Opinion
Court of Appeals Nos. A-10393 A-10394.
November 23, 2011.
Appeal from the Superior Court, Third Judicial District, Palmer, Eric Smith, Judge, Trial Court Nos. 3PA-06-3166 Cr 3AN-05-8739 Cr.
G. Blair McCune, Wasilla, for the Appellant. Tamara E. de Lucia, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION
Viktor I. Natekin appeals his convictions for attempted first-degree sexual assault and (completed) second-degree sexual assault. He contends that the superior court violated his right to a public trial by holding two "confidential" hearings during his trial. But, as we explain in this opinion, (1) Natekin has failed to show that these "confidential" hearings were, in fact, closed to the public, and (2) Natekin's attorney did not object to the manner in which the superior court conducted these hearings.
Natekin also contends that the superior court violated his right to due process of law by allegedly encouraging Natekin's wife to claim the privilege against self-incrimination rather than testify at Natekin's trial. For the reasons explained in this opinion, we conclude that the superior court did not "encourage" Natekin's wife to assert her privilege against self-incrimination. Rather, the court advised Natekin's wife of the possibility that she might be asked questions that would call for self-incriminatory answers, advised her of the constitutional protection against self-incrimination, and allowed her to seek the advice of an attorney.
Natekin additionally contends that the trial judge committed error by precluding Natekin's attorney from cross-examining the victim about her possible drug use on the day that she was scheduled to appear, but failed to appear, as a witness at Natekin's trial. As we explain here, we conclude that the trial judge could properly preclude the defense attorney from cross-examining the victim on this subject because it was a collateral issue of little relevance.
Finally, Natekin argues that the double jeopardy clause of the Alaska Constitution requires merger of his convictions for attempted first-degree sexual assault and (completed) second-degree assault. We agree with Natekin, and we therefore direct the superior court to merge these two counts, and to re-sentence Natekin.
A brief description of the State's case against Natekin
On December 26, 2006, 17-year-old J.M. was visiting her friend Dubravka Stewart. Stewart lived in the same apartment complex as Lilly Zidrashko, another of J.M.'s friends. Because Zidrashko was in the process of moving out of the apartment complex, J.M. went over to Zidrashko's apartment to retrieve some belongings that she had left there.
When J.M. arrived at Zidrashko's apartment, she found 37-year-old Viktor Natekin (who was also friends with J.M.) and another man, Anatoly Gravolnik. Natekin and Gravolnik were there to help Zidrashko move, but when J.M. arrived, no actual "moving" was taking place. Instead, Zidrashko, Natekin, and Gravolnik were in the kitchen dancing, eating, and drinking. All three of them were "very intoxicated."
J.M. collected her belongings and then used Zidrashko's bathroom. When she exited the bathroom, Natekin grabbed her, dragged her into the bedroom, shut the door, and pulled her to the floor. Natekin got on top of J.M., and then he started both kissing and strangling her. While this was happening, J.M.'s cell phone rang. She tried to answer it, but Natekin grabbed the phone and threw it against the wall.
Natekin ripped J.M.'s shirt open, and then he kissed and sucked on her breasts. J.M. was screaming and crying and pleading with Natekin to stop. She hit him and kicked him in an effort to get him off of her, but Natekin sat on her chest and pinned her arms down. He unbuttoned her pants and stuck his hand down her pants, inside her underwear, but he did not penetrate her genitals. Natekin put his hands over J.M.'s face to stifle her screams, and she drifted in and out of consciousness from lack of oxygen.
Natekin then took his belt off and unzipped his pants. He requested that J.M. give him oral sex. Eventually, J.M. told Natekin that she would do what he wanted, and he got off of her. At this point, J.M.'s friend Dubravka Stewart called her on her cell phone. J.M. grabbed the cell phone and was able to ask for help before Natekin again seized the phone and threw it aside.
Natekin now grabbed J.M. by the hair and throat, and jerked her backwards. Stewart, meanwhile, hastened to the apartment, went inside, and kicked in the bedroom door. When Stewart entered the room, Natekin got off of J.M., and J.M. was able to run out of the room. The entire attack lasted approximately 30 to 40 minutes.
Stewart took J.M. back to her apartment, and then Stewart called the police. Natekin was arrested and charged with one count of attempted first-degree sexual assault ( i.e., attempted non-consensual sexual penetration) and one count of second-degree sexual assault ( i.e., non-consensual sexual contact).
The facts relating to three claims on appeal:
(1) Natekin's claim that the superior court violated his right to a public trial when the court held two "confidential" hearings to investigate the reasons why J.M. failed to appear at the scheduled time to testify at Natekin's trial;
(2) Natekin's claim that he should have been allowed to cross-examine J.M. regarding the possibility that she was illegally using drugs on the day that she failed to appear; and
(3) Natekin's claim that the superior court improperly encouraged Natekin's wife to claim the privilege against self-incrimination rather than submit to questioning about allegations that she offered money to J.M. if J.M. would promise not to testify against Natekin
Natekin's trial in the superior court began on November 13, 2007. J.M. was subpoenaed to appear and give testimony on the morning of November 15th, but she failed to appear. When the lunch recess arrived and J.M. still had not appeared, the prosecutor asked the court to issue a material witness warrant for her arrest. The prosecutor also asked that, once J.M. was brought to court, the court hold a hearing — outside the jury's presence — to investigate the reasons why J.M. failed to come to court.
The trial judge, Superior Court Judge Eric Smith, issued the requested material witness warrant, and J.M. was picked up that same evening.
The next morning, J.M. was brought to court, and Judge Smith held a hearing to investigate why J.M. had not come to court the previous day. As just explained, the prosecutor had asked Judge Smith to hold this hearing outside the presence of the jury, but had not asked Judge Smith to exclude the public.
At the beginning of the hearing, the following exchange took place between the prosecutor and Judge Smith:
Prosecutor: Your Honor, . . . before you continue, are we marking this [proceeding] "confidential" or "sealed"?
The Court: It would be "confidential". "Sealed" means I have to kick everybody out of here.
Prosecutor: All right. . . . We'd ask . . . that [the hearing] be confidential.
The Court: Yes. This part of the hearing will be confidential.
At the hearing, J.M. stated that she had been contacted by both Natekin's wife and Natekin's brother, both of whom offered her money if she did not testify against Natekin. According to J.M., Natekin's brother flew in from Seattle and gave her $300 just for meeting with him. Later, Natekin's wife met with J.M. and offered to pay her between $10,000 and $15,000 if she did not testify at Natekin's trial.
(This appears to have been an unusual instance of witness bribery because, according to J.M.'s testimony, Natekin's wife actually wanted J.M. to sign a contract stating that, in exchange for the money, J.M. promised not to attend any of the court hearings in Natekin's case.)
J.M. testified that Natekin's wife was going to wait outside the courthouse on the morning of November 15th ( i.e., the morning that J.M. was scheduled to testify). Natekin's wife would have the promised money, and J.M. was supposed to "[choose] to walk in . . . and testify, or take the money and leave." J.M. decided that she would not take the money, but she was also scared to testify, and she did not want to see Natekin, so she just decided not to come to court.
After J.M. gave this account, Judge Smith and the two attorneys discussed whether J.M. should be allowed to repeat this testimony when she testified in front of the jury. Natekin's attorney asked for time to investigate J.M.'s allegations. The judge and the parties then discussed what the defense investigator would be allowed to reveal to Natekin's wife (or other witnesses) in connection with the investigation. During this discussion, Judge Smith provided further clarification of what he meant when he declared the hearing to be "confidential":
Defense Attorney: [The prosecutor]believes that . . . my investigator would be hindering prosecution if I [or the investigator] were to call my client's wife and tip her off that the troopers are looking for her, and that she's being investigated. So I'm somewhat hampered in my ability to . . . try to contact these people. . . . That's another issue that we would need to address, as well — whether or not the court could [validly] order my client not to talk to his wife, and not to tell her she's being investigated. . . .
The Court: I can [do that]; this [hearing] is confidential. I can certainly order everybody in the courtroom not to talk about it. . . . Your client got the information in a confidential proceeding. . . . And, like anybody else in the courtroom, he would be precluded from releasing that information from . . . confidential proceedings without authorization from the court. So . . . [J.M.] can't tell her mom, can't tell her boyfriend, can't tell anybody what's going on in here. [And your client] is in no different position from [her], with respect to the manner in which the information was released in this courtroom. It's got nothing to do with his rights in any way, shape, or form. It's got everything to do with the fact that everybody in this room can't talk about it.
After this discussion concerning the defense attorney's need for time to investigate J.M.'s allegations, Judge Smith stated that he wanted time to contemplate J.M.'s testimony, and to research the admissibility of this testimony. The court and the parties agreed to reconvene later that day to discuss the matter further.
(We note that Judge Smith's order prohibiting disclosure of J.M.'s allegations of bribery has not been challenged in this appeal, and we express no opinion on the validity of that order. Two problematic aspects of Judge Smith's order are discussed in the accompanying footnote.)
With regard to Judge Smith's decision to prohibit the defense attorney and her investigator from revealing the allegations of attempted bribery while they prepared Natekin's defense, we note that, normally, a court must not throw a veil of confidentiality over information that a criminal defendant needs in order to prepare their defense to the government's case.
In Braham v. State, 571 P.2d 631 (Alaska 1977), the State's primary witness against the defendant was working as an undercover informant in other cases. The question was whether the State could keep the witness's status as an undercover informant confidential, to prevent premature disclosure of ongoing investigations. The supreme court held that this information could not be kept confidential if it was relevant to Braham's defense of the criminal case:
Disclosure [was] . . . required if the judge's in camera inspection showed that the material was relevant to the defense[,] whether or not the prosecutor had demonstrated that discovery would be inconsistent with [law] enforcement or protection efforts. In [this] circumstance, the state must decide between continuing to prosecute, while incurring the problems posed by disclosure, and terminating the prosecution in order to maintain the material's secrecy.
Braham, 571 P.2d at 643. See also our discussion of this aspect of Braham in Sledge v. State, 763 P.2d 1364, 1368-69 (Alaska App. 1988).
Here, although Natekin's attorney was informed of J.M.'s allegations of attempted bribery, Judge Smith prohibited the defense attorney from revealing this information when she investigated the truth of, and the potential responses to, J.M.'s allegations. This restriction on the defense attorney's use of the information potentially violated Braham.
Second, with regard to Judge Smith's order prohibiting J.M. from discussing the alleged attempted bribery with anyone else, we note that there is a difference between (1) prohibiting people from talking about information they learned at a closed hearing, and (2) prohibiting people from talking about information they already knew, simply because they testified about this information (or otherwise spoke about it) at a closed hearing. Compare Alaska Criminal Rule 6(l), which guarantees grand jury witnesses the right to discuss their own testimony, even though grand jury proceedings are secret.
The follow-up hearing on J.M.'s allegations of attempted bribery was held that afternoon. When the hearing convened, no mention was made of whether this follow-up hearing was likewise confidential. Moreover, as we are about to explain in more detail, the record shows that Judge Smith allowed members of the public to enter and remain in the courtroom during the hearing. One of these people turned out to be J.M.'s mother — a person that Judge Smith specifically said should not be told about J.M.'s allegations. ("[J.M.] here can't tell her mom . . . [about] what's going on in here.")
At the very beginning of this second hearing, Judge Smith told the parties that he had decided to adhere to his earlier tentative ruling: the prosecutor would not be allowed to introduce evidence concerning the alleged bribery attempt, because this information "[was] more prejudicial than probative". However, Judge Smith told the defense attorney that if she wanted to cross-examine J.M. about this allegation, she could.
The defense attorney replied that she potentially might want to cross-examine J.M. about this matter if, upon investigation, it appeared that the bribery allegation was untrue. The judge and the parties engaged in a discussion of exactly what testimony J.M. might give — and exactly what questions the defense attorney might ask concerning her failure to show up for trial the previous day — that might open the door to full litigation of J.M.'s bribery allegation.
At the end of this discussion, the jurors were summoned to the courtroom. Judge Smith informed the jurors that "a rather significant legal issue [had] popped up", and that the court "[couldn't] proceed with any testimony, or let the parties proceed with any testimony, until . . . that legal issue [was] resolved". The judge then excused the jurors until the following Tuesday.
After the jurors left the courtroom, the judge and the attorneys engaged in a lengthy discussion of whether the court had the authority to bar the defense attorney and her investigator from talking to witnesses about J.M.'s bribery allegations, given the defense attorney's need to investigate those allegations. Toward the end of this discussion, the defense attorney referred to "this confidential hearing" — which prompted the prosecutor to interrupt the discussion:
Prosecutor: Your Honor, . . . [the defense attorney] just said the word "confidential". I don't know if there's a way to go back and mark this [proceeding], once we left the jury, . . .
The Court: Yeah, we can deem the hearing ["confidential"] — everything in [this] hearing before and after [the jury was present in the courtroom].
The prosecutor then alerted Judge Smith that a person sitting in the courtroom needed to leave:
Prosecutor: The female there . . . needs to be excused. I don't know who she is. And she's not part of — [I'm speaking of] the blonde.
The Court: Okay. I take it that [she is] — Is that [J.M.'s] mom?
Defense Attorney: Yes.
The Court: Okay. Ma'am, just so you're clear [on this]; they may have [already] told you. This is a confidential proceeding — meaning you can't talk to anybody, except your daughter, about what's going on.
J.M.'s Mother: I did not know that.
The Court: Okay. Well, you do now.
J.M.'s Mother: (indiscernible)
The Court: Pardon?
J.M.'s Mother: (indiscernible)
The Court: Well, tell your ride [ i.e., another woman who apparently had recently entered the court room to retrieve J.M.'s mother] that she shouldn't talk about it either — [although] she didn't get much information.
Following a lengthy debate about whether J.M. should be remanded to custody or released upon her promise to show up for trial (J.M. was, in fact, released), Judge Smith recessed the proceedings until the following Monday afternoon — with the expectation that, by that time, the defense attorney would know whether further investigation was needed, or whether the trial could recommence on Tuesday.
When the parties assembled in court for the status hearing on Monday afternoon, November 19th, Natekin's attorney told Judge Smith that she was willing to have the trial recommence on Tuesday morning. She then told Judge Smith that there was "[one] other issue".
The defense attorney informed Judge Smith that her investigator had spoken to Natekin's wife, Yelena Natekina, about her contacts with J.M. The defense attorney stated that "[Ms. Natekina's] answers to our questions were not incriminating of her", so the defense attorney had subpoenaed Ms. Natekina to appear and testify at the trial.
Nevertheless, the defense attorney wanted Judge Smith to be aware of the possibility that the prosecutor might cross-examine Natekina in such a way as to raise Fifth Amendment concerns. The defense attorney asked Judge Smith if he wanted to resolve the Fifth Amendment issue on a question-by-question basis while Natekina was on the stand, or if (instead) he wanted to try to resolve the Fifth Amendment issue before Natekina took the stand.
In response, Judge Smith asked the defense attorney if she planned to ask Natekina questions relating to the bribery allegation. When the defense attorney answered "yes", Judge Smith stated:
The Court: In that case, I think I have to advise her [of her Fifth Amendment rights] ahead of time. . . . If you are going to ask questions about her contacts with the victim, then [the prosecutor] certainly has the right to inquire [about matters] . . . that will [potentially] expose her to . . . criminal liability. . . . And I would be remiss in not warning her . . . [that], given [the] allegations [of attempted bribery], she is subject to criminal liability. . . . And then we will have to address [the issues of] whether . . . she wants to answer any questions, and whether she wants to talk to an attorney first.
A few minutes later, Judge Smith asked the defense attorney if, given her intention to examine Natekina about her contacts with the victim, she had any objection to allowing the prosecutor to question J.M. about the alleged bribery attempt when J.M. took the stand the next morning. The defense attorney responded, "I can't think of one."
Accordingly, the next day, when J.M. testified in front of the jury, her testimony included an account of the bribery attempt, and Natekin's attorney cross-examined J.M. about this allegation.
Technically, the crime described by J.M. was not an attempted "bribery", but rather the completed crime of first-degree interference with official proceedings under AS 11.56.510(a)(2)(A). This offense is committed when someone "offers to confer . . . a benefit . . . upon [any] witness with intent to improperly influence that witness". As defined in AS 11.56.900(1), the phrase "improperly influence a witness" includes "caus[ing] or induc[ing] a witness to . . . unlawfully withhold testimony in an official proceeding".
Before beginning her cross-examination of J.M., Natekin's attorney sought permission to question J.M. about whether she was using drugs on November 15th ( i.e., the day she was supposed to come to court and testify). Judge Smith denied the defense attorney's request.
Later in the trial, when Yelena Natekina arrived in court (pursuant to the defense attorney's subpoena), Judge Smith informed her of the bribery allegation, and he warned her that she would be asked, under oath, about that alleged crime. Judge Smith also apprised Natekina of the potential penalties she faced if she were to be convicted of either witness tampering or perjury. Judge Smith then informed Natekina of her Fifth Amendment right not to incriminate herself, and he asked if she would like to speak to an attorney. Natekina decided to speak to an attorney.
Following a consultation, Ms. Natekina's attorney informed Judge Smith that Natekina "[was] going to waive her Fifth Amendment rights against the advice of counsel." However, the attorney had another opportunity to speak with Natekina during the lunch break that followed — and when the court reconvened, the attorney announced that Natekina had changed her mind, and that she now wished to assert her Fifth Amendment rights. As a consequence, when Natekina took the stand, her testimony was limited to a description of her husband's English language skills.
Natekin's claim that the superior court violated his right to a public trial when the court held the two hearings to investigate the reasons why J.M. failed to appear at the scheduled time to testify at Natekin's trial
Natekin argues on appeal that Judge Smith violated his right to a public trial when the judge held the two hearings on November 16th to inquire into J.M.'s allegation of the offered bribe. Natekin contends that, because Judge Smith referred to these hearings as "confidential", the public must have been excluded from the courtroom. Natekin argues that there was no compelling reason to exclude the public from these hearings, and therefore Judge Smith's action unlawfully abridged Natekin's right to a public trial.
Natekin concedes that his trial attorney never objected to the judge's action. This being so, Natekin must show that the judge's action constituted plain error.
In other words, Natekin must show that the record of these proceedings discloses an obvious error.
See, e.g., Laughlin v. Laughlin, 229 P.3d 1002, 1005 (Alaska 2010); Bradley v. State, 197 P.3d 209, 213 (Alaska App. 2008).
Generally, when a claim of plain error is raised on appeal, there is no dispute about what happened in the trial court, as an historical matter. Instead, the question is whether, given what happened (or failed to happen), the proceedings were marred by obvious error. But in Natekin's case, there is a question about what actually happened in the trial court. Specifically, the record does not plainly show that the two challenged hearings were in fact closed to the public.
The language used by Judge Smith and the prosecutor to describe the two hearings is somewhat confusing. As we explained in the preceding section of this opinion, the prosecutor initially asked Judge Smith simply to hold the proceedings outside the presence of the jury. But when the first hearing was convened, the prosecutor asked Judge Smith if the hearing was going to be treated as "confidential" or "sealed". Judge Smith replied that the hearing would be "confidential" — because, if he ordered the proceeding to be "sealed", "[he would] have to kick everybody out of here."
The terms "confidential" and "sealed" are not normally employed in Alaska to describe court proceedings; rather, they are employed to describe court records. See Administrative Rule 37.5(c) and Appellate Rule 512.5.
In contrast, " in camera" or "closed" is the term normally employed to describe "[judicial] proceedings that are not open to the public — for example, proceedings held in an anteroom, or in the judge's chambers, or in the courtroom after the public is asked to leave." Taylor v. State, 977 P.2d 123, 124 n. 1 (Alaska App. 1999).
Based on Judge Smith's remark about "hav[ing] to kick everybody out", it appears that he was using the term "sealed" as a synonym for "closed to the public" or " in camera". This suggests that when Judge Smith declared that the hearing was not "sealed", but was instead "confidential", he was referring to a more limited form of privacy — something short of closing the courtroom to the public.
This interpretation is bolstered by the fact that the judge never asked anyone to leave the courtroom. In fact, during the second of the two hearings, Judge Smith allowed a woman who was unknown to him — and who turned out to be J.M.'s mother — to remain in the courtroom during the proceeding.
Even though Judge Smith had previously told J.M.(during the first hearing) that she was not allowed to speak to her mother about any of these matters, Judge Smith's reaction was fairly subdued when he discovered that J.M.'s mother had been sitting in the courtroom while these matters were discussed at the second hearing. The judge simply informed J.M.'s mother that she was now likewise forbidden to speak of these matters to other people.
Moreover, the record shows that Judge Smith took no action when another woman — likewise unknown to him — entered the courtroom in the middle of the second hearing and listened to the proceedings for a short time. (This woman was J.M.'s mother's "ride".)
An appellant ( i.e., the party seeking to overturn a lower court judgement) must present the appellate court with a record that affirmatively demonstrates, as a factual matter, that error occurred. See Yarbor v. State, 546 P.2d 564, 568 (Alaska 1976); Beltz v. State, 895 P.2d 513, 520 (Alaska App. 1995). As stated by the Ninth Circuit in the pre-statehood case of Hemple v. Raymond, 144 F. 796, 800 (9th Cir. 1906), "[t]he burden is upon the [appellant] to show clearly and affirmatively from the record itself the facts constituting error. This rule is so firmly established as to require no citation of authorities."
See also R.L.R. v. State, 487 P.2d 27, 45 (Alaska 1971), where the supreme court rejected an appellee's claim of harmless error because the record did not show what happened after the trial court made its erroneous ruling.
In Natekin's case, no one raised a "public trial" issue in the superior court. It is perhaps conceivable that Judge Smith took measures to close the courtroom to the public. But the record in front of us suggests that no such measures were taken — and that Judge Smith confined himself to ordering any people who were present not to reveal what they heard in court. Because the record is no better than ambiguous on this issue of fact, and because Natekin (as the one claiming error) bears the burden of persuasion, we must resolve Natekin's claim of error by adhering to the presumption of regularity: the presumption that court proceedings have been conducted in accordance with the law unless the contrary is affirmatively demonstrated.
See Grandstaff v. State, 171 P.3d 1176, 1187 (Alaska App. 2007); Jerrel v. State, 851 P.2d 1365, 1372 (Alaska App. 1993).
For these reasons, we reject Natekin's argument that Judge Smith violated his right to a public trial.
Natekin's claim that he should have been allowed to cross-examine J.M. regarding the possibility that she was illegally using drugs on the day that she failed to appear
When J.M. took the stand at Natekin's trial, she testified(without objection) that she had decided not come to court on Thursday, November 15th (the day she was initially scheduled to testify), and that her decision was influenced, in part, by conversations she had with Natekin's brother and Natekin's wife.
J.M. explained that both Natekin's brother and Natekin's wife had contacted her in advance of the trial: they told her that Natekin was sorry for what he did, and they offered her money if she declined to testify against Natekin. According to J.M., Natekin's wife promised her that she would be waiting in a car in the courthouse parking lot on the morning of November 15th, ready to give J.M. the money if J.M. left without testifying.
J.M. testified that she spoke by telephone with Natekin's wife early on the morning of November 15th, and that she told Natekin's wife that she could not take the money. However, J.M. did not know if Natekin's wife still intended to be there at the courthouse when J.M. arrived. J.M. was "scared to come, and nervous", so she decided not to come.
This portion of J.M.'s testimony occurred at the end of the prosecutor's direct examination. Just before the defense attorney began her cross-examination of J.M., she asked for a sidebar conference with Judge Smith. In this sidebar conference, the defense attorney sought permission to cross-examine J.M. about her use of illegal drugs.
The defense attorney argued that there was evidence that J.M. was using drugs on Thursday, November 15th. This evidence, the defense attorney asserted, was that (1) J.M. was arrested at a friend's house on Thursday evening (after the court issued the material witness warrant), (2) drugs were found at that house, and (3) J.M. appeared to be under the influence of something "on Thursday and Friday". (Friday was the day when Judge Smith held the two hearings into J.M.'s reason for not appearing in court on Thursday morning to testify).
The defense attorney suggested that it was proper to cross-examine J.M. about her possible drug use because this might have been the true reason why J.M. decided not to come to court on Thursday the 15th (rather than any attempted bribery on the part of Natekin's wife). The prosecutor responded that the defense attorney's offer of proof was insufficient to establish the relevance of any potential drug use. According to the prosecutor, the defense attorney's offer of proof suggested, at best, that J.M. might have been using drugs on the night of Thursday, November 15th — whereas the question was why J.M. decided not to come to court on Thursday morning, more than a half-day earlier.
Judge Smith agreed with the prosecutor:
The Court: Exactly. She was found at the house at ten o'clock at night, where drugs were in the house . . . (indiscernible / inaudible). [To the defense attorney:] [Your] objection is noted for the record. I'm not going to let you do it.
On appeal, Natekin argues that Judge Smith committed error by not allowing Natekin's trial attorney to cross-examine J.M. about her potential drug use.
Trial judges have the discretion to limit the cross-examination of a witness if the proposed interrogation would be only marginally relevant, or would have the potential to harass the witness or to confuse the issues. See, e.g., Mustafoski v. State, 954 P.2d 1042, 1047-48 (Alaska App. 1998) (holding that the trial judge did not abuse his discretion when he limited the cross-examination of a witness concerning the witness's drug use). Here, Judge Smith had several plausible reasons for precluding Natekin's attorney from conducting the proposed cross-examination.
First, the evidence that J.M. actually used drugs at any time was highly speculative. The only undisputed evidence was that drugs were found at the house where J.M. was arrested on Thursday night.
In her offer of proof, the defense attorney asserted that J.M. "physically appeared to be using [drugs] on Thursday and Friday", but there appears to be nothing in the record to support the defense attorney's characterization.
In Natekin's brief to this Court, he suggests that histrial attorney's assertion that J.M. was "using" on Thursday morning is supported by the evidence that J.M. acted belligerently toward the prosecutor and the State's witness coordinator on Friday, November 16th (after J.M. was arrested on the material witness warrant and had spent Thursday night in jail). But there is nothing in the record to suggest that this belligerence was due to the lingering effects of drug use some thirty-six hours earlier. To the contrary, J.M.'s belligerence appears to be adequately explained by the fact that the prosecutor strenuously urged Judge Smith to keep J.M. in jail over the weekend, rather than let her return home to her mother.
Second, even assuming that J.M. used drugs on the evening of Thursday, November 15th, this would not be particularly relevant to the issue of why J.M. failed to appear in court to testify early Thursday morning.
And third, even assuming that J.M. was using drugs as early as Thursday morning, this would seemingly have little bearing on the question of whether her account of the attempted bribery was true or not. J.M. testified that she was afraid to confront Natekin in court, and that she was also influenced by her conversations with Natekin's wife and brother. If J.M. did indeed use drugs on Thursday morning, this would not prove that J.M.'s testimony about these matters was false. It seems just as plausible that, if J.M. took drugs on Thursday morning, she did so because of these circumstances.
For these reasons, we conclude that Judge Smith acted within his proper discretion when he prohibited the defense attorney from questioning J.M. about this purported drug use.
Natekin's claim that the superior court improperly encouraged Natekin's wife to claim the privilege against self-incrimination rather than submit to questioning about allegations that she offered money to J.M. if J.M. would promise not to testify against Natekin
As we explained earlier in this opinion, Natekin's trial attorney subpoenaed Natekin's wife, Yelena Natekina, to testify at trial. The defense attorney's announced purpose was to ask Natekina about her contacts with J.M.
Based on her investigator's interview with Natekina, the defense attorney assumed that Natekina would deny that she had attempted to bribe J.M. However, the defense attorney acknowledged that, when the prosecutor cross-examined Natekina, the prosecutor would probably ask questions that might require Natekina to give self-incriminating answers. For this reason, the defense attorney asked Judge Smith if he wished to address the self-incrimination issue before Natekina took the stand or, instead, wait until Natekina interposed the privilege against self-incrimination in response to one or more specific questions.
Not surprisingly, Judge Smith decided to resolve this issue before Natekina took the stand. As this Court noted in David v. State, 28 P.3d 309, 314 (Alaska App. 2001), Alaska Evidence Rule 512(b) directs trial judges to conduct jury trials so that, to the extent practicable, no person is forced to claim the benefit of an evidentiary privilege in front of the jury.
(We also note that "[i]t is improper for an attorney to present a witness to the jury if the attorney knows that this witness will assert a valid privilege to refuse to answer questions." Copeland v. State, 70 P.3d 1118, 1125 (Alaska App. 2003).)
An attorney from the Office of Public Advocacy was appointed to represent Natekina, and both this attorney and Natekina were scheduled to appear in court on the morning of November 20th. While Judge Smith and the parties were waiting for their arrival, Judge Smith told the prosecutor and the defense attorney that he intended to warn Natekina that the State was investigating allegations that she attempted to bribe a witness ( i.e., J.M.), and that if Natekina took the stand and falsely denied the bribery attempt under oath, she could additionally be prosecuted for perjury. After Natekina received these warnings, she would then be given time to confer with her attorney. The defense attorney's only response to Judge Smith's remarks was, "Okay".
About a half hour later, Natekina arrived in court. Addressing Natekina through an interpreter (because her native tongue was Russian), Judge Smith informed her that allegations had been made that she tried to get J.M. not to testify against her husband, and that this was a very serious crime — carrying a penalty of up to 10 years in jail and a fine of $100,000. Judge Smith also warned Natekina that if she denied these allegations under oath, and they were later proved to be true, she might be accused of perjury. Natekin's defense attorney made no objection to the judge's remarks.
Judge Smith misdescribed this offense as "witness tampering", when in fact the alleged conduct would constitute the crime of interference with official proceedings under AS 11.56.510. However, Judge Smith's description of the maximum penalty was correct: interference with official proceedings is a class B felony, and the maximum penalty for a class B felony is 10 years' imprisonment. See AS 11.56.510(b) and AS 12.55.125(d).
Judge Smith then explained to Natekina that he was telling her these things because, under the United States Constitution, she had the right not to say anything that might incriminate her. The judge then asked Natekina, "So my question for you is: . . . would [you] like to speak with a lawyer, to decide whether you want to protect yourself under the Constitution?" Natekina answered "yes".
The court then recessed for thirty minutes to allow Natekina to consult with her attorney. When court reconvened, Natekina's attorney told Judge Smith that, against the attorney's advice, Natekina had decided to waive her Fifth Amendment privilege and testify at her husband's trial.
Because, by then, it was 12:30 in the afternoon, Judge Smith recessed the trial for lunch. He told the parties to be back in court at 1:30 p.m..
As it turned out, court did not reconvene until close to 2:00 p.m.. At that time, Ms. Natekina's attorney asked permission to address the court again. The attorney told Judge Smith that, during the recess, he and Natekina had had the opportunity to discuss the matter further — and that Natekina had now decided to assert her Fifth Amendment privilege and refuse to testify about her contacts with J.M.
Again, the defense attorney offered no objection to any of this. Instead, she asked Judge Smith if she could still call Natekina to the stand for a limited purpose — to testify about her husband's English language skills. Natekina's attorney told Judge Smith that questions of that nature would pose no Fifth Amendment problem, so Judge Smith allowed the defense attorney to call Natekina to the stand for that limited purpose.
On appeal, Natekin contends that Judge Smith's explanations and questions to Natekina were coercive — designed to frighten her into asserting her Fifth Amendment privilege. Natekin concedes that his trial attorney made no objection to anything Judge Smith said — and that, therefore, he must demonstrate that Judge Smith's remarks constituted plain error.
Under some circumstances, a judge's warning that a witness faces self-incrimination can be worded in such a coercive or threatening manner that it "effectively [drives] that witness off the stand" — thus violating the defendant's due process rights. Webb v. Texas, 409 U.S. 95, 97-98; 93 S.Ct. 351, 353 (1972). Natekin suggests that his case is analogous to Webb, but the facts of Webb are substantially different from the facts of Natekin's case.
In Webb, the trial judge singled out the defendant's only witness and gave that witness a lengthy admonition about perjury. The judge told the witness, "If you take the witness stand and lie under oath, [I] will personally see that your case goes to the grand jury and you will be indicted for perjury and . . . you would [likely] get convicted of perjury and that [punishment] would be stacked onto what you have already got. . . ." Id., 409 U.S. at 96, 93 S.Ct. at 352. The judge added that any perjury conviction would also be held against the witness when he was considered for parole. The judge then declared that the defense witness could testify if he wanted to, but the judge wanted him to understand the "hazard" he was undertaking. Ibid.
The defense attorney in Webb objected to the judge's comments, and indicated that he still planned to call the witness to testify. The judge responded, "Counsel, you can state the facts, nobody is going to dispute it. Let him decline to testify." Ibid. The witness then decided not to testify.
The United States Supreme Court held that "the judge's lengthy and intimidating warning" likely "exerted such duress on the witness' mind as to preclude him from making a free and voluntary choice whether or not to testify" — thus depriving the defendant of his due process rights. Id., 409 U.S. at 97-98, 93 S.Ct. at 353.
Although trial judges are forbidden from engaging in the coercive or threatening tactics described in Webb, judges are permitted to furnish witnesses with an appropriate explanation of their Fifth Amendment rights, and an explanation of the danger of incrimination that the witness faces. As the Ninth Circuit stated in United States v. Vavages, 151 F.3d 1185, 1189 (9th Cir. 1998), "A defendant's constitutional rights are implicated only where the . . . trial judge employs coercive or intimidating language or tactics that substantially interfere with a defense witness' decision whether to testify." There is no violation of the constitution when a judge provides a factual, non-threatening explanation of the potential consequences of a witness's testimony, thus allowing the witness to make their own decision about testifying, in consultation with their counsel.
See United States v. Santiago-Becerril, 130 F.3d 11, 26 (1st Cir. 1997) ("A judge is entitled to make sure a witness understands her Fifth Amendment rights."); United States v. Davis, 974 F.2d 182, 187 (D.C. Cir. 1992) (noting that it is not necessarily improper for a judge to warn witnesses about the dangers of perjury).
See, e.g., United States v. Jaeger, 538 F.3d 1227, 1232 (9th Cir. 2008); United States v. George, 363 F.3d 666, 670-71 (7th Cir. 2004).
Given J.M.'s allegations of attempted bribery, it was obvious that Natekina faced a substantial danger of self-incrimination if she took the stand and answered the questions the defense attorney intended to ask — questions about Natekina's contacts with J.M.. Indeed, this self-incrimination problem was so obvious that the defense attorney brought the problem to Judge Smith's attention and asked the judge how he wished to proceed.
Judge Smith's statements and questions to Natekina and her attorney do not appear to be coercive or threatening, nor does the record suggest that Judge Smith impermissibly influenced Natekina's decision to invoke her privilege against self-incrimination. Although Judge Smith obviously was attempting to apprise Natekina and her attorney of the seriousness of Natekina's situation, the judge made no predictions about the likelihood or unlikelihood that Natekina would actually suffer criminal penalties if she testified about her contacts with J.M..
We note that the record affirmatively suggests a lack of coercion — because even after Natekina heard Judge Smith's explanation, and even after Natekina's attorney advised her to assert her Fifth Amendment privilege, Natekina nevertheless decided to testify. She changed her mind, and decided to assert her privilege, only after her attorney urged her to reconsider during the extended lunch break.
For these reasons, we conclude that Judge Smith did not improperly encourage Natekina to claim her privilege against self-incrimination.
Natekin's claim that his convictions for attempted first-degree sexual assault and (completed) second-degree sexual assault should be merged because of Alaska's constitutional guarantee against double jeopardy
The jury found Natekin guilty of both attempted first-degree sexual assault ( i.e., attempted non-consensual sexual penetration) and second-degree sexual assault ( i.e., non-consensual sexual contact). Judge Smith entered judgement against Natekin for both of these crimes. On appeal, Natekin contends that these two jury verdicts should have been merged into a single conviction (and sentence).
As we have already explained, the State's evidence at Natekin's trial showed that Natekin pulled J.M. into a bedroom and assaulted her for some 30 minutes. During this assault, Natekin ripped J.M.'s shirt open, kissed and sucked on her breasts, unbuttoned her pants and stuck his hand down her pants — touching her genitals, but not penetrating her. Natekin also removed his own belt, unzipped his pants, and requested that J.M. give him oral sex — although, apparently, this sex act was not completed.
In her summation to the jury, the prosecutor distinguished between the charge of attempted first-degree sexual assault and the charge of second-degree sexual assault. With respect to the attempted first-degree sexual assault charge, the prosecutor told the jurors:
Prosecutor: [Natekin is charged with] an attempted sexual assault, and [also] a completed sexual assault, as far as sexual contact. But why only an attempted sexual assault . . . ? What [the State must] show . . ., for an attempt, is that he intended to actually engage in sexual [penetration] but, for some reason, he didn't. . . . Well, look at his actions. They're pretty deliberate. . . . [He] . . . grabs her and throws her in the room. Think about what he was doing when you're considering if we've shown [that] he's taken a substantial step [toward penetration], and what would have happened if [J.M.'s friend] Dubravka [Stewart] [had not] stepped in
. . . .
I submit to you that the evidence has shown clearly that [Natekin's actions exceeded] mere preparation. [J.M. was] in that room with him, . . . [and] someone [had] to [break] the door open, and his pants [were] undone. This was steps away from being a completed sexual assault. . . . [He] was close [to completing sexual penetration]. He had his pants down, he had his hand down her pants. . . .
With respect to the second-degree sexual assault charge, the prosecutor told the jurors:
Prosecutor: [The second-degree sexual assault charge is] talking about knowingly engaging in sexual contact with J.M. without her consent, and with reckless disregard for her lack of consent. And sexual contact, as you heard the definition, is contact with her breast or genital area. . . . And you heard the testimony from [J.M.], . . . she indicated [that] he was grabbing her breasts, he was sucking on her breasts. He also stuck his hand down her pants and touched her vaginal area. And that's all sexual contact. It was without her consent. Even he says he was roughing her up, he was grabbing her, he was restraining her, he pulls her back into the bedroom. I mean, this is a violent action that is going on in this room, and he's not caring what she has to say.
The jury instructions pertaining to these two crimes did not specify which alleged acts formed the factual basis for each count.
At Natekin's sentencing, his defense attorney argued that the two convictions should be merged. Judge Smith rejected this contention and sentenced Natekin for both the attempted first-degree sexual assault and the second-degree sexual assault.
Article I, Section 9 of the Alaska Constitution prohibits multiple punishments for the "same offense". In Whitton v. State, 479 P.2d 302, 312-13 (Alaska 1970), the Alaska Supreme Court set out a test for determining whether a defendant who has been convicted of violating two different criminal statutes should receive only one conviction and sentence. The two counts should merge "if the two statutory offenses are so closely related that there are no significant differences between the conduct proscribed and the societal values protected by each statute." Moore v. State, 123 P.3d 1081, 1092-93 (Alaska App. 2005) (summarizing the Whitton decision).
Under the circumstances of this case, both the charge of attempted first-degree sexual assault and the charge of second-degree sexual assault protect the same societal interests. Accordingly, the question presented in this appeal is whether Natekin was convicted of these two crimes based on different underlying conduct, or whether his two convictions were based on the same conduct.
We conclude that the record is ambiguous as to whether Natekin's convictions were based on the same conduct or different conduct.
As we just explained, when the prosecutor asked the jury to find Natekin guilty of attempted sexual penetration, she urged the jurors to "think about what [Natekin] was doing . . ., and what would have happened if Dubravka [Stewart] [had not] stepped in". The prosecutor asked the jurors to consider the fact that "someone [had] to [break] the door open. . . . [Natekin] had his pants down, [and] he had his hand down [J.M.'s] pants[.]"
This description of the conduct underlying the attempted first-degree sexual assault mirrors, to a substantial degree, the prosecutor's description of the conduct underlying the second-degree sexual assault charge. With respect to that latter charge, the prosecutor asked the jurors to focus on the fact that "[Natekin] stuck his hand down [J.M.'s] pants and touched her vaginal area. And that's all sexual contact. It was without her consent. Even [Natekin] says he was roughing her up, he was grabbing her, he was restraining her, he pulls her back into the bedroom. I mean, this is a violent action that is going on in this room, and he's not caring what she has to say."
It is the State's burden to affirmatively demonstrate that Natekin's two separate convictions are justified. Because the record is ambiguous as to whether Natekin was convicted of separate counts based on the same underlying conduct, Natekin must receive only one conviction and one sentence. Cronce v. State, 216 P.3d 568, 570 (Alaska App. 2009). See also Mill v. State, 585 P.2d 546, 552 n. 4 (Alaska 1978) ("In marginal cases[,] doubts should be resolved against turning a single transaction into multiple offenses.").
Conceivably, Natekin's conduct might have supported two separate convictions. We express no opinion on this matter. But even assuming that Natekin's conduct might have supported separate convictions, the prosecutor relied on largely the same conduct when she asked the jury to convict Natekin of the two charges. In such a situation, any ambiguity must be resolved in the defendant's favor.
See Wigles worth v. State, 249 P.3d 321, 329-330 (Alaska App. 2011); Cronce, 216 P.3d at 570; Soundara v. State, 107 P.3d 290, 299 (Alaska App. 2005).
For these reasons, we conclude that the two jury verdicts must merge into a single conviction for the greater crime, attempted first-degree sexual assault.
(Attempted first-degree sexual assault is a class A felony, and it is therefore a more serious crime than second-degree sexual assault, which is a class B felony.)
See AS 11.41.410(b) (declaring first-degree sexual assault to be an unclassified felony), and AS 11.31.100(d)(2) (declaring that any attempt to commit an unclassified felony other than murder is a class A felony).
See AS 11.41.420(b).
Natekin's claim that Judge Smith unlawfully amended the judgement after he pronounced Natekin's sentence, in an effort to make Natekin's individual sentences match the originally announced composite sentence
Our decision that Natekin should receive only one conviction and sentence means that the superior court must re-sentence Natekin — thus mooting this claim.
Natekin's claim that Judge Smith imposed an excessive sentence when he revoked Natekin's probation on an earlier felony DUI conviction and imposed all 20 months of Natekin's suspended term of imprisonment
When Natekin assaulted J.M., he was on probation stemming from an earlier conviction for felony driving under the influence. Natekin received a sentence of 24 months' imprisonment with 20 months suspended in that felony DUI case. Because Natekin was convicted in the sexual assault case, he faced imposition of some or all of the suspended 20 months from the earlier case.
When a court revokes a defendant's probation, the court must not automatically impose all of the previously suspended jail time. Instead, the court must "carefully reevaluate all currently available information [in light of the Chaney sentencing criteria and impose a sentence that would have been appropriate for the original offense[,] had the trial court known the new information at the initial sentencing." Luepke v. State, 765 P.2d 988, 990-91 (Alaska App. 1988).
Toney v. State, 785 P.2d 902, 903 (Alaska App. 1990).
See State v. Chaney, 477 P.2d 441 (Alaska 1970).
In making this determination, the court must examine the totality of the circumstances, the defendant's criminal history, the seriousness of the defendant's original offense, and the defendant's subsequent conduct. Toney v. State, 785 P.2d 902, 903 (Alaska App. 1990).
Natekin was prosecuted for felony DUI (as opposed to misdemeanor DUI) because he committed three DUIs within two years. He was arrested for the third DUI after he was stopped on suspicion of shoplifting — a fact which suggested that Natekin was prone to committing other crimes when he was intoxicated. This suggestion was seemingly confirmed in the present case, where Natekin committed a serious sexual assault while he was intoxicated.
At his sentencing, Natekin apologized to J.M., but he failed to acknowledge that he had any problems with alcohol, and he maintained that he was not trying to rape J.M.. (Natekin may have been using the word "rape" in the sense of non-consensual vaginal penetration, but his efforts to coerce J.M. into giving him oral sex also qualified as attempted first-degree sexual assault.)
See AS 11.81.900(b)(59), the definition of "sexual penetration".
When Judge Smith sentenced Natekin, he discussed Natekin's rehabilitative potential, and — in this connection — Judge Smith noted that alcohol abuse appeared to be a serious problem for Natekin. Specifically, Judge Smith stated:
The Court: Given Mr. Natekin's age, [and] given his situation, I don't know how rehabilitation exactly is going to play. . . . I have some concerns [about rehabilitation], because what I didn't hear from Mr. Natekin [during his allocution] was any discussion of cleaning up the alcohol issue. . . . And alcohol drove this[sexual assault]. His friends have indicated that Mr. Natekin is a very different person when he's drunk. He was clearly extremely drunk that night, and he behaved in about as inappropriate a fashion as a person could behave. So I have some concerns about Mr. Natekin's rehabilitative potential.
[With respect to the petition to revoke Natekin's probation in the] felony DUI [case], alcohol is a significant issue, and it doesn't seem to be being addressed at all. And when one looks at the behavior that ensued from Mr. Natekin's intoxication, that is a considerable concern from self-deterrence purposes as well.
. . .
In view of the fact that Mr. Natekin was [previously] convicted of [felony] DUI, and then he committed a vastly more serious crime while heavily under the influence of alcohol, [I conclude that] it is appropriate to revoke [all of] the remaining [jail] time, so that's what I'm going to do. And that [20 months], by law, is consecutive [to Natekin's sentence for the sexual assault].
On appeal, Natekin argues that Judge Smith was clearly mistaken when he imposed all of the 20 suspended months. Specifically, Natekin contends that this sentence was in appropriate given the relatively mitigated circumstances of his prior DUI. (As we explained above, Natekin was stopped on suspicion of shoplifting, rather than because of a vehicular accident or any observed bad driving.)
Even though the facts of Natekin's prior DUI may have been mitigated, we note that Natekin received a mitigated sentence for that prior felony: only 4 months to serve. Indeed, even with the imposition of the 20 months, Natekin's total sentence for the felony DUI is still within the presumptive range for a first felony offender convicted of this class C felony.
See AS 28.35.030(n) (classifying felony driving under the influence as a class C felony) and AS 12.55.125(e) (providing a presumptive sentencing range of 0 to 2 years' imprisonment for this class C felony).
Given Natekin's continuing and escalating problems with alcohol, and given Natekin's inability or refusal to acknowledge those problems, we conclude that it was reasonable for Judge Smith to order Natekin to serve the remaining 20 months of his felony DUI sentence.
Conclusion
The superior court must merge Natekin's two convictions into a single conviction for attempted first-degree sexual assault, and the court must then re-sentence Natekin. Apart from this, the judgement of the superior court is AFFIRMED.