Opinion
Court of Appeals No. A-11526 No. 6385
09-28-2016
STATE OF ALASKA, Appellant, v. GABRIEL MOSES NICOLAI, Appellee.
Appearances: James J. Fayette, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellant. Michael Schwaiger, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 4BE-12-335 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Fourth Judicial District, Bethel, Charles W. Ray Jr., Judge. Appearances: James J. Fayette, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellant. Michael Schwaiger, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. PER CURIAM.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
The State charged Gabriel Moses Nicolai with third-degree criminal mischief, a felony, for breaking windows in his parents' house. At his attorney's request, Nicolai was evaluated for competency because of a prior diagnosis of schizophrenia. Following the initial evaluation by a psychologist from the Alaska Psychiatric Institute (API), the court determined that Nicolai was incompetent and unlikely to be restorable to competency due to a combination of underlying cognitive deficits and on-going psychiatric symptoms.
Former AS 11.46.482(a) (2012).
Because Nicolai was charged with a felony, the court was required to send him to API for further evaluation and treatment. Nicolai was therefore sent to API for this additional evaluation and treatment.
AS 12.47.110(a) provides:
(a) When the trial court determines by a preponderance of the evidence, in accordance with AS 12.47.100, that a defendant is so incompetent that the defendant is unable to understand the proceedings against the defendant or to assist in the defendant's own defense, the court shall order the proceedings stayed ... and shall commit a defendant charged with a felony, and may commit a defendant charged with any other crime, to the custody of the commissioner of health and social services or the commissioner's authorized representative for further evaluation and treatment until the defendant is mentally competent to stand trial, or until the pending charges against the defendant are disposed of according to law, but in no event longer than 90 days.(Emphasis added).
Nicolai made no progress towards restoration to competency at API. API therefore sent Nicolai back to jail less than three weeks later. Nicolai then remained in jail for almost six weeks before his final competency hearing was held. (We note that by the time the final competency hearing occurred, Nicolai had spent over nine months in pre-trial detention on the broken windows charge—all but three weeks of which were spent in jail.)
At the final competency hearing, the psychologist from API was unavailable because of a recent back surgery. (She had evaluated Nicolai twice and had testified telephonically at the initial competency hearing). Nicolai's attorney argued that the superior court could find Nicolai incompetent based on the psychologist's prior testimony and her most recent written report, which confirmed her earlier opinion that Nicolai was incompetent and unlikely to be restored to competency.
The State objected to any use of the written report, arguing that it was inadmissible hearsay and that the State had a right to cross-examine the doctor about her most recent evaluation.
The superior court was concerned about the delays that had occurred in the case and the fact that the parties were already up against the statutory deadline under AS 12.47.110(a). The court therefore overruled the State's hearsay objection and admitted the report under the residual or "catchall" exception to the hearsay rule. Based on the report and the evidence from the prior competency hearing, the court found Nicolai incompetent and unlikely to be restored to competency and dismissed his case without prejudice under AS 12.47.110(b).
See Alaska R. Evid. 803(23); see also Ryan v. State, 899 P.2d 1371, 1379 (Alaska App. 1995) (discussing narrowness of the residual exception to the hearsay rule); Miessner v. Anchorage, 673 P.2d 285, 287 (Alaska App. 1983) ("The residual exception to the hearsay rule was designed to be used very rarely, and only in exceptional circumstances.") (internal citations omitted).
The State appeals this dismissal, asserting that the criminal charges should be reinstated and the case remanded to the superior court for further proceedings because the superior court erred when it admitted the psychologist's report under the residual hearsay exception of Alaska Evidence Rule 803(23).
In response, Nicolai's attorney argues that this appeal is moot because the dismissal was without prejudice and the State remains free to reinstate the criminal charges for the broken windows should Nicolai be restored to competency within the statute of limitations for this crime.
We agree with Nicolai's attorney that this case is moot. Although we do not condone the court's apparent misuse of the residual exception to the hearsay rule in these circumstances, we agree with Nicolai's attorney that there is no meaningful remedy that this Court can grant that is not already available to the State. If the State has actual evidence of competency that the court did not have an opportunity to consider, the State is free to reinstate the criminal charges and to seek a new hearing on Nicolai's competency.
Maynard v. State Farm Mut. Auto. Ins. Co., 902 P.2d 1328, 1329 n.2 (Alaska 1995). --------
Accordingly, we dismiss the State's appeal. Because we are dismissing this appeal as moot, we do not address whether this case should properly have been filed as a petition for review in the first instance.
Conclusion
The State's appeal is DISMISSED as moot.