                                                                                      

impaired she felt, noting that she had a high breath alcohol level.  Sergie responded, "I'm  



              

good."  



                                                                                                                                                         

                        At that point, the prosecutor again interjected.  The prosecutor informed the  



                                                                                                                                             

court that Sergie had "a bowl of heroin" when she was arrested by the police.   Although  



                                                                                                                                                               

the State had not yet filed a criminal charge, the prosecutor voiced her intention to do so.  



      3     Raphael v. State            , 994 P.2d 1004 (Alaska 2000).
            



      4     Id. at 1010; see also In re Curda, 49 P.3d 255, 258 & n.6 (Alaska 2002).
  

                                                                                                                             



                                                                          -  6 -                                                                     2681
  


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

                           The court acknowledged that, due to a recent change in the law, possession                                                      



of heroin was not a "jailable offense," but stated that it needed "some way to assure her                                                                                 

appearance   if   she's   charged."5                               The  court  therefore  ordered  that  Sergie  be  taken  into  

                                                                                                                                                                        



custody.  Akelkok's attorney strongly objected to this procedure.  

                                                                                                            



                           Sergie  was  taken  into  custody  at  approximately  2:48  p.m.,  about  ten  

                                                                                                                                                           



minutes after she first appeared.  

                                                                 



                           However,  just  minutes  later,  the  court  -  seemingly  swayed  by  defense  

                                                                                                                                                                



counsel's continued objections - changed its mind and asked a Judicial Services officer  

                                                                                                                                                                   



to  bring  Sergie  back  to  the  courtroom  for  a  competency  inquiry.                                                                 The  court  engaged  

                                                                                                                                                   



Sergie  in  a  colloquy  about  her  ability  to  testify  and  her  willingness  to  tell  the  truth.  

                                                                                                                                                                                  



Following the colloquy, the trial court found that Sergie was capable of  communicating  

                                                                                                                                                 



and understanding her duty to tell the truth and that she was competent to testify that day.  

                                                                                                                                                                                  



                           The jury returned to the courtroom at about 3:00 p.m., twenty-two minutes  

                                                                                                                                                                 



after the court first addressed Sergie.  Akelkok's trial proceeded, and Sergie testified.  

                                                                                                                                                         



                           During  Sergie's  testimony,  the  court  intervened  several  times  to  address  

                                                                                                                                                                



Sergie's behavior - e.g., to admonish Sergie not to curse or use foul language, to urge  

                                                                                                                                                                       



Sergie  to  provide  audible  responses,  and  to  direct  Sergie  to  answer  the  attorneys'  

                                                                                                                                                           



questions.  



       5      In  2016,  the  legislature  reclassified  the  simple  possession  of  heroin  as  a  class  A  

                                                                                                                                                                            

misdemeanor.  Compare former AS 11.71.040(a)(3), (d) (2015) with AS 11.71.050(a)(4), (b)  

                                                                                                                                                                           

(post-July 2016); SLA 2016, ch. 36,  47; see also AS 11.71.140(d)(11) (heroin is a Schedule  

                                                                                                                                                               

 1A controlled substance).  At the time of trial in this case, the law precluded a court  from  

                                                                                                                                                                      

imposing  an  active  term  of  imprisonment  for  this  offense,  unless  the  defendant  had  been  

                                                                                                                                                                       

previously  convicted  more  than  once  for   controlled  substance  misconduct.                                                                                 Former  

                                                                                                                                                                

AS  12.55.135(n)  (version  effective  July  2016);  SLA  2016,  ch.  36,    93,  188.                                                                                 The  

                                                                                                                                                                        

legislature later repealed this portion of the sentencing statute.  FSSLA 2019, ch. 4,  138.  

                                                                                                                                                                



                                                                                   -  7 -                                                                              2681
  


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

                                   Sergie's testimony concluded after about a half hour, and the court released                                                                                             



her.   



                  Why    we    conclude    that    the    trial  court  did    not  unduly    coerce    Sergie's  

                  testimony   



                                   On appeal, Akelkok argues that the trial court coerced Sergie's testimony,                                                                                          



and thereby violated Akelkok's right to due process.                                                                                      Although we have some concerns                                   



about  the   manner   in   which   the   trial  court  proceeded,   the   totality   of   the   circumstances  



does   not show that the                                     trial court's   conduct had   a   coercive   effect   on   the   substance   of  



                                                 6  

 Sergie's testimony.                                



                                                                                                                                                                                                                            

                                   The seminal case  on this issue is the Alaska Supreme Court's decision in  



                                             7  

                                                                                                                                                                                                             

Raphael  v.  State .                                In Raphael,  the  prosecutor  alleged  in  an  ex  parte  hearing  that  the  



                                                                                                                                                                                                 

complaining witness, I.W., was intoxicated and expressed  concern that she might not be  



                                                                                                                   8  

                                                                                                                                                                                                                         

sober to testify over the next couple of days.                                                                          Although neither the defense attorney nor  



                                                                                                                                                                                                                    

I.W. was present when the prosecutor presented his concerns to the trial court, the court  



                                                                                                                                                                                                                        

decided  to  incarcerate  I.W.  and  place  her  children  in  protective  custody  pending  her  



                                                                                                                                                                                                                                   

testimony.   Only after the ex parte hearing did the trial court inform I.W. of its decision.  



                                                                                                                                                                                                                       

Despite I.W.'s pleas not to take away her children, the court jailed her and told her that  



         6       See Raphael                    , 994 P.2d at 1008 (recognizing that an appellate court must consider "the                                                                                             



totality of the circumstances surrounding a witness's testimony" to                                                                                                      determine the coercive             

effect  of   the   trial  court's   conduct,   if   any,   on   the   witness's   testimony)   (citing   Arizona   v.  

Fulminante, 499 U.S. 279, 285-88 (1991), and                                                                     Schneckloth v. Bustamonte                                         , 412 U.S.218,                             226  

(1973)).  



         7  

                                                                                                                      

                 Raphael v. State, 994 P.2d 1004 (Alaska 2000).  



         8  

                          

                 Id. at 1006.  



                                                                                                          -  8 -                                                                                                      2681
  


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

                                                                                              9  

                                                                                                                                             

it would "revisit" her custodial status once she testified.                                       I.W. was in jail for three days  



                                 10  

                                      

before she testified. 



                                                                                                                                        

                       Based on the totality of the circumstances, the supreme court held that the  



                                                                                                                                              

trial court's actions - taken without notice to defense counsel or an opportunity for I.W.  



                                                                                                                               11  

                                                                                                                                            

                                                                                                                                    The court  

to be heard - constituted a "near-total denial" of I.W.'s due process rights. 



                                                                                                                                         

further held that the treatment of I.W. had a coercive effect on her testimony and that the  



                                                                                                                                           

use of this coerced testimony against Raphael at his trial violated his due process rights,  



                                                             12  

                                                                  

requiring reversal of his convictions. 



                                                                                                                                     

                       In  particular, the  supreme  court concluded  that the  trial court's  exchange  



                                                                                                                                             

with I.W. - in which the court promised  only to "revisit" I.W.'s custodial status once  



                                                                                                                                      

she  testified  and  expressed  "hope"  that she  would  be  "able  to  get home  and  get [her]  



                                                                                                                              

kids" after trial - "conveyed the strong impression that [her] release from imprisonment  



                                                                                                                                                  13  

                                                                                                                                     

was conditioned not only on whether  she testified, but on how  she testified as well[.]" 



                                                                                                                                                 

According to the supreme court, I.W. could have interpreted the court's statements as "a  



                                                                                                                                               

veiled  threat  to  keep  her  in  jail  if  her  testimony  was  not  pleasing  to  the  court  or  the  

State."14  

                 



                                                                                                                                               

                       The supreme court specifically noted, however, that its holding should not  



                                                                                                                                             

be  read  to  preclude  courts  from relying on incarceration as  a  "remedial tool .  .  .  when  



      9    Id.  



      10   Id.  at 1007.  



      11   Id. at 1008.  

                  



      12   Id. at 1008-11.  

                  



      13   Id. at 1009 (emphasis in original).  

                                                   



      14   Id.  



                                                                      -  9 -                                                                 2681
  


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

                                                                                            15  

                                                                                                                                            

attempting to secure a recalcitrant witness's testimony."                                       The court further clarified that  



                                                                                                                          

a  trial court's  use  of coercive  power against a  recalcitrant witness  does  not invariably  



                                                                                                                   16  

                                                                                                

mean that the witness's later testimony should be deemed involuntary.                                                   



                      But the  supreme  court noted  that, in Raphael's  case, I.W.  had voluntarily  

                                                                                                                                



traveled  to  Bethel  for  trial,  apparently  intending  to  honor  her  subpoena,  and  had  not  

                                                                                                                                            

violated  any court order. 17  

                                                                                                                                           

                                              Moreover, even if I.W. had flatly refused to testify, the trial  



                                                                                                                                 

court  was  authorized  to condition her imprisonment solely  on her continued  refusal to  



                                                                                                     18  

                                                                                                         

testify - not impliedly on her refusal to testify a certain way. 



                                                                                                                                             

                      Akelkok  analogizes  his  case  to  Raphael .                             Akelkok  argues  that,  like  the  



                                                                                                                                              

complaining witness in Raphael, Sergie was denied due  process protections - such as  



                                                                                                                                           

notice, an opportunity to be heard, and the appointment of counsel  -  and  that the trial  



                                                                                                                                      

court created a coercive atmosphere that affected Sergie's testimony.  He argues that the  



                                                                                                                                         

trial  court  failed  to  properly  explain  to  Sergie  what  was  happening,  and  that,  from  



                                                                                                                                             

Sergie's perspective, she had been taken into custody to procure favorable testimony for  



                                             

the State against Akelkok.  



                                                                                                                                            

                      But   the   circumstances   of   this   case   are   markedly   different   from  the  



                                              

circumstances of Raphael .  



                                                                                                                                                

                      As an initial matter, unlike I.W., Sergie had twice failed to appear under a  



                                                                                                                                         

subpoena in this case - once before the grand jury and again at trial.  After Sergie failed  



                                                                                                                                 

to  appear  at  the  grand  jury  proceeding,  she  was  admonished  by  the  court  about  the  



      15   Id.  at 1010.  



      16  

                                                                                                                                        

           Id.; see also  Fely v. State,  2012  WL  1594208, at *4  (Alaska App. May 2, 2012)  

                                                                        

(unpublished) (discussing Raphael, 994 P.2d at 1010).  



      17  

                                                        

           Raphael, 994 P.2d at 1010.  



      18  

                               

           Id. at 1009.  



                                                                    -  10 -                                                               2681
  


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

importance   of   honoring a subpoena.                                                     Despite this admonishment, Sergie again failed to                                                                   



appear at trial, after apparently indicating both to another witness and on Facebook that                                                                                                                  



she did not intend to testify.                                         In the presence of both parties, the court                                                           issued a warrant     



for Sergie                when she                failed   to   appear at trial, and                                     Akelkok   does   not argue                                  that the   trial  



court erred in doing so.                         



                                 Moreover,   once   Sergie   was   brought  into   court  on   the   warrant,   the   court  



faced   a   difficult  dilemma   about   how   best  to   proceed.     If   Sergie   had   been   sober,   she  



would   have   simply   testified   immediately   without   any   discussion   of   incarcerating   her.   



But  Sergie   had   a   high   breath   alcohol   content,   and   the   court  and   both   parties   were  



understandably concerned about having Sergie testify that day.                                                                                          



                                 At  the   same   time,   there   were   legitimate   concerns   as   to   whether   Sergie  

would honor her subpoena                                          for the following day if the court released her.                                                                19  

                                                                                                                                                                                                          

                                                                                                                                                                                         Sergie was  



                                                                                                                                                                                                      

either unable or unwilling to provide a valid address or phone number at which she could  



                                                                                                                                                                                           

be  contacted.                       And  given  the  past difficulties  in locating Sergie, the  police  expressed  



                                                                                       

concern about being able to find her again.  



                                                                                                                                                                                                           

                                Notwithstanding  Sergie's  prior  failures  to  honor  her  subpoenas  and  the  



                                                                                                                                                                                                       

concern  by  the  police  and  the  prosecutor  about  being  able  to  find  Sergie  if  she  were  



                                                                                                                                                                                               

released, the court expressed great hesitation in incarcerating Sergie and instead explored  



                                                                                                                                                                                                          

other  possibilities  -  all  within  the  presence   of   both  parties  -  for  ensuring  her  



                                                                                                                                                                                                  

appearance the following day.   For instance, the court explored the possibility of placing  



                                                                                                                                                                                        

an electronic  monitor on Sergie  as  a  less  restrictive  means  of ensuring her compliance  



                                                                                             

with the subpoena, but no monitor was available.  



         19     See   Fely,   2012   WL 1594208,                                          at  *6   (Unlike   Raphael,   "there   was   good   reason   to  



believe that the witness in question would refuse to honor the court's subpoena.").                                                                          



                                                                                                   -  11 -                                                                                              2681
  


----------------------- Page 12-----------------------

                                  We   acknowledge   that  the   court  ordered   Sergie   to   be   briefly   taken   into  



custody after discovering that she had been found                                                                              in   possession of heroin.                                        We do not          



condone the court's reliance on an unrelated non-jailable offense for which the State had                                                                                                                          



not yet filed   charges   as   a   means   of confining                                                              Sergie   -   an action that appears                                                 to   have  



been   precipitated,   at  least  in   part,   by   the   trial  court's   mistakenly   broad   view   of   the  



limitations set out in                             Raphael .   But the trial court reversed course just minutes later when                                                                                     

persuaded to do so by defense counsel and summoned Sergie back into the courtroom.                                                                                                                                        20  



                                                                                                                                                                                                                       

                                  The court then engaged Sergie in a colloquy regarding her  competency to  



                                                                                                                                                                                                                    

testify - a colloquy that conveyed to Sergie the importance of telling the truth, and did  



                                                                                                                                                                                                                              

not  imply,  as  in  Raphael,  that  Sergie  was  required  to  testify  in  a  particular  manner.  



                                                                                                                                                                                                                    

Among  other questions, the  court asked Sergie  if she  knew the  difference  between the  



                                                                                                                                                                                                                              

truth and  a  lie  and  whether she  understood her duty  to  tell the  truth while  under oath.  



                                                                                                                                                                                                                     

The  court  asked  Sergie  whether  she  would  "be  able  to  understand  and  respond  as  



                                                                                                                                                                                                               

honestly as [she could] to the questions of counsel," and Sergie said, "Yes."  The court  



                                                                                                                                                                                                            

ultimately determined that, despite her breath test result, Sergie was competent to testify  

that day.21  

                           



                                                                                                                                                                                                       

                                  In  short,  the  court's  actions  over  the  course  of  the  twenty-two  minutes  



                                                                                                                                                                                                                       

between Sergie's arrival in court and the start of her testimony were geared primarily at  



                                                                                                                                                                                                                       

ensuring either that Sergie would comply with her subpoena or that she  was  capable of  



         20      Akelkok notes                        that Sergie did not have her own attorney to represent her.                                                                                   But even  



assuming that Sergie was entitled to the immediate                                                                           appointment of an independent attorney        

during the brief period that the court was contemplating whether to release her, imprison her,                                                                                                                     

or allow her to testify,                             see Raphael                   , 994 P.2d at 1009, there is no indication that this violation                                                       

of   Sergie's   rights   affected   the   substance   of   Sergie's   testimony or                                                                                  rendered   her   testimony  

involuntary - thus implicating Akelkok's due process rights.                                                                     



         21  

                                                                                                                                                                                                           

                 Although Akelkok's trial attorney objected to Sergie testifying that day on the ground  

                                                                                                                                                                               

that she was intoxicated, Akelkok does not renew this challenge on appeal.  



                                                                                                       -  12 -                                                                                                   2681
  


----------------------- Page 13-----------------------

testifying   that   day   -   not  that  she   testify   a   certain way.                                                                                                  Indeed,   we   note   that  while  



Akelkok's attorney argued in the trial court that                                                                                           imprisoning   Sergie would be coercive                                               



under  Raphael, she never argued that the court actually coerced Sergie into testifying or                                                                                                                                                         



influenced the substance of Sergie's testimony.                                                                                       



                                      Akelkok argues that the trial court's repeated                                                                                      interjections during Sergie's                           



subsequent testimony conveyed the impression that her freedom was linked to providing                                                                                                                                          



testimony favorable for the State.                                                                Akelkok specifically points                                                        to   the   fact that the trial   



court warned                           Sergie   that she                            might have   to   return the                                           next day, and                            he   argues   that this  



signaled to Sergie that "she was subject to the court's will and could remain incarcerated                                                                                                                             



at least overnight, if not longer."                                                         



                                       But our   review of the                                          record   suggests   that the   court interjected primarily                                                             



as   a   means   of ensuring that the                                                       trial proceeded   in an orderly and                                                              efficient manner, and   



                                                                                                                                     22  

that Sergie   addressed   the   attorneys' questions.                                                                                                                                                                     

                                                                                                                                              The  court  only  suggested that Sergie  



                                                                                                                                                                                                                                   

might  have  to  return  the  following  day  when  she  continued  to  interrupt  the  defense  



                                                                                                                                                                                                                                       

attorney on cross-examination and would not let the attorney finish her questions before  



                                                                                                                                                                                                      

answering.  (We note that Sergie expressed similar frustration with the prosecutor.)  



                                                                                                                                                                                                                                              

                                       For   all   these   reasons,   we   conclude   that,   under   the   totality   of   the  



                                                                                                                                                                                                                                                 

circumstances, the trial court did not coerce Sergie so as to affect the  substance of her  



          22       See Pedersen v. State                                     , 420 P.2d 327, 337-38 (Alaska 1966) ("The trial judge is vested                                                                                            



with   wide   discretion   in   controlling   the   order   of   proof,   examination   of   witnesses,   and   the  

scope of cross-examination.").                                                     



                                                                                                                    -  13 -                                                                                                                  2681
  


----------------------- Page 14-----------------------

                                         23  

testimony.                                       The trial court's conduct - and the introduction of Sergie's testimony -                                                                                                                                                                                                



therefore did not violate Akelkok's right to due process.                                                                                                                     



                          Why we remand Akelkok's case for correction of the presentence report                                                                                                                                                                            



                                                  In response to an objection by Akelkok's attorney prior to                                                                                                                                                               sentencing, the   



trial court agreed   to   delete   certain information from the                                                                                                                                                  presentence   report.    The   court  



 stated   that  it  had   crossed   out  these   matters   and   that  they   would   not  affect  Akelkok's  



 sentence.   However, the presentence report contained in the record does not reflect these                                                                                                                                                                                           



redactions.    



                                                  Under Alaska                                         Criminal Rule   32.1(f)(5), a                                                                          trial   court is   obligated   to   fully  



delete any redactions to a defendant's presentence report and label the corrected copy as                                                                                                                                                                                                                                  



the   "approved   version"   before   delivering   it  to   the   Department   of   Corrections   within  



 seven days after sentencing.                                                                             We therefore remand this case                                                                                        so   that   the trial court may   



 obtain a corrected copy of Akelkok's presentence report that complies with its previous                                                                                                                                                                                                           



ruling and with Criminal Rule 32.1(f)(5).                                                                                                           24  



                                                                                                                                                                                                                                                                                                                   

                                                  On appeal, the  State  argues  that the  trial court should  amend, rather  than  



                                                                                                                                                                                                                                                                                    

redact, these portions of Akelkok's presentence  report.   But the State did not object to  



             23          Raphael, 994 P.2d at 1008 (providing that testimony is coerced or involuntary if it is                                                                                                                                                                                                       



"obtained   by   threat  or   by   a   direct  or   implied   promise   that  is   sufficiently   compelling   to  

 overbear an individual's will in light of all the surrounding circumstances") (citing                                                                                                                                                                                                               Hutto v.   

Ross, 429 U.S. 28, 30 (1976), and                                                                                      United States v. Leon Guerrero                                                                                 , 847 F.2d 1363, 1366 (9th                                                     

 Cir. 1988)).   



             24  

                                                                                                                                                                                                                                                                                                                      

                         See Christian v. State, 276 P.3d 479, 483-84 (Alaska App. 2012); Cragg v. State, 957  

                                                                                                           

P.2d 1365, 1368 (Alaska App. 1998).  



                                                                                                                                                       -  14 -                                                                                                                                                     2681
  


----------------------- Page 15-----------------------

the trial court's ruling at sentencing, and the State failed to file a cross appeal.                                                                                                                                                          The State   

has therefore waived this claim.                                                                25  



                                                         

                     Conclusion  



                                                                                                                                                                                                                                         

                                          We direct the trial court to prepare and distribute  a  corrected presentence  



                                                                                                                                                                                                                                                                                

report  in  compliance  with  its  prior  ruling  and  with  Alaska  Criminal  Rule  32.1(f)(5).  



                                                                                                                                                                                             

With that exception, we AFFIRM the judgment of the superior court.  



          25         Peterson   v.   Ek ,   93   P.3d 458, 467                                                                  (Alaska 2004) ("We have consistently held that                                                                                    



failure to file a cross-appeal waives the right to contest rulings below.").                                                                                                        



                                                                                                                              -  15 -                                                                                                                           2681
  

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