Alaska Justice Forum ; Vol. 3, No. 1 (January 1979)

Item Type Journal

Authors UAA Criminal Justice Center; Trivette, Samuel H.; Lederman, Sema

Citation Alaska Justice Forum 3(1), January 1979

Publisher Criminal Justice Center, University of Alaska Anchorage

Download date 29/09/2021 14:40:01

Link to Item http://hdl.handle.net/11122/10825 IN THIS ISSUE· Ala1sl(;1 • Carlson's Ruling • Parole Guidelines .J11sti�e • Check Program

1� tt 1· 11111 Vol. 3, No. 1 January 1979 Carlson's Ruling on Guns AS 12.15.080 MEANS TO EFFECT RESISTED ARREST. If the person being arrested either flees or forcibly resists after notice of intention to make the arrest, the peace officer may use all the necessary and proper means to effect the arrest. On Nov. 24, Anchorage Superior interpreted by Judge Carlson, the su­ Constitution, Judge Carlson found it logi­ Court Judge Victor D. Carlson declared preme court said state statutes require a cal to extent it to a determination of the AS 12.15.080 unconstitutional to the ex­ finding of necessity before a homicide reasonableness of a seizure (or arrest) as tent that it permits a peace officer to use can be considered justified. A mere show­ well. deadly force to apprehend a suspect who ing that a suspect has committed a felony Thus, confronted with the necessity to is not a threat to the life of the officer, a is not sufficient to support a finding of determine if the seizure, or arrest in this bystander, a victim or any other person. necessity where deadly force was used case, was unreasonable due to the use of This ruling was in response to a unless a dangerous situation exists. excessive force, Judge Carlson noted that motion by Russel Sundberg to suppress When a dangerous situation can't be while no court had ever specifically found the fruits of his arrest for burglary in a shown, the shooting of the defendant force necessary to make an arrest to be dwelling on the grounds that excessive would be a violation of AS 12.25.080,. unreasonable under the Fourth Amend­ force was used in his arrest, thereby Judge Carlson ruled. Since, in the instant ment of the U.S. Constitution, courts making the arrest unlawful. He had been case there was no showing of necessity­ have found forcible searches to be shot and wounded last May while seen the police officer did not demonstrate a unreasonable. running from the scene of a reported reasonable belief that the defendant was a Applying this reasoning, Judge Carlson burglary carrying a pillow case as a sack. threat to either the police officer or found that the fact that the defendant Prior to the shooting, the officer had others-his actions were unconstitutional. may have escaped if he had not been shouted the command "Hold it," but the However, if this analysis of the Gray shot, does not make the use of deadly defendant continued his flight. holding is not correct and AS 12.25.080 force reasonable under Fourth Amend­ The ruling is being appealed to the does permit the use of deadly force in the ment standards, nor under Art. 1, Sec. Alaska Supreme Court by the Depart­ absence of any threat to others, then · 14, of the Alaska Constitution. Judge ment of Law. Judge Carlson found the statute to be in Carlson found further support for this Because of the interest and the signifi­ violation of Art. 1, Secs. 7 and 14 of the approach in the Alaska Supreme Court cance of the issues involved, the following Alaska Constitution: Creating violations decision in State v. Glass, Opinion No. summary of Carlson's Memorandum of of due process of law and of a person's 1724, in which the court held that effec­ Decision is presented. It is presented constitutional protection against unrea­ tive law enforcement is· not a sufficient without comment and does not reflect sonable search and seizure. justification for the violation of a defend­ any expression of opinion on the issues Citing the Alaska Supreme Court ant's constitutional rights. involved. It is presented only for the decision in Zehrung v. State, 569 P.2d purposes of information. 189, 199 (Alaska 1977). Judge Carlson found the court stated that it is a basic While the Alaska Supreme Court has premise of the law of search and seizure A Test for Reasonableness never addressed directly the issue of a that governmental intrusions must have a peace officer's use of deadly force in_ justifiable purpose in order to be recog­ Judge Carlson then proceeded to de­ making an arrest, Judge Carlson said the nized as reasonable. velop a three-step test to determine the court has indicated that an officer's use While this premise was considered in requirements of reasonableness relating to of force is not unlimited. In Gray v. the context of the reasonableness of a State, 463 P .2d 897 (Alaska 1970), as search under Art. 1. Sec. 14 of the Alaska (Continued on Page 5) Page 2 Alaska Justice Forum January 1979 What Parole Guidelines Can Do

This coalition of college professors, To quote some of his relevant testi­ mony: "Sometimes it is supposed that By Sam Trivette ex-offenders, consultants and criminal justice professionals all agreed that the the alternative to a lot of sentencing Executive Director basic philosophy behind determinate or discretion is to have the legislature set the Alaska Parole Board presumptive sentencing is valid, but that sentencing standards. Suggestions to limit The Criminal Code Revision Commis­ the goals · supporting that philosophy the judge's discretion provoke agruments sion spent two years reviewing various would be better met by the parole guide­ about the ills of legislative sentencing, for sentencing schemes in developing its lines model. instance, t_he tendency of some legisla­ Crimina·I Code Proposal, and finally tures to adopt harsh penalties to show adopted a concept incorporating both a Community Release Supported toughness on crime. "I do not believe that the legislature is presumptive sentence component as well The American Bar Association has well suited to write the sentencing stan­ as parole guidelines component. been a very avid opponent of traditional dards. Aside from the dangers of escalat­ parole. However, in a position paper last ing the penalties for political reasons No Light Decision fall, they recommended a "community legislatures simply do not have the neces­ The commission's decision to incorpo­ release board," separate from the court, sary time. rate the parole guidelines model did not established to determine the length of Adequate standards are complicated come lightly and was adopted only after prison terms. A review of their paper and will require experimentation and re­ being made aware of some of the follow­ indicates the separate "community re­ vision over time. The standard-setting ing information. lease board" with tightly structured dis­ agency would be capable of reviewing and Many of the very strong and vocal cretion is the same as envisioned by the adjusting these standards continually, in opponents of traditional parole through­ Alaska Criminal Code Commission in its the light of accumulating judicial experi­ out the United States have backed off of sentencing proposal with parole guide­ ence with the use of such norms. their strong support of determinate and line·s. presumptive sentencing schemes, and are "A Congress that each year must now supporting a parole guideline model Sentencing Commission decide an international budget and de­ velop major- programs in the fields of similar to the system functioning in the The Law Enforcement Assistance Ad­ energy and job creation and a host of State of Oregon. ministration recently had a report pre­ other areas simply does not have the time For example, the Council of State pared on parole by Andrew von Hirsch, and resources for the task of reviewing Governments had adopted a paper and Professor of Criminal Justice at Rutgers and fine tuning sentencing standards po Ii cy statement recommending the University. Professsor von Hirsch, the abolishment of parole. But, at a recent author of a book released in late 1976 adopted in the previous sessions. "It is preferable, I think, to create a conference in Colorado, the author of entitled Doing Justice, strongly supported special rule-making agency, namely a sen­ that paper indicated he now feels the a flat time sentencing scheme with discre­ tencing commission, to set up the stan­ parole guidelines system as operating in tion being left to the court and the dards of the subcommittee bill, Senate several jurisdictions was more viable than legislature. the Kennedy Bill Senate other "flat time" sentencing schemes Since this book was published in 1976, 437, as well as without discretionary release. Professor von Hirsch received the grant 181, and our Javitts Bill proposal; a spe­ At the same conference, a number of from LEAA and spent a considerable cialized rule-making agency having setting professional people were in attendance amount of time in states which have been of standards as its primary function can from the State of California which has working on changing sentencing laws. develop expertise in this task, it could recently adopted a "model determinate After. becoming intimately familiar regularly modify and revise its norm on sentencing" bill. The determinate sen­ with the various concepts involved with the basis of experience." tencing bill abolishes discretionary release the discretion issue; and spending time in Statewide Conference from incarceration and much more tight­ such states as California and Oregon ly structures the discretion of the sen­ which have adopted different sentencing The Statewide Conference on Incar­ tencing judge. models, Professor von Hirsch is now advo­ ceration and Re-Entry Alternatives was Each of these professionals from Cali­ cating the establishment of a separate held in Anchorage on January 19-21, fornia had been extremely supportive of commission or board from the judiciary 1978, to bring together diverse elements the determinate sentencing concept when that would set the length of prison terms. of the criminal justice system for public initially proposed to the state legislature, Von Hirsch testified before the United education and policy recommendations. but all are unanimously opposed to it States Senate last summer in supporting At least three of the workshops at this now because of the manner in which it is the Oregon Model that would establish conference specifically addressed the actually functioning. They are working the Advisory Commission on Prison issue of sentencing. One group recom­ actively to have the bill repealed, and Terms requiring that the judiciary and mended the narrowing of discretion in all instead strongly supported a structured parole board work together in setting up sectors of the criminal justice system, parole guidelines concept. the standards for the parole guidelines. beginning with the police and including Alaska Justice Forum January 1979 Page 3

the prosecutor, the judge, the classifica­ explicit and are quantified and measur­ than the current "clearly mistaken" rule tion process, determination of good time, able under the guidelines model. of the Supreme Court cu rre ntly in use for and the parole boa rd . Release dates would be based upon sentence appeals. The criminal code bill, as finally ap­ objective criteria rather than family back­ proved, increases the discretion of the ground, social history, etc. The specific Maintains Flexibility police, prosecutor, and the classification weight given to each factor would be The guidelines model using an ad­ ·process; it both increases and decreases known in each case as the guidelines ministrative body such as the Prole Board the discretion of the court, probably hav­ model requires the articulation of numeri­ maintains the flexibi lity to continually ing little net effect; the only discretion cal values rather than a broad statement revise and update the guidelines based of the reasons for the length of the prison that is cut back re lates to the parole upon cu rrent co mmunity values and re­ board, where discretion is either more term. search compiled on the guidelines criteria. severely curtailed or entirely eliminated. In other words, under the present The need for correction of defects and Another workshop group strongly sup­ system and under the Criminal Code, as omissions has been necessary in all sen­ ported the parole guidelines model in the finally adopted, two different judges can te ncing schemes and can be much more Criminal Code Revision Co mmission pro­ give essentially identical reasons for im­ ea sily handled by an administrative body posa l as being helpful in eliminating un­ po sing a 5-year sentence and a 15-year rather than the legislature. The inherent warranted disparities in sentencing. The sentence {assuming the presumptive sen­ flexibility allows alterations in the gu ide­ participants of this group were also sup­ tence is ten years), and utilize the same lines based upon changes in community portive of other aspects of the Cri minal reasons for these two very different sen­ perception of offenses and in the addition Code Revision Commission proposal tences, and those widely varying sen­ or deletion of aggravating and mitigating which curtailed the discretion in other tences would be lega l and acceptable. ci rcumstances. areas of the system {such as good-time More Consistency In the last six months, new research and classification). techniques have developed a much more The third workshop recommended A much greater degree of consistency sophisticated prediction ability that that "The Parole Board implement a ca n be developed having five people ap­ would hopefully dovetail with the guide­ system similar to the federal parole plying one set of guidelines instead of lines model insuring less risk to the com­ board's guidelines which include a salient approximately 40 judicial officers apply­ munity from those released. factor score, as soon as possible." The ing the statutes giving different weights to U. S. Parole Co mmission's guidelines are each of the mitigating/aggravating factors Incarceration is for Punishment similar to the model adopted by the under broad presumptive terms. A very important section deleted from Criminal Code Revision Co mmission and Cases can be judged in relationship to the Criminal Code Revision Commission for which a federal grant has been re­ simi lar cases throughout the state rather proposal in the final Criminal Code Bill ceived by the Department of Health and than other cases that the individual judge was a section that made very clear that Social Services, Parole Board, to imple­ has handled. Consistency under the the purpose of incarceration was for the ment a guidelines syste m. parole guidelines model is also enhanced punishment for the co mmensurate with I believe it is of great significance that simply because the board members review the se riousness of the crime and prior many of the participants of this confer­ approximately seven times the number of record. ence were not criminal justice employees, fe lony cases the average judge sentences This statement was developed after but interested citizens who took their in one year. This statewide consistency is considerable discussion in which the own time interacting with criminal justice of major importance in improving the members of the Co mmission felt the pub­ professionals in order to recommend posi­ criminal justice system. lic should understa nd the primary pur­ tive changes to our system. Their sugges­ pose of incarceration was for punishment tions should be given close attention. Appeals Easier of the defendant. The guidelines model would make ad, Will Reduce Disparity Programming and services to' offenders mi nistrative appeals and court appeals of was encouraged in correctional facilities The guidelines model would reduce board decisions much easier to process and the state correctional system would inherent unwarranted discrepancies in the and the issues easier to define with the still have a responsibility for program­ lengths of the sentences being served by concrete criteria and the gu idelines ming offenders. Including this section in offenders sentenced in various jurisdic­ matrix. the statute would have made clear, how­ tions throughout the state. The guidelines are a better vehicle for ever, that the most severe sanction available Discretion is much better defined and hand I ing the unwarranted disparity prob­ to the state, imprisonment, is primarily controlled, and very importantly-is lems than appellant review as the guide­ for the purpose of punishment. measurable, under this concept. Data lines deal -with all sentenced offenders Far more programs are available in the would be available on how closely the required to serve six months or more, not community for the "rehabilitation" of guidelines are being fo l lowed, and the just those who elect to appeal. Abuse of offenders and far less serious sanctions "mitigating/aggravating factors" are more discretion would be. much easier to define (Continued on Page 4) Page 4 Alaska Justice Forum January 1979 Anchorage Check Program

by Serna Lederman to make payment. If the merchant does Certified letter forms and affidavits are Community Crime not receive payment, the merchant signs available now at the Anchorage Police Prevention Program an affidavit stating that he/she agrees to Department, and the District Attorney's testify in court or release involved store office is prepared to carry through on all On August 21, 1978, a new program personnel to participate in court proceed­ cases which are brought to them. for prevention and prosecution of bad ings, and that the merchant will not Nationally, the U. S. Chamber of Com­ check writers was proposed to the accept payment or restitution unless so merce estimates a billion dollars or more Anchorage Chamber of Commerce. directed by the courts. is lost each year. Speaking on the panel of experts was In Anchorage bad checks have become Mike O'Neill, of O'Neill Investigations, The latter is most significant, as often a major liability. It is estimated mer­ Captain Ralph Christianson of the in -the past merchants dropped charges if chants are losing several hundred thou­ Anchorage Police Dept., Joseph Balfe, restitution is made after police and prose­ sand dollars annually. B ut in 1977, only District Attorney, District Court Judge cutors have gone to considerable effort in 57 bad-check cases were brought to court Laurel Peterson, and Superior Court bringing a case to court. A practice which in Anchorage, or less than one-half of one Judge Ralph Moody. has dampened prosecution in the past. percent of the 1977 cases. Also participating in the program were Robert Tober of the FBI, and "Paul," who had served a total of 12 years in various penitentiaries for felonious check­ Parole Guidelines related offenses. The program was moder­ Presently, Alaska Statutes provide for ated by Serna Lederman. (Continued from Page 3) are available to the criminal justice a reduction of 28% to 34% for good Joint Project system than imprisonment for violating institutional conduct and program in­ The new procedures were developed laws, and the statem ent above clarifies volvement. The final version of the crim­ jointly by the Community Crime Preven­ succinctly the purpose of incarceration if inal code provides for about a 25% reduc­ tion Program (Criminal Justice Planning it is to be utilized. tion for good time. Agency), and the Crime Prevention Com­ The guidelines model offers a much mittee of the Chamber. After the initial Removes Uncertainty more tightly structured systematic ap• presentation to the Chamber, comments proach for determining the length of in­ One of the primary criticisms of parole and criticisms were received from mer- · carceration for convicted offenders, re­ boards throughout the nation has been chants and incorporated into the process the uncerta inty of when the offenders quiring the cooperation of the executive which is now endorsed by the criminal would be released to parole supervision, if and judicial branches, and promoting con­ justice agencies con_cerned and the mer­ at all. Under the guidelines model, release sistency throughout the state in establish• chants themsevles. dates would be established within six ing prison terms. months of sentencing, to the distinct The primary purpose of incarceration Merchants' Role adva ntage of the board, the offender, and should be stated in the statute and of­ The unique features of the program the correctional system. fenders should be released from custody focuses on merchants taking an active when they have served a reasonable time role in investigating and prosecuting bad for the crime committed based upon the check writers. There are guidelines for Only 10 Per Cent For Good Time defendant's prior record. determining acceptabil ity at the time a Decisions would be made upon con­ check is written, such as: The Criminal Code Revision Commis­ crete, verifiable information rather than • Not accepting two-party or payroll sion pro posal included a provision stipu­ other extraneous material. checks; lating that offenders would receive 10% Because of the mathematical process • Not accepting counter or starter of their sentence for good time based utilized, persons outside the decision­ checks; u pon good institutional behavior. This ma king process could easily verify • Requiring Alaska driver's license, a 10% figure . was proposed by Norman whether or not the guidelines are being State identification; and Carlson, Director of the Federal Bureau followed as promul!lated. • Writing the place of employment, of Prisons, in testimony to the Congress residence and work phone number, or on a similar federal · sentencing bill last Increasing Support for Guidelines check writer clerk's initials, and amount summer. Carlson has the reputation of In summary, many of th_e professionals of purchase on the check. being a very "tough" administrator and dealing with the sentencing issue nation­ responsible for over 25,000 inmates in wide for several years now have become For Prosecution the federal correctional system. strong supporters of a parole guidelines Should a check be returned to the He indicated that the 10% good time model either by itself, or in conjunction merchant as unpayable, a certified letter, figure was quite sufficient to control the with some form of general determinate or with notification that he/she has 24 hours institutional behavior of inmates. presumptive scheme. Alaska Justice Forum January 1979 Page 5 Carlson's Ruling on Guns

(Continued from Page 1) With regard to the first state interest, protected right to suffer no deprivation the use of deadly force in making an preventing future crime, Judge Carlson of life or limb without due process of arrest. He suggested a Harvard Civil found that this would be accomplished law. Rights-Civil Liberties Law Review com­ by shooting the suspect. But, that society In order for the state's interests to ment entitled: "Deadly Force to Arrest, has rejected confinement prior to com­ outweigh the individual's interests, Judge Triggering Constitutional Review [1 1 mission of a crime as a means of preven­ Carlson held, the individual must be Harv. Civ. Rights-Civ. Lib. L. Rev. 361 tion and crime is deterred by the threat threatening a competing and equal inter­ (1976)] . The test proposed therein was: of subsequent punishment-anything else est in another person's life or limb. In When a fleeing nonviolent felony js offensive to the presu mption of inno­ other words, the peace officer must have suspect is shot at to effect his cence and other values central to the a reasonable belief that the fleeing sus­ arrest, the interest balancing pre­ American concept of justice. pect is threatening the life of the officer, scribed by a test of reasonableness In addition, the use of deadly force of bystanders, or of victims of the crime. would weigh the suspect's risk of against a fleeing suspect who has not used Otherwise, the use of deadly force to loss of life and trial against the or threatened deadly force is dispropor­ make an arrest would constitute an un­ state's need to prevent future tionate to any offense he may have com­ reasonable seizure in violation of the in­ crimes and to sustain the efficiency mitted. And, wh ile ca pital punishment is dividual's rights under Art. 1, Sec. 14, of of the criminal justice system. not permitted in Alaska, Judge Carlson the Alaska Constitution. Judge Carlson found this test to be noted that the statute arguably allows a Finally, recognizing that differences of similar to a due process test. Thus it peace officer to kill a fleeing suspect with opinion exist as to who has the responsi­ could be analyzed according to due pro­ no more justification than probable cause bility for striking the balance between cess principles: that no person shall be to arrest. competing interests of society-the courts deprived of life, liberty, or property with­ • Turning to the second state interest, or the legislature, Judge Carlson con­ out due process of law. the need for effective law enforcement, cluded that the responsibility ultimately Judge Carlson observed that it could be falls to the court. argued that if police are not allowed to Quoting from the Supreme Court's use deadly force to stop fleeing suspects, Rights of the Suspect decision in Miller v. State, 462 P.2d 421 all suspects would be given a right to In the type of situation arising in this (Alaska 1969), Judge Carlson noted that flight. case, Judge Carlson found, the fleeing the Alaska Supreme Court had However, Judge Carlson noted that al suspect has two fundamental rights : encouraged the re-examination of any force short of deadly force is still autho­ 1. The right to life-a right not to be rule which promoted rather than inhibit­ rized under his ruling and that the police deprived of life or limb simply because he ed violence : are not deprived of other means of mak­ has committed a crime; and "The control of man's destructive ing an arrest. 2. A right to a trial-a right to be and aggressive impulses is one of He noted that federal and several state afforded due process of law and to suffer the great unsolved problems of our and local law enforcement agencies no deprivation of rights until properly society. Our rules of law should throughout the country already prohibit convicted in a court of law. discourage the unnecessary use of the use of deadly force against fleeing physical force between man and felon suspects except where human life is Interests of the State man. Any rule which promotes threatened .. He also alluded to studies The state also has two interests which rather than inhibits violence should which, he found, indicated that use of be re-examined. Along with increas­ it seeks to protect in such circumstances: deadly force contributes little or nothing 1 . The prevention of future crime ed sensitivity to the rights of the to public safety or the deterrence of criminall y accused there should be which could be committed if the suspect crime. escapes; and a corresponding awareness of our Judge Carlson also observed that "ef­ need to develop rules which facil· 2. Preserving the effectiveness of law fective law enforcement is not an end in enforcement as a deterrent to crime. itate decent and peaceful be­ itself ..." and that "society and the havior." courts have long recognized that effective A Balancing of Interests law enforcement must be sacrificed where constitutionally protected rights are i n­ The final step in the test is to bal­ NO DECEMBER ISSUE fringed." ance the interests of the suspect No December issue of the Alaska Jus­ against the interests of the state since tice Forum was published as funds from neither is absolute. But, since fundamen­ Conclusion last year's grant had been depleted. tal rights are involved, the state must He concluded; therefore, that the In the meantime, a new grant has been demonstrate interests equal to or greater state's interest in deterring future crime approved by the Governor's Commission than the defendant's right to l ife and to and effective law enforcement does not on the Administration of Justice for con­ due process of law. outweigh the defendant's constitutionally tinued publication this year. Page 6 Alaska Justice Forum January 1979 Opinions of Note

SPEEDY TRIAL "Second, we have held explicitly that as to merit a denial of his request for a it is the responsibi lity of the trial court to continuance." Tommy A. DeMille develop 'failsafe' procedures to avoid the The court said: "It must be remem­ v. dismissal of cases pursuant to Criminal bered that Ledbetter's right to be repre­ State of Alaska Rule 45." sented by counse.l in this criminal pros­ Opinion No. 1676 ecution was of constitutional dimension. Petition of Review from the Superior A waiver of such right is not to qe lightly Court, Third Judicial District, Anchorage, ASSISTANCE OF COUNSEL inferred. As we stated recently in Judge Ralph E. Moody. O'Dell Lewis C. Ledbetter v. Municipality of Anchorage, supra at Although a two-month error was made v. 108, in order to find a waiver the record in recording the commencement date of State of Alaska must clearly disclose that the accused the 120-day rule (Criminal Rule 45), the Opinion No. 1682 'intelligently, competently, understand­ supreme court sustained the trial court's Appeal from the Superior Court, Third ingly, and freely waived' the benefits of denial of a motion to dismissed for viola­ Judicial District. Anchorage, Judge Ralph legal representation ...Suc h a showing tion of the rule. E. Moody, and District Court, Seward, was not made here." In this instance the defendant was Judge James C. Hornaday. represented by counsel on the date he The supreme court held the denial of surrendered to police and no objection WAIVER OF JUVENILE the defendant's request for a continuance was made when, in open court, a trial JURISDICTION date was set outside the 1 20-day period of his OMVI trial to allow more time to In Re J.W.H., a minor provided by Criminal Rule 45, nor were obtain an attorney effectively denied his v. any motions or objections concerning the constitutional right to the assistance of State of Alaska trial date made during an omnibus hear­ counsel. The conviction was reversed and Opinion No. 1708 ing. But, after 124 days had elapsed a the case remanded back to the district Appeal from the Superior Court, Fourth motion to dismiss was filed. court for a new trial. Judicial District, Fairbanks Judge James In Peterkin v. State, 543 P.2d 418 The court said the right to assistance R. Blair. (Alaska 1975) the supreme court said: of counse l, even though the prosecution "for purposes of determining whether a was for a misdemea nor rather than a The Alaska S upreme Court affirmed speedy trial violation existed ... it was fe lony, cannot be questioned in light of the superior court decision waiving Juve• not relevant that (the defendant) failed to the penalties involved in this type of nile ju risdiction of the appellant. demand a trial and the trial judge erred in offense. Repeating its previous statements In P.H. v. State, 504 P.2d 837 (Alaska considering it necessary." in Alexander v. City of Anchorage, 420 1972), the court said that there rnustbe a P.2d 910, 91 3 (Alaska 1971) and O'Dell hearing which measures up to the essen­ But in the instant case the supreme v. Municipality of Anchorage, 576 P.2d tials of due process and fair treatment court said: " . . . it is clear that counsel for 104, 106 (Alaska 1978) , the supreme and at this hearing there mus.t be a thor­ DeMille knew or should have known that court sa id an accused "has the right to ough examination of: the time for trial ...fe ll outside the per­ the assistance of counsel for his defense if 1. The probable cause for believing missible 120-day period provided by he is prosecuted for a misdemeanor, as that the child committed the act with Criminal Rule 45. Given these circum­ well as for a fe lony, when the penalty which he was charged; stances, we hold that DeMille waived any upon convrction of the misdemeanor may 2. The amenabil ity of the child to objection to the superior court's failure result in incarceration in a jail or penal treatment as a juvenile. to comply with Criminal Rule 45." institution, the loss of a valuable license, Regard ing the amenability of a juve­ But, while affirming the lower court's or a fine so heavy as to indicate crim­ nile to treatment, the supreme court said action, the supreme court disagreed with inality." AS 47.10.060(d ) suggests four factors the reasons given by the trial court in Noting the conversation between the which may be considered by the court: denying the motion. defendant and the magistrate at arraign­ 1. the seriousness of the offense; The trial court based its denial of the ment seven weeks prior to the trial, the 2. the delinquency of the minor; motion to dismiss on the finding of a lack supreme court said there was at least an 3. the probable cause of the delin­ of prejudice to DeMille and that a mis­ im11lication that if the defendant had any quent behavior, and take had been made on which everyone problems with the trial date setting he 4. the faci Iitie s available for the treat­ acted. could make them known and continu­ ing of the minor. ances would be available and in light of The superior court in this case made The supreme court said: such an implication or understanding the findings on each of these factors and the "First, this court has never ruled that request for a continuance on the day of supreme court, after reviewing the record, the defendant must show prejudice in trial "did not demonstrate such a com­ concluded the findings were supported by order to invoke Criminal Rule 45. plete lack of dil igence on Ledbetter's part substantial evidence. Alaska Justice Forum January 1979 Page 7

Brief digests of AlaskcJSupr eme Court Opinions and the criminal justice issues involved

FAI LURE TO RENDER AID nature that one would reasonably antici­ The supreme court said that under pate that it resulted in injury to a person. Rule 31 (f), Alaska Rules of Criminal Edward Burns Kimoktoak Under this standard, the supreme Procedure, the trial court erred in order­ v. court said, the trial court erred in in­ ing a sealed verdict over defense objec­ State of Alaska structing the jury that it could find tions. Opinion No. 1704 knowledge of injury "where the Consequently, the supreme court re­ Appeal from the Superior Court, Third circumstances were such that they would versed Kimoktoak's convictions_ for joy­ Judicial District, Anchorage, Judge Peter lead a reasonably prudent person to as­ riding and failure to render aid an·d the sume that an accident (occurred) result­ case was remanded back to the lower AS 28.35.060, which requires that the ing in injury." court for a new trial. operator of a vehicle involved in an acci­ dent must render aid and assistance to The supreme court explained that it is persons injured in the accident on its face not the reasonable person who is on trial, does not require that a person have but the defendant, and it is the defend­ knowledge of the accident or of the fact ant's intent which must be proved, not that injuries resulted. that of a hypothetical reasonable person. MANN INSTRUCTION This would appear to hold a person It must be shown that the defendant Jack L. Howard strictly liable for failure to render assist­ knew of the nature of the accident. v. ance even if he is unaware of any wrong­ State of Alaska The court also said the trial court doing-that is, unaware of the circum­ Opinion No. 1707 erred in not instructing the jury as to the stances giving rise to the duty and thus Appeal from the Superior Court, Fourth effect of intoxication of his knowledge of unaware that he is in fact failing to do the Judicial District, Fairbanks, Judge Warren required act. the facts giving rise to a duty under AS But the Alaska Supreme Court con­ 28.35.060. The instruction given did not The Alaska Supreme Court held the cluded that the legislature intended that permit the jury to consider Kimoktoak's trial court in this case erred in giving the criminal liability under AS 28.35.060 at­ intoxication as it related to his knowledge Mann instruction which can reasonably tach only where the operator of a motor or lack of knowledge. be interpreted as shifting the burden to vehicle knowingly fails to stop and render the accused to produce proof of · in­ assistance. Under AS 11.70.030, Intoxication as a Defense, the supreme court said, volun­ nocence. The court said, "The statute requires tary intoxication generally is no defense The court previously addressed this in an affirmative course of action to be tak­ to a crime; but where purpose, motive or Menard v. State, 578 P.2d 966 (Alaska en by the driver and it necessarily follows intent is an element of a crime, such 1978). In Menard the. supreme court con­ that one must be aware of the tacts giving intoxication may be considered by the cluded the error was harmless beyond rise to this affirmative action in order to jury in determining whether or not the reasonable doubt since the jury acquitted perform such a duty. Like other courts accused in fact had the requisite purpose, the defendant of the specific intent which have construed similar statutes also motive or intent. charge against him. silient as to crimina l intent, we cannot But in this case, the defendant was believe that the legislature could have The court said, " ...Onc e an element charged with a specific intent crime, intended that persons who unknowingly of a crime is that the defendant acted or grand larceny, and other instructions to fail to stop and render assistance could be failed to act with a particular mental the jury erroneously placed the burden of subject to serious criminal penalties." state, i.e., knowledge, we think that the proof on the defendant. In this case In so doing the supreme court over­ effect of intoxication on this mental state placing upon the defendant the burden of ruled its previous decision in State v. cannot be i!lnored. proving by "clear and convincing evi­ Campbell, 536 P.2d 105 (Alaska 1975) to dence" that the property taken had been the extent that Campbell established the "We hold, therefore, that where one is abandoned. broad rule that criminal intent can be charged with failure to render assistance The supreme court repeated its state­ found by implication only in statutes under AS 28.35.060, and where there is ment in Menard : which codify common law crimes. evidence of intoxication, the jury may "We are persuaded by the extensive The supreme court said that under AS consider the fact that the accused was criticism which this instruction has 28.35.060(c) criminal liability attaches to intoxicated in determining whether he evoked. We hold that the giving of the a driver who leaves the scene of an acci­ had the requisite knowledge." Mann instruction is error, and we ad­ dent where the state can prove by direct The court approved an instruction monish the Alaska trial courts to c;ease or circu mstantial evidence that the driver based on California Jury Instructions­ using it. Like the Fifth Circuit, however, actually knew of the injury or that he Criminal, CALJIC 4.25 (Supp.3d Ed. we decline to hold that this error will knew that the accident was of such a 1970). always be deemed reversible." Page 8 Alaska Justice Forum January 1979 r Opinions of Note

SECOND-DEGREE MURDER In Marks v. City of Anchorage, 500 • That it was inappropriate for the INSTRUCTION P.2d 644, 646 (Alaska 1972), the superior court to have ordered the sen­ supreme court said a vague statute vio­ tence to be served consecutively with the Steven Bendle lates due process if "its indefinite con­ burglary sentence; v. !our� c;o11fer unbridled discretion on gov­ • And that it was impermissible for State of Alaska ernment officials and thereby raise the the sentencing court to impose a consecu­ Opinion No. 1710 possibility of uneven and discriminatory tive sentence resulting in a cumulative Appeal from the Superior Court, Fourth enforcement." sentence exceeding the maximum term of Judicial District, Fairbanks, Judge James In this instance, the supreme court imprisonment authorized for the crime of R. Blair. said a formerly convicted prostitute or receiving and concealing stolen property. The Alaska Supreme Court held the panderer could be convicted of "loiter­ The supreme court said: 'Since the trial courter red in failing to give the jury i ng" even if engaging in window shopping crimes in question were unrelated of­ an instruction on second-degree· murder, or standing on a corner waiting for a _bus; fenses, imposition of- consecutive sen- ' but that the error was harmless in this that such a person could stand on a tences was appropriate. case as a special interrogatory indicated public street corner or walk down a pub­ " ... Further, in [Thomas v. State, 566 that the jury found the intentional killing lic si_dewa lk only at the whim of any P .2d 630 (Alaska 1977)] we specifically in this case was committed in the per­ police officer. rejected the contention that consecutive petration of a robbery. The court said, "A fair reading of AO sentences are illegal where their cumula­ The supreme court went on to say: We 8.14.110 discloses that the ordinance on tive impact exceeds the statutory maxi­ do take this opportunity, however, to its face gives enforcement officials exces­ mum for any one of the separate caution' the trial courts that normally a sive discretion, inviting by its inexacti­ offenses." second-degree murder instruction should tude arbitrary enforcement and uneven A more serious contention raised in be given as a matter of course to juries application. We can think of no construc­ the appeal is that· the consecutive sen­ tion which will save the statute from this tence is excessive given the length of the hearingafirs t-degree murder case.This infirmity. Therefore, we hold that AO sentence imposed for burglary in a dwel­ will avoid any possibility that such juries 8.14.110 is void for vagueness . .." ling. But the merits of the sentence im­ might be foreclosed from an alternative The convictions of four appellants posed for the burglary -offense were not verdict which would be justified by cer­ under this ordinance were reversed. presented in this appeal and the supreme tain possible findings of fact." court said it was inappropriate to address In a footnote, the supreme court said CONSECUTIVE SENTENCE this subject in this appeal. this should not be read as indicating any The court noted, however, that a sen­ belief !tl_a�_!! i_s �_l'!C��s� ry to allowjurors Melody J. Preston tence appeal was being raised in the bur­ an opportunity to return a compromise v. glary case and the court said that sen­ verdict, "We do not believe that juries State of Alaska tence will be given careful consideration. should reach verdicts by compromise, and Opinion No. 1717 we will not give our approval to such Appela from the Superior Court, Fourth PRETEXT STOP procedures." Judicial District, Fairbanks, Judge Allen T. Compten. Charles Edward Brown LOITERING FOR THE The Alaska Supreme Court affirmed V. PURPOSE OF SOLICITATION the action of the trial court in imposing a State of Alaska OF PROSTITUTION two-year sentence following revocation of Opinion No. 1654 probation to be served consecutively with Appeal from the Superior Court, Olivia Lee Brown an eight-year sentence with three years Third Judicial District, Anchorage, v. suspended. Judge Eben H. Lewis. Municipalityof Anchorage Probation was initially granted follow­ Opinion No. 1715 ing a conviction for receiving and conceal­ Brown appealed his conviction of rob­ Appeal from the Superior Court, Third ing stolen property. but was suspended bery claiming that his arrest was based on Judicial District, Anchorage, Judges following conviction for burglary in a a traffic stop which was used as a pretext James K. Singleton and Ralph E. Moody. dwelling which occurred after being to seek evidence for another crime. The Alaska Supreme Court held that placed on probation. The supreme court, in a per curiam the Anchorage Municipal Ordinance The supreme court found the argu­ decision, said there was substantial evi­ 8.14.110, which prohibits loitering for ments raised on appeal were lacking in dence to support the trial court's determi­ the purpose of solicitation of prostitu­ merit, that: nation that Brown's vehicle was stopped tion, is unconstitutionally vague and, • The superior court disregarded re­ for violation of traffic regulations and therefore, void. habilitation in determining its sentence; this was not a pretext stop. Alaska Justice Forum January 1979 Page 9 Opinions of Note

PUBLIC DEFENDER Agency has a real and identifiable interest The court described such hybrid ac­ REPRESENTATION in seeking rel ief as it considered it to be tions as not uncommon in the American its obligati"on to represent an indigent legal system and they exist for the protec­ Alaska Public Defender Agency defendant, and the agency has a substan­ tion of the public. v. tial interest in seeking a final judicial Superior Court determination relating to the boundaries Opinion NO. 1733 and scope of its statutory duties. Application to the Supreme Court for original relief from the decision of the UNDERAGE DRINKING Superior Court, First Judicial District, TRAFFIC INFRACTIONS Juneau, Judge Thomas B. Stewart. Minnie Michael, et al. The Alaska Supreme Court affirmed State of Alaska v. the lower court denial of a defendant's v. State of Alaska request for representation by the Alaska The Hon. Monroe Clayton, et al. Opinion No. 1714 Public Defender Agency when charged Opinion No. 1734 Review from the Superior Court, Fourth with harassment under a Juneau Munic­ Application for Original Relief from the Judicial District, Bethel, Judge Jay ipal Ordinance. decision of the District Court, Fourth Hodges. The supreme court said harassment, as Judicial District, Fairbanks, Judge Mon­ The Alaska Supreme Court held that defined in the Juneau Municipal ordi­ roe N. Clayton. AS 25.20.010, as amended in 1977, nance is not a serious crime within the The Alaska Supreme Court r eversed which lowered the age of majority from meaning of AS 18.85.170(5) dealing with the orders of the Fairbanks District Court 19 to 18 years, does not supersede or by the Public Defender Agency. The statute which quashed all warrants issued for implication repeal 15 AAC 20. lO0(b), is entitled to representation by an attor­ failure tci appear or satisfy fines for traf­ wh ich prohibits drinking of alcoholic bev­ ney under the Constitution of the State fic infractions. erages by persons under 19. of Alaska or the United States Con­ When Judge Monroe N. Clayton orig­ stitution." The supreme court said that since 1 5 inally quashed all of his outstanding war­ In Baker v. City of Fairbanks, 471 AAC 20.1 00(b) is authorized by AS rants in cases involving traffic infractions, P.2d 386 (Alaska 1970) and Alexander v. 04.05.030(e), the regulation comes with­ he issued a memorandum in which he City of Anchorage, 490 P.2d 910 (Alaska in the "except as otherwise provided by explained that infractions are not con­ 197 1) the Alaska Supr eme Court dealt statute" exception to AS 25.20.010. sidered criminal offenses and may not with the right of an accused to trial by result in impr isonment nor fines which The court's ruling affirmed the supe­ jury and right to ·counsel in nonfelony could be considered penal or criminal rior court's action in reversing the district criminal prosecutions and stated that the pu nishment. He said that infractions thus court. term "serious offender" within the mean­ are civil in nature a nd that ordinary crim­ ing of the Public Defender Agency statute inal procedures such as warrants cannot encompassed any offense in which the be used for enforcement. direct penalty may result: But the supreme court held that a • in incarceration, prosecution for a traffic in fraction is a WANT ADDITIONAL COPIES • in the loss of a valuable license, quasi-criminal proceeding to which cer­ OF ALASKA JUSTICE • in a fine heavy enough to indicate ta in criminal procedures, including war­ FORUM criminality. rants, are applicable. Regarding the charge of harassment in AS 28.35.230, which governs penalties Additional copies of nearly all back the Juneau Municipal Ordinance, the su­ for traffic violations, states, in part, in issues of the Alaska Justice Forum are preme court said no provision is made for subsection (d ) that an infraction is not available at the Criminal Justice Center. imprisonment and the maximum fine is considered a criminal offense, but the Anyone missing any issue, or who $100. supre me court said it does not follow that would like additional copies can obtain Consequently, the court said such a the legislature meant that they are civil in them by writing the center. The center sanction cannot be taken as a gauge of nature and that cri minal procedures can­ will have to charge $1 a copy to the ethical and social judgment of the not be used for enforcement. cover the costs of postage and handling. community indicating criminality. The court said it found that the legisla- Contact: The defendant in the case did not -· tive purpose in enacting AS 28.35.230(d) Alaska Justice Forum appeal, but it was the Public De fender was to eliminate the criminal stigma from Criminal Justice Center Agency which filed the application for minor traffic offenses while keeping the University of Alaska, Anchorage original relief. In granting th is, the su­ enforcement of such offenses within the 3211 Providence Ave. preme court said the Public Defneder criminal system's p rocedures. Anchorage, Alaska 99504 Page 10 Alaska Justice Fo rum January 1979 r Points on Appeal

Andrew Westdahl offense of manslaughter. Donald D. Dillon V. a. The decisions of the U. S. Supreme V. State of Alaska Court and various state supreme State of Alaska · File No. 3928 courts have recognized the defense File No. 3722 Filed Aug. 25, 1978, by Allan Beis­ and mitigating effect of imperfect Filed Aug. 1, 1978, by Robert B. wenger, assistant public defender. se If-defense . Downes, attorney. b. The trial court should have instruct­ The appellant raises the fol lowing ar­ The appellant raises the following ar· guments on a ppeal: ed the jury as to the imperfect right of self-defense in order to minimize gu men ts on appeal: • The appellant was denied his right • The trial court erred in giving In· to �- �1:_e�y trial. whatever prejudice may have been caused defendant by jury confusion struction No. 7, paragraph 2; and Instruc­ • Because of the violation of Criminal over the menta l intent required to tion No. 8, paragraph 2. Rule 45, the case must be dismissed. convict for murder. • The trial court erred in failing to • rhe trial court prejudicially erred in grant appellant's motion to dismiss the indictment for failing to charge an Nathan Oxereox playing back only the taped direct exami­ offense. v. nation of a key witness to the jury after • Discovery granted to the prosecu­ State of Alaska representing to defense counsel that all tion violated the defendant's privilege File No. 3902 testimony of the witness would be replay­ against self-incrimination. Filed Sept. 6, 1978, by Walter Share, ed, and without giving the defendant • The trial court erred in imposing its assistant public defender. opportunity to object. • The apparent confusion over "spe­ sentence in that it failed to properly The appellant raises the following cific intent" required that the court adhere to the standards enunciated in points on appeal: either reinstruct the jury on the special Chaney. • The district court improperly con­ intent necessary for both first and second a. The sentence was improperly vened the grand jury. degree murder, or to poll the jury after its imposed. • The failure of the prosecutor to verdict was rendered. b. The sentence was excessive. explain exculpatory evidence or inform a. In order to eliminate jury confusion the grand jury of lesser included offenses. the trial court should have also • Admission of hearsay. State of Alaska clarified the instruction on finding v. • Change of venue. specific intent with respect to • Denial of preemptory chal­ Betty Lou Firor extra second degree murder. lenges. File No. 4239 b. After the jury returned its verdict • The trial court erroneously limited Filed Sept. 13, 1978, by Mary Anne of second degree murde r, the court cross-examination of a witness. Henry, assistant district attorney. should have polled the jurors to determine whether they had made a The state, pursuant to Alaska Rules of Michael M. Bangs finding of specific intent. Appellate Procedure 9(e), raises the fol­ v. • The sentence imposed by the trial lowing points on appeal: State of Alaska judge does not properly reflect the consti­ • Instruction No. 11 given by the File No. 3483 tutional goals as interpreted by the trial court was properly given. Filed August 8, 1978, by Mitchel J. Scha­ supre me. court. a. The instruction does not shift the pira, attorney. burden of proof from the state to The appellant raises the following the defendant. points on appeal: Reginald N. Bright and b. Any error was cured by giving I n­ • The trial ·court prejudicially erred Kathleen M. Bright struction No. 5. by failing to instruct the jury on the issue v. c. If Instruction No. 11 was in error, of retreat and there by placed an undue State of Alaska it was harmless error. burden on the conduct of the defendant File No. 4205 • The superior court i mproperly ap­ and effectively denied the defendant a plied the ruling in Menard v. State, Opin­ fair trial. Filed Aug. 24, 1978, by Joseph A. ion No. 1623 (Alaska, May 12, 1978) to • The trial court's failure to instruct _ l< alamarides, attorney. this case. the jury on the defense of imperfect Appellants argued that the superior self-defense not only interjected the court court judge erred when he ruled that the a. Instruction No. 11 is not a Mann into a role traditionally reserved for the airline search of the package was not in instruction. jurors, but also, effectively isolated their violation of defendant's Fourth Amend­ b. Menard was not to apply ret­ c onside ration of the lesser-included ment rights. roactively. Alaska Justice Forum January 1979 Page 11

Brief descriptions of points being raised in criminal appeals filed with the Alaska Supreme Court.

Willard Gipson its burden to prove the defendant was • The trial court erred in denying the v. sane beyond a reasonable doubt at the motion to dismiss the indictment as viola• State of Alaska time he performed criminal acts. tive of equal protection of the laws and File No. 3594 • The trial court erred in not acquit· due process. Filed Sept. 24, 1978, by Carol Johnson, ting the defendant when the defendant • The trial court erred in allowing the attorney. introduced expert testimony to the effect state to improperly present two rebuttal witnesses, one of whom was an expert The appellant raises the following that he was suffering from schizophrenia points on appeal: witness. and the state failed to maintain its burden • The trial court erred in denying the • The trial court erred in ruling that of proving sanity beyond a reasonable defendant's motions for a judgment of the defense could not present evidence to doubt as a matter of law. acquittal and for a new trial and that the show the motive of the principal to have evidence was insufficient to establish • The defendant's sentence is ex­ the defendant prosecuted. either first or second degree murder. cessive. • The trial court erred in ruling. that a. The evidence of diminished capaci­ Robert Wall the defense could not present evidence of ty even when considered in the v. the political climate in the �chool at tbe light most favorable to the state State of Alaska time the underlying charges were establishes a reasonable doubt as to File No. 4273 brought. whether the defendant could have Filed Sept. 7, 1978, by William P. Bry• • The sentence is excessive. formed a specific intent to kill. son. b. The evidence• otherwise failed to prove a specific intent to kill be­ The appellant raises the following Anthony R. Morris yond a reasonable· doubt. points on appeal: v. • The instruction on intoxication • The trial court erred in refusing to State of Alaska misstated • the intent requirement and graht the defendant a preemptory chal­ File No. 4264 denied defendant -a diminished ca1:>acity· lenge of a judge pursuant to both statute Filed Sept. 22, 1978, by David 'C. Back­ agreement. and rule subsequent to the codefendant strom, deputy public defender. • The trial court erred in instructing from whom he sought severance utilizing The appellant raises the following the jury of an inference. as to the natural a preemptory challenge. points on appeal: and probable consequences of the defend­ • The trial court erired in refusing to ant's acts and that i.nstruction violat�d his • T-he c0urt erred in denying the de­ give the defendant's• requested j1:1ry in· right,to due process. fendant's motion to sever his trial from struction whereupon the jury would have a. The instruction shifted the burden the trial of his codefendant. been instructed: "that if the jury had a of proving intent to the defendant. • The court erred in allowing into reasonable doubt as to whether the de­ b. The in�tructi on presents the jurors evidence statements of the codefendants fendant entertained a reasonable belief with an inappli�able intent without sufficiently establishing the con­ that the person who allegedly sold the standard. spiracy and the defendant's involvement marijuana was under the age of 18 years, • T�e trial court erred in failing to in it. then the defendant should be given the give the requested instruction on careless • The court erred in denying defend­ benefit of the doubt and found not use of firearms. guilty." • The trial court erred by allowing ant's motion for a mistrial after disclosure • The court erred in failing to grant into testimony evidence protected by the by the state of the confession of one of defendant's motion for judgment of ac· attorney-client privilege. the codefendants. quittal. • The court was clearly mistaken in • The court erred in failing to grant Allen J. Smith imposing a seven-year sentence on the defendant's motion for-acquittal notwith· v. defendant. standing the verdict as to Count I (the State of Alaska David Miller alleged sale). File No. 4228 v. • The court erred in giving an aiding Filed Sept. 6, 1978, by Albert H. Bran• State of Alaska and abetting instruction over the defend­ File No. 4244 son, attorney. ant's objection. Filed Oct. 12, 1978, by Irwin Ravin, • The trial court erred in giving a The appellant raises the following attorney. special interrogatory to the jury rather points on appeal: Appellant raises the following points than defendant's requested instruction • The defendant, having met his duty on appeal: noted under point No. 1 above. to introduce evidence supporting his de· • The trial court erred in denying the • The defendant's sentence was fense of insanity. the state failed to meet motion for a change of venue. excessive. Page 12 Alaska Justice Forum January 1979 Points on Appeal

Joshuway Davis • The defendant a lso appeals the sen­ • T he order to transport and treat the v. tence in this case under Rule 7. petitioner in this case is illegal in that the State of Alaska superior court did not, either proce­ Fire No. 4232 Bob L. Owen durally or substantively, have the power Filed Sept. 8, 1978, by Dana Fabe, assist­ v. to enter such an order. ant public defender. State of Alaska • The superior court erred in impro­ File No. 4231 The ap pellant raises the fo llowing perly considering the factors to be dete r­ Filed Sept. 7, 1978, by R. Samuel Pes­ mined in ordering the treatment of the points on appeal: tinger, attorney. • The trial court erred in finding that petitioner. Appellant r aises the following argu­ it did not have jurisdiction to consider • The superior court had insufficient ments on appeal: appellant's motion to modify his sentence evidence upon which to base an order to • That the District Attorney's office pursuant to Criminal Rule 35(a). treat the prisoner. informed the judge during his delib.era­ • The trial court erred in concluding • The superior court erred in order that a defendant does not have the right tions over defendant Owen that a co­ the treatment of the petitioner in that it to a Rule 35(a) motion to modify after a defendant, on the prior day, had received did not reverse or find incorrect the sentence appeal. a sentence of 15 years with three years finding of the district court that the • The trial court erred in concluding suspended when that defendant, I ike petitioner was not entitled to treatment. that a defendant-has the right to only one Owe n, had one prior conviction for armed robbery. Criminal R ule 3 5(a) motion to modify. • The trial court erred in concluding • Th_a t the point on appeal is that the that the sentencing judge , the Hon. Jus­ district attorney erroneously informed tice Edmond W. Burke, was the only the court of the co-defendant's pr ior rec­ ord because, in fact, he had three prior judge who could hear this motion to Maria V. Spencer convictions for armed robbery, while the modify pursuant to Criminal Rule 35(a). v. appellant had only one when he was 19 • The trial court erred in denying State of Alaska years of age. defendant's requested re lief based in part File No. 4308 That the sentence imposed is exces­ on its perception of "public defender • Filed Oct. 25, 1978, by Peter F. Mysing, practices." sive. Assistant Public Defender. • That the sentence imposed is in The appellant raised the following Shelley Williams violation of the Fifth, Sixth, Eighth and points on appeal: v. Fourteenth Amendments of the Un ited • The rnperior court e rred in denying State of Alaska States Constituti on, and the correspond­ the defendant's motion to dismiss the File No. 4263 i ng provisions of the Constitution of the indictment on the basis of a violation of Filed Aug. 11, 1978, by Albert Maffei, State of Alaska. Rule 45, Alaska Rules of Criminal Proce­ attorney. • T hat sanctions should be imposed dure. The appellant raises the following against the district attorney for misin­ • The superior court erred in denying points on appeal: forming the court at a critical time on a defendant's m otion to dismiss the indict­ • The district court improperly allow­ critical issue to such an extent that the ment on the grounds that the statutory ed an exhibit to be introduced into evi­ quality of life to be enjoyed by the scheme encompassed in AS 11.15.040 dence over the defendant's objections defendant was substantially prejudiced . and AS 11.1 5.200 violates her constitu­ when said exhibit had not been produced tional guarantees of due process of law on defendant's request for discovery State of Alaska under Art. I, Sec. 7, of the Alaska Consti­ under Rule 16. v. tution, and the Fifth and Fou rteenth • The district court erroneously gave Raymond N. Laymance Amendments of the United States Consti­ instructions which were objected to by Raym ond N. Laymanc tution. the defendant, said instructions not being v. • The superior court erred in denying the pro per instructions on the law in the Vernon Caulkins, Supt. the defendant's motion to dismiss the case. Alaska State Jail Annex indictment on the grounds that the statu­ • The superior court was in error in Anchorage tory scheme involved in AS 11.15.040 affirming the conviction of the File No. 4268 and AS 11.1 5.200 violates her constitu­ defendant. Filed Oct. 20, 1978, by Dean J. Guaneli, tional guarantee of eq ual protection of • The court was in error in entering Assistant Attorney General. the laws under Art. I, Sec. 1, of t he the Order to Show Cause Why Sentence The State of Alaska and Vernon Caul­ Alaska Constitution and the Fourteenth Should .Not Be Imposed on July 19, kins designate the following points on Amendment of the Un ited States Consti­ 1978. appeal: tution. Alaska Justice Forum January 1979 Page 13 Points on Appeal

Randolph Frances Miller Appellant raises the following points James J. Pascoe 11 V. on appeal: v. State of Alaska • The superior court erred in denying State of Alaska File No. 4318 defendant's motion to dismiss Count I of File No. 4290 Filed Oct. 13, 1978 by Peter J. Aschen­ the indictment. Filed Sept. 19, 1978 by Charles G. Evans, brenner, attorney. • The superior court erred in denying attorney. The appellant raises the following the defendant's motion to sever Count The appellant raises the following points on appeal: IV. points on appeal: .• The trial court erred in refusing to • The superior court erred in its • The superior court erred in failing give defendant's requested instruction ruling, at trial, that what Peggy Horn told to give an instruction to the jury on No. 1. Trooper Clontz was an excited utterance, intoxication as required by AS • The trial court erred in issuing a and thus admissible. 11.70.030. • The superior court erred in permit­ special interrogatory to the jury rather • The superior court erred in striking than instructing the jury according to the ting the state to cross-examine the de­ the testimony and evidence of the de­ fendant about whether he knew his in­ defendant's proposed jury instruction No. fendant. custody calls to Peggy Horn were in 1. • The superior court erred in failing violation of a court order. • The sentence imposed is excessive. to grant a motion to suppress or a protec­ •The superior court erred by not tive order prohibiting the introduction at taking one motion for mistrial under sentencing of any evidence regarding a Michael Rice advisement pending receipt of the verdict bank robbery allegedly committed by the v. when it was determined that improper appellant. State of Alaska materials had reached the jury. • The sentence imposed was exces­ File No. 4350 • The superior court erred in denying sive. Filed Nov. 13, 1978, by Myron Angst­ defendant's motion to permit late filing man, attorney. of a motion for a new trial. v. • The sentence is excessive. The following points are raised on State of Alaska appeal by the appellant: File No. 4331 • The superior court erred in denying Filed Nov. 6, 1978, by Richard G. Lind­ Lance Calder sley, Assistant Public Defender. defendant's motion pursuant to Criminal v. Rule 35(b)(1), which alleged that evi­ State of Alaska Appellant raises the following points dence used in a proceeding in the superior File No. 4293 on appeal: court in Bethel, on Jan. 17, 1978, to Filed Oct. 2, 1978 by Walter Share, As­ • The trial court erred in denying revoke the defendant's probation was ob­ sistant Public Defender. defendant's motion for a new trial based tained illegally in violation of the consti­ upon the jury 's consideration of inadmis­ tutions of the United States and Alaska, Appellant raised the following ques­ sible evidence during the process of and the laws of the United States and of tion on appeal: deliberation and arriving at a verdict, said Alaska. • Whether the superior court's im­ evidence having come to the attention of • The superior court erred in denying position of sentence for the offense of the jury because the state caused it to be the defendant's motion pursuant to reckless driving violated defendant's con­ broadcast over a local radio station at a Criminal Rule 35(b)(3) which alleged that stitutional right to be free of double time when one of the jurors heard the a sentence of the Superior Court in Kenai jeopardy since he had already been broadcast and brought it to the attention on March 3, 1978, placed the defendant punished for the offense -of reckless driv­ of the other eleven jurors during their on probation for a period exceeding the ing in the district court, deliberation. maximum authorized by AS 12.55.090(c) • That the trial court erred in deny­ and in violation of the constitutions of David William Johnson ing defendant's motion for a mistrial Alaska and the United States. V. based upon the improper conduct of the State of Alaska prosecuting attorney who caused to be File No. 4295 broadcast over the only radio station in Filed Oct. 3, 1978 by Douglas Pope, the town where the defendant was being Hugh A. Davidson attorney. tried three announcements containing evi­ V. The appellant raises the following dence which had been ruled inadmissible State of Alaska point on appeal: on two occasions, said broadcast occur­ File No. 4351 • The superior court erred by declin­ ring during the second day of trial while Filed Nov. 15, 1978, by John 11/1.r­ Mu ing to reduce or otherwise modify the the state was still presenting its case to tagh, Assistant Public Defender. sentence of the appellant. the jury. Page 14 Alaska Justice Forum January 1979 Jan. 29-30. Use of Structured Experi­ Feb. 26-Mar. 1. Police Discipline. IACP. ences. Theorem Institute. Reno, Nev. Houston, Tex. Jan. 29-31. Crisis Intervention. University Feb. 26-Mar. 2. Crime Analysis. IACP. of Maryland. College Park, Md. San Francisco, Calif. Justice Feb. 26-Mar. 2. Traffic Accident lnvesti­ Jan. 30-Feb. 1. Investigative Course for Patrol Officers. North Central Texas g a ti on. Regional Criminal Justice Regional Police Academy. Arlington, Training Center. Modesto, Calif. Training Tex. Feb. 26-Mar. 2. Management of Police Jan. 29-Feb. 1. The Police Executive and Public Information. IACP. Phoenix, the Law. IACP. San Diego, Calif. Ariz. Jan. 29-Feb. 2. Advanced Arson Seminar. Mar. 3-31. Arrest and Firearms. Regional Calendar Nationa l Fire Academy-Denver FD Ar­ Criminal Justice Training Center. Mo­ son Bureau. Denver, Colo. desto, Cal if. Jan. 29-Feb. 2. Crowd and Spectator Mi.lr. 5-8. Crime and the Senior Citizen. Violence. San Francisco, Calif. IACP. Seattle, Wash. POLICE Jan. 29-Feb. 2. Seminar on Homicide and Mar. 5-8. Child Abuse. University of Jan. 3-5. Internal Affairs Investigation. Major Crime Scene Investigation. The Maryland. College Park, Md. Florida Institute for Law Enforce­ Traffic Institute. Evanston, Ill. Mar. 5-9. Sex Crimes Investigation Sem­ ment. Miami, Fla. Jan. 31-Feb. 2. Computer Planning. Theo­ inar. The Traffic Institute. Evanston, Jan. 8-19. Homicide Investigation. South­ rem Institute. Phoenix, Ariz. Ill. ern Police Institute. Louisville, Ky. Mar. 5-9. Police Corruption Issues. IACP. Jan. 8-Feb. 2. Principles of Police Man­ Feb. 1-3. Police Supervision and Person­ Phoenix, Ariz. agement. The Traffic Institute. Evan­ nel Evaluation. University of Alaska, Mar. 6-8. Investigative Course for Patrol ston, Ill. Fairbanks, Dept. of Continuing Officers. North Central Texas Regional Jan. 15-18. Developing Police Computer Studies. Fairbanks, Ak. Police Academy. Arlington, Tex. Capabilities. IACP. Huntington Beach, Feb. 1-May 4. Basic Police Academy. Mar. 9-June 8. Basic Police Academy. Calif. Regional Criminal Justice Training Regional Criminal Justice Training Jan. 15-18. Federal Grants Workshop for Center. Modesto, Calif. Center, Modesto, Calif. Law Enforcement Agencies. North­ Feb. 5-7. Weapon Selection: Body Ar­ Mar. 12-16. Police Officer Survival western University. Evanston, Ill. mor, Weapons and Ammunition. Course. The Traffic Institute. Evan­ Jan. 15-19. Physical Fitness Programs for IACP. Albuquerque, N. M. ston, Ill. Police. IACP. Albuquerque, N.M. Feb. 5-7. Zero Base Budgeting Workshop. Mar. 12-16. Police Planning and Research Jan. 15-19. Advan ced Officer Course. The Traffic Institute. Evanston, Ill. Methods. IACP. Washington, D. C. Regional Criminal Justice Training Feb. 5-9. Sex Crimes Investigation. Uni­ Mar. 12-23. Supervision of Police Traffic Center. Modesto, Calif. versity of Maryland . College Park, Md. Law Enforcement. The Traffic Insti­ Jan. 15-22. Microscopy Workshop. The Feb. 5-9. Management of the Investigative tute. Evanston, 111. Forensic Science Foundation. Modes­ Function. IACP. Albuquerque, N. M. Mar. 12-23. Criminal Investigation. to, Calif. Feb. 5-9. Protective Services : Meeting the Regional Criminal Justice Training Jan. 19-31. Federal Grants Workshop for Clandestine Threat. IACP. Hawaii. Center. Modesto, Calif. Law Enforcement Agencies. North­ Feb. 7-9. Crisis Management for Law Mar. 19-23. The Allocation and Distribu­ western University. Evanston, Ill. Enforcement Officers. Theorem I nsti­ tion of Police Manpower. IACP. Orlan­ Jan. 22-26. Developing Administrative tute. Las Vegas, Nev. do, Fla. Staff Skills. IACP. Anaheim, Calif. Feb. 8-9. Privacy and Security. Theorem Mar. 19-23. Police Budget Preparation Jan. 22-24. Seminar on Stress Manage­ Institute. Las Vegas, Nev. Workshop. The Traffic Institute. Evan­ ment in Law Enforcement. The Traffic Feb. 12-16. Police Records and Commu­ ston, Ill. Institute. Evanston, Ill. nications. IA CP. Dallas, Tex. Mar. 19-23. Workshop on Interpretation Jan. 22-26. Police Facilities Planning and Feb. 5-16. Administration of Police of Motor Vehicle Accident Data. The Design . IACP. Atlanta, Ga. Training. The Traffic Institute. Evan­ Traffic Institute. Evanston, Ill. Jan. 22-26. Operation and Management ston, 111. Mar. 19-23. Hostage Rescue Operations. of Police Training Programs. IACP. Feb. 13-16. Seminar on Legal Problems in IACP. New Orleans, Fla. Long Beach, Calif. Police Administration . Evanston, Ill. Jan. 22-29. Microscopy Workshop. The Feb. 19-Mar. 9. Police Instructor Training Mar. 26-30. Police Relations. IACP. Forensic Science Foundation. Los Course. The Traffic Institute. Evan­ Orlando, Fla. Angeles, Calif. ston, Ill. Mar. 26-30. Protective Services: Meeting Jan. 22-Feb. 2. Current Problems and Feb. 20-23. Collective Bargaining in Law the Clandestine Threat. New Orleans, Concepts in Police Administration. Enforcement Agencies Workshop. The La. Southern Police Institute. Louisville, Traffic Institute. Evanston, 111. Mar. 26-Apr. 6. On-Scene Accident Inves­ Ky. Feb. 21-23. Zero-Based Planning and tigation. The Traffic Institute. Evan­ Jan. 24-26. Planning a Productivity Sys­ Budgeting. Theorem Institute. Las ston, 111. tem. Theorem Institute. Phoenix, Ariz. Vegas, Nev. Mar. 29-31. Scientific Investigation of Jan. 28-Feb. 2. Burglary Investigation . Feb. 25-Mar. 2. Death Investigation. Crime. University of Alaska, Fairbanks Southeastern Law Enforcement Pro­ Southeastern Law Enforcement Pro­ Dept. of Continuing Studies. Fair­ grams. Athens, Ga. grams. Atlanta, Ga. banks, Ak. Alaska Justice Forum January 1979 Page 15 Apr. 2-3. Law Enforcement Data Process· May 14-18. Burglary. University of Mary­ Apr. 22-26. Trial Techniques. National ing. IACP. Orlando, Fla. land. College Park, Md. College of District Attorneys. Boston, Apr. 2-6. Jail Operations. Regional Crimi· May 14-25. Law Enforcement Training : Mass. nal Justice Training Center. Modesto, Managing and Instruction. Southern Apr. 29-May 4. Prosecutor's Office Ad­ Calif. Police Institute. Louisville, Ky. ministrator Course, Part 111. Houston, Apr. 9-11. Weapon Selection: Body May 14-25. Law Enforcement Super· Tex. Armor, Weapons and Ammunition. v1s10n. Regional Criminal Justice June 10-16. Executive Prosecutor Course. IACP. Philadelphia, Pa. Training Center. Modesto, Calif. National College of District Attorneys. Apr. 9-12. The Police Role in Chi ld May 17- 19. Check Forgery, Check Fraud Houston, Tex. Abuse and Neglect. IACP. Denver, and Investigation. University of Alas· July 8-28. Career Prosecutor Course. Colo. ka, Fairbanks, Fairbanks, Ak. Houston, Tex. Apr. 9-27. Technical Accident Investiga­ May 20-25. Supervising Police Personnel. tion. The Traffic Institute. Evanston, Southeastern Law Enforcement Pro­ JUDICIAL 111. grams. Atlanta, Ga. Jan. 28-31. Courts and Pretrial Services. Apr. 16-20. Advanced Officer. Regional May 20-June 1. The Management of Institute for Court Management. Den­ Criminal Justice Training Center. Mo­ Police Organization. Southeastern Law ver, Colo. desto, Calif. Enforcement Programs. Atlanta, Ga. Feb. 4-9. Records, Systems and Proce­ Apr. 16-20. Investigative Photography I. May 21-23. Assessment Center Method. dures. Institute for Court Manage­ University of Maryland. College Park, I ACP. Washington, D. C. ment. Atlanta, Ga. Md. May 21-25. Robbery and Burglary Con· Feb. 11- 13. Midyear Meeting of the Con­ Apr. 23-27. Investigative Photography II. trol Workshop. The Traffic Institute. ference of Chief Justices. National University of Maryland. College Park, Evanston, Ill. Center for State Courts. Atlanta, Ga. Md. May 21-25. Syndicated and Conspiratori· Mar. 9-10. National Center for State Apr. 23-26. The Police Executive and the al Crime. IACP. Washington, D. C. Courts Board of Directors. Santa Fe, Law. IACP. Salt Lake City, Utah. June 4-8. Developing Administrative Staff N. Mex. Apr. 23-27. Police Records and Commu­ Skills. IACP. Williamsburg, Va. Mar. 18-23. Management for Justice nications. IACP. Williamsburg, Va. June 4-8. Traffic Accident Investigation. System Supervisors. Institute for Apr. 23-27. Productivity I niprovement. Regional Criminal Justice Training Court Management. New Orleans, La. IACP. Orlando, Fla. Center. Modesto, Calif. Apr. 1-4. Consolidating Trial Courts. Apr. 23-May 4. Coroner Training. Region­ June 4 -15. Homicide Investigation. Institute for Court Management. Den­ al Criminal Justice Training Center. Southern Police Institute, Louisville, ver, Colo. Modesto, Calif. Ky. Apr. 1-6. Information Processing Sys­ Apr. 23-May 4. Supervision of Police June 1 1-14. Police Discipline. IACP. San tems. Institute for Court Management. Personnel. The Traffic Institute. Evan­ Francisco, Calif. Denver, Colo. ston, Ill. June 18-20. Internal Affairs. Southern Apr. 22-25. Management of Criminal Apr. 24-26. Investigative Course for Police Institute. Louisville, Ky. Cases. Institute for Court Manage­ Patrol Officers. North Central Texas June 18-22. Police Planning and Research ment. Denver, Colo. Regional Police Academy. Arli ngton, Methods. IACP. San Francisco, Calif. May 9-12. Strengthening the Executive Tex. June 18-22. Crowd and Spectator Vio­ Component of the Court. Institute for Apr. 26-July 20. Basic Police Academy. lence. IACP. Chicago, Ill. Court Management. Denver, Colo. Regional Criminal Justice Training June 25-29. Police Juvenile Procedures. June 10-15. Caseflow Management and Center. Modesto, Calif. IACP. Madison, Wis. Juror Utilization. Institute for Court Apr. 30-May 3. The Civil and Vicarious June 25-29. Police Facilities Planning and Management. Snowmass, Colo. Liability of Police. IACP. Williams· Design. IACP. Southfield, Mich. June 17-20. 26th National Institute on burg, Va. Crime and Delinquency. Hartford, Apr. 30-May 4. Crime Analysis. IACP. Conn. Canton, Ohio. June 24-28. Management: Principles and Apr. 30-May 4. Field Training Officer. PROSECUTION Effective Practices. Institute for Court Regional Criminal Justice Training_ Jan. 7-1 2. Prosecutor's Office Administra­ Management. Snowmass, Colo. Center. Modesto, Calif. tor Course, Part II. National College of June 24-29. Juvenile Justice Management D istrict Attorneys. Houston, Tex. -Basic Seminar. Institute for Court May 7-11. Vehicle Theft Investigation. Feb. 4-9. Organized Crime, Part I, Nation­ Management. Snowmass, Colo. Regional Criminal Justice Training al College of District Attorneys. Los June 15-16. National Center for State Center. Modesto, Calif. Angeles, Calif. Courts Board of Directors. Denver, May 7-11. Robbery. University of Mary­ Mar. 4-7. Prosecuting Drug Cases. Nation­ Colo. land. College Park, Md. al College of District Attorneys. May 7-18. On-Scene Accident I nvestiga­ Tampa, Fla. tion. The Traffic Institute. Evanston, Mar. 18-20. Prosecuting Crimes Against Ill. Property. National College of District CRIME PREVENTION May 14-17. Developing Police Computer Attorneys. New Orleans, La. June 4-29. Crime Prevention, Theory, Capabilities. IACP. Dallas, Tex. Apr. 1-5. Organized Crime, Part II. Na­ Practic and Management. National May 14-18. Hostage Rescue Operations. tional College of District Attorneys. Crime Prevention Institute. Louisville, IACP. Seattle, Wash. Houston, Tex. Ky. Page 16 Alaska Justice Forum January 1979 May 9-1 1. Crisis Intervention. R egional Feb. 21-22. Criminal J ustice Statistics COR RECTIONS ______Criminal Justice Training Center. Mo- Association. Statistical Analysis Cen­ Feb. 4-14. Workshop for Correctional desto,_ Calif. ter, Committee on Criminal Justice. Agency Trainers. National Institute of May 21-25 . Advanced Juvenile Hall Train- Boston, Mass. Corrections. Atlanta, Ga. ing. Regional Criminal Justice Training Apr. 23-27. Criminal Justice Fiscal Ad­ Feb. 5-9. Basic Juvenile H all. R egional Center. Modesto, Calif. ministration Techniques and Practices. Criminal Justice Training Center. Mo- June 4-5. Narcotics and Dangerous Drugs. Regional Criminal Justice Training desto, Calif. Regional Criminal Justice Training Center. Modesto, Calif. Feb. 5- 16 1 . Narcotics and Dangerous Center. Modesto, Calif. May 7-July 27. Administrative Manage­ Drugs. Regional Criminal Justice June 4-8. Training for Trainers. Regional ment Institute for Public Officials. Training Center. Modesto, Calif. Criminal Justice Training Center. Mo- University of Pittsburgh. Pittsburgh, Feb. 20-23. Family Counseling. Regional desto, Calif. Pa. Criminal Justice Training Center. Mo- June 4-15. Basic Correctional Academy. desto, Calif. Regional Criminal Justice Training GENERAL Feb. 26-Mar . 2. Correctional Anci l lary Center. Modesto, Calif. Feb. 2-3. Trial Evidence in Federal Program. Regional Criminal Justice June 11- 12. Reality Therapy. Regional Courts: A Clinical Study of Recent Training Center. Modesto, Calif. Criminal Justice Training Center Developments. ALI-ABA. Los Angeles, Mar. 4-14. Workshop for Correctional Modesto, Calif. Calif. Agency Trainers . National Institute of June 18-22. Correctional Ancillary Pro- Feb. 7-14. Midyear Meeting of the ABA. Corrections. Kansas City, Mo. gram. Regional Criminal Justice Train- Atlanta, Ga. Mar. 5-16. Basic Correctional Academy. ing Center. Modesto, Calif. Apr. 28-29. National Association of Pre­ Regional Criminal Justice Training trial Services, Business Meeting. Louis­ Center. Modesto, Calif. JUVENILE ville, Ky. Mar. 6-8. Training for Trainers. Regional Jan. 19-20. The Abused and Neglected Apr. 30-May 2. National Sym posium on Criminal Justice Training Center. Mo­ Child: Multi-Disciplinary Court Prac­ Pretrial Services. Louisville, Ky. desto, Calif. tice. Practicing Law Institute . New Mar. 12-13. Community Resources Utili­ York, N. Y. PRIVATE POLICE zation in Treatment Planning. Region­ Jan. 22-Mar. 16. Delinquency Control Mar. 3-24. Security Guard Baton Train­ al Criminal Justice Training Center. Institute. University of Southern Calif. ing. Regional Criminal Justice Training Modesto, Calif. Los Angeles, Calif. Center. (Saturdays) Modesto, Calif. Mar. 1 9-23. Correctional Ancillary Pro­ Feb. 2-3. The Abused and Neglected Mar. 29-30. Private Patrol Arrest Func­ gram. Regional Criminal Justice Train­ Child: Multi-Disciplinary Court Prac­ tion. Regional Criminal Justice Train­ ing Center. Modesto, Calif. tice. Practicing Law Institute . Chicago, ing Center. Modesto , Calif. Apr. 2-13. Basic Correctional Academy. Ill. Apr. 23-May 4. Private Patrol Academy. Regional Criminal Justice Training Feb. 4-8. Sixth National Conference on Region al Criminal Justice Training Center. Modesto, Calif. Juvenile Justice. National College of Center. Modesto, Calif. Juvenile Justice. San Diego, Calif. May 21-24. Security Management Work­ Apr. 23-27. Basic Juvenile Hall. Regional Mar. 25-29. Sixth National Conference on shop. Indiana University . St. Louis, Criminal J ustice Training Center. Mo­ Juvenile Justice. National College of Mo. desto, Calif. Juvenile Justice. Miami Beach, F la. MANAGEMENT Apr. 30-May 11. Basic Correctional Acad­ Apr. 2. Juvenile Court Law. Regional Feb. 7-9. Program Planning. Virginia emy. Regional Criminal Justice Train­ Criminal Justice Training Center. Mo­ Commonwealth University . Williams­ ing Center. Modesto, Calif. desto, Calif. burg, Va.

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