Court of Appeals Nos. A-8490, A-8499.
June 1, 2005.
Appeal from the Superior Court, First Judicial District, Juneau, Michael A. Thompson, Judge. Trial Court Nos. 1JU-01-1110 CR, 1JU-01-1111 CR, 1JU-01-1112 CR, 1JU-01-1107 CR, 1JU-01-1108 CR, 1JU-01-1109 CR.
David D. Reineke, Assistant Public Defender, and Barbara K. Brink, Public Defender, Anchorage, for Appellant Cynthia Sky.
Dan S. Bair, Anchorage, for Appellant Dick Sky.
W.H. Hawley, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Cynthia Sky appeals her convictions for twenty-nine counts of first-degree sexual abuse of a minor, one count of attempted first-degree sexual abuse of a minor, and two counts of sexual exploitation of a minor. Dick Sky appeals his convictions for thirty-eight counts of first-degree sexual abuse of a minor, one count of attempted first-degree sexual abuse of a minor, two counts of sexual exploitation of a minor, and one count of third-degree weapons misconduct (felon in possession).
The Skys argue: (1) that the trial court erred in denying their suppression motion, because the affiant officer deliberately misled the magistrate to get a warrant, (2) that the 120-day period of Rule 45 expired before they were brought to trial, (3) that the trial court abused its discretion in denying their motion for continuance during trial, and (4) that the trial court erred in rejecting Dick Sky's mistake of law defense to the weapons misconduct charge.
We conclude that the issues which the Skys raised have no merit and accordingly affirm their convictions.
Facts and proceedings
On February 7, 2001, Rebecca Bishop reported to the Sitka police that Dick and Cynthia Sky had sexually abused her 10-year-old daughter, R.B., while the girl was visiting them on Bauer Island. R.B. ultimately disclosed that this abuse, perpetrated by both of the Skys, occurred on numerous occasions.
On February 15, 2001 the police, armed with a search warrant and two arrest warrants, went to Bauer Island to search for evidence of the abuse against R.B. and to arrest the Skys. Mr. Sky was contacted while walking on the island carrying a shotgun. When the officers ordered Mr. Sky to drop the weapon, he did so, and in addition, he removed a .22 caliber handgun from his pocket and dropped it as well.
The police found R.T. (age 12) at the Skys' home. They also found a set of homemade stocks and a large amount of pornographic material and paraphernalia (including homemade handcuffs and dildos), as well as incriminating writings. R.T.'s mother noticed that when they brought R.T. home she had "dark bruises all the way around her neck."
A former instrument of punishment consisting of a heavy wooden frame with holes for confining a person's neck and wrists.
R.T. reported being sexually abused multiple times by the Skys, both on Bauer Island and in Sitka. J.T., R.T.'s younger sister, also reported being sexually abused by the Skys.
On February 23, 2001 the Skys were indicted for multiple offenses related to their abuse of R.B. They were charged jointly with twelve counts of sexual abuse of a minor in the first degree, two counts of sexual exploitation of a minor, and one count of kidnapping. Dick Sky alone was charged with failure to register as a sex offender and with third-degree weapons misconduct (for being a felon in possession of a concealable firearm). The kidnapping charge and the failure to register as a sex offender charge were dismissed by the State prior to trial. Three of the sexual abuse of a minor charges were dismissed on the Skys' motion for judgment of acquittal.
On February 28, 2001 the Skys were indicted for multiple offenses related to their abuse of R.T. Dick Sky was charged individually with three counts of sexual abuse of a minor in the first degree. The Skys were charged together with sixteen counts of sexual abuse of a minor in the first degree and with one count of attempted sexual abuse of a minor in the first degree. One of the sexual abuse of a minor charges was dismissed on the Skys' motion for judgment of acquittal.
On April 12, 2001 the Skys were indicted for multiple offenses related to their abuse of R.T. Dick Sky was charged individually with six counts of sexual abuse of a minor in the first degree. The Skys were charged together with five counts of sexual abuse of a minor in the first degree.
At a joint trial before Superior Court Judge Michael A. Thompson, Dick and Cynthia Sky were convicted by a jury of all the sex offenses which had not been dismissed. Dick Sky was sentenced to a term of seventy-five years with twenty years suspended. Cynthia Sky was sentenced to a term of thirty-five years with ten years suspended.
During a later bench trial, Dick Sky was convicted by Judge Thompson of misconduct involving weapons in the third degree. For this conviction, Mr. Sky was sentenced to two years consecutive, with one year suspended.
The Skys appeal these convictions.
Judge Thompson did not err in denying the Skys' motion to suppress.
At a mid-trial evidentiary hearing, the Skys moved to suppress the evidence seized from their tent. Judge Thompson denied the motion. The Skys now renew their argument that they were entitled to suppression because the affiant officer intentionally misled the magistrate in acquiring the search warrant — a violation of the rule in State v. Malkin. In the alternative, the Skys argue that Judge Thompson erred when he failed to reconstruct the record of the third ex parte warrant hearing.
722 P.2d 943, 946 n. 6 (Alaska 1986).
In support of his application to search Bauer Island, Sitka Police Officer Chad Rathbun appeared before Deputy Magistrate Jean Seaton three separate times.
February 12, 2001 hearing
On February 12, Officer Rathbun appeared before the magistrate to request a warrant to search Bauer Island. Rathbun testified about the systematic sexual abuse by the Skys as related to him by R.B. He also told the magistrate that he had discovered that the Skys did not own any portion of the island. Officer Rathbun had flown over Bauer Island and photographed the tent in which the Skys lived and a shed that, according to R.B., the Skys used for storage. However, R.B. had not told Rathbun that any sexual abuse occurred in the shed, nor that there was any evidence relating to the sexual abuse there.
The magistrate found that there was probable cause to search Bauer Island. However, since there was no evidence concerning who owned the shed, no evidence that any items the police were searching for were in the shed, and no evidence that any of the crimes occurred in the shed, the magistrate had misgivings about authorizing its search. Therefore, she did not issue a warrant for the shed.
February 13, 2001 hearing
The next day Officer Rathbun again appeared before the magistrate and informed her that he had just learned that Dick Sky had a prior felony conviction. As a result Officer Rathbun requested that the magistrate amend the search warrant to authorize a search for weapons (in order to gather evidence of the crime of felon in possession) and to authorize a search of the shed. Officer Rathbun supported this request by explaining that R.B. claimed that she had been taught to shoot firearms while on the island and that the Skys had many firearms stashed in several different locations on the island. Officer Rathbun also explained that, because of the small size of the tent, it was unlikely that all of the Skys' weapons were stored there.
At this point the magistrate asked Officer Rathbun if he knew how far the shed was from the tent. Officer Rathbun estimated the distance was between 25 to 40 feet. Officer Rathbun also referred the magistrate to a map he had drawn of Bauer Island while flying over it. He stated that the map was not a very good depiction of the island and that the northern end of the island (where the tent and shed were) was "narrower . . . the widest part is probably 50 feet, maybe 75 feet."
The magistrate indicated that during the prior hearing she had not been "as clear that the shed was this near the tent," and that she was convinced by this fact "more than anything else" that the warrant should be amended to include the storage shed.
February 14, 2001 hearing
Although a court system compact disk confirms that a hearing was held before the magistrate on February 14, the disk contains no audio (most likely due to an error in setting up the recording device). However, the disk did have a time stamp indicating that the hearing was on record from 9:02:08 to 9:10:10 a.m. and from 9:15:25 to 9:22:27 a.m.
During the suppression hearing Officer Rathbun testified that this third hearing was held because, after the second hearing, he realized that his estimate of the distance from the Skys' tent to the storage shed was "grossly inaccurate." According to Officer Rathbun's testimony, during the hearing he apologized to the magistrate and told her of his mistake. At this point the magistrate amended the warrant by crossing out some of the wording. Officer Rathbun believed that the magistrate had withdrawn his authorization to search the shed. In actuality, the warrant still authorized the search of the shed; the magistrate had crossed out the authorization to search for firearms (as evidence of a felon in possession offense).
The warrant was served on February 15, 2001. Incriminating evidence was discovered in the Skys' tent, and Dick Sky was carrying a handgun when he was arrested. The shed was also searched (apparently by a member of the police team other than Rathbun). However no evidence was found in the shed.
Judge Thompson's conclusion that Officer Rathbun did not make intentional misstatements to obtain the warrant is not clearly erroneous
After the conclusion of the evidentiary hearing on the motion to suppress, Judge Thompson found that Officer Rathbun was very inaccurate in his estimate of the distance between the tent and the shed. But Judge Thompson specifically found that Officer Rathbun was merely "terrible at estimating distances" and that his estimates were the result of an honest mistake. This finding is supported by the record.
The Skys maintain that Judge Thompson erred in resolving the motion to suppress without the record of the February 14, 2001 hearing. However, the Skys never asked to have the record reconstructed, but allowed Judge Thompson to decide the issue based upon the testimony in front of him. They therefore waived any argument that Judge Thompson erred in deciding this issue without attempting to reconstruct the record. The record of the information which Officer Rathbun presented to the magistrate is mostly intact and establishes probable cause for the police to search everything but the shed. The police did not find any evidence in the shed. The only issue before Judge Thompson at the suppression hearing was whether Officer Rathbun had made intentional misstatements concerning the distance between the tent and the shed. The record before Judge Thompson was perfectly adequate for him to make this determination.
Moreau v. State, 588 P.2d 275, 279 (Alaska 1978); Melson v. Anchorage, 60 P.3d 199, 201 n. 5 (Alaska App. 2002).
Judge Thompson did not err in refusing to dismiss the charges based upon a violation of Criminal Rule 45
The Skys argue that Judge Thompson erred in refusing to dismiss their case under Criminal Rule 45, the Speedy Trial Rule. But a review of the record shows that the Skys waived Criminal Rule 45 due to conflicts which arose between the Skys and their first attorneys. The major delay occurred when the Skys concluded that they did not want to be represented by the attorneys who were initially appointed to represent them. Judge Thompson pointed out that if he appointed new attorneys to represent the Skys, that the attorneys would almost certainly have busy schedules and that it would take the attorneys a considerable amount of time to prepare the case for trial. He pointed out that there could be a substantial delay, a delay of several months, until newly appointed attorneys could be prepared for trial. The Skys stated that they understood, but that it was important for them to obtain attorneys who would try the case the way that they wanted it to be tried. Judge Thompson, over the State's objection, ordered the Office of Public Advocacy to assign new counsel to each of the Skys.
It took approximately one month before new counsel entered an appearance for Dick Sky. It took a little less than two months before new counsel appeared on behalf of Cynthia Sky. The head of the Office of Public Advocacy explained to Judge Thompson that in seventeen years he had never had such a difficult time securing counsel for a defendant. Both newly appointed counsel told Judge Thompson that they had several trials already scheduled and would not be available for trial in the Skys' case for several months. The Skys objected on several occasions, arguing that they had not agreed to waive Criminal Rule 45 for this extensive period. The State also opposed the continuances, pointing out that the Skys were objecting to the delay and arguing that the victims in the case were also entitled to a speedy trial.
Judge Thompson stated that the Skys had caused the long delay by claiming that they were dissatisfied with their original attorneys. He pointed out that he had made sure at the time that the Skys knew that such a delay would probably result from appointing new attorneys. He found good cause to continue the trial for several months until the newly appointed attorneys would be prepared. He noted that the State had consistently opposed the continuances and stated that he was also concerned about possible prejudice to the victims that would result from the delay. But he concluded that any delay was the fault of the defendants.
The Skys contend that Judge Thompson erred in tolling Rule 45 for the time that resulted from the appointment of new attorneys to represent them. They argue that, once they understood that considerable delay would occur, they promptly withdrew their waiver of Criminal Rule 45. But we conclude that Judge Thompson properly concluded that the delay was chargeable to the Skys. The Skys insisted on obtaining new attorneys to represent them. Judge Thompson foresaw the difficulty, and informed the Skys that in all probability their decision to obtain new attorneys would result in a considerable delay in bringing their case to trial. In fact, his predictions about the length of the delay that would occur were quite accurate.
Once Judge Thompson granted the Skys' request to appoint new attorneys to represent them, the Skys attempted to withdraw their waiver of Criminal Rule 45. But at that point, Judge Thompson's choices were limited. The Skys faced serious charges and it was prudent for the Office of Public Advocacy to obtain experienced counsel to represent them. Judge Thompson accurately predicted that experienced counsel would in all probability have extensive prior commitments and that preparation of the Skys' defense would likely take a substantial period of time. All of these factors were factors that Judge Thompson foresaw and pointed out to the Skys. With this forewarning, the Skys elected to obtain new counsel. We conclude that Judge Thompson did not err in concluding that the time that resulted from the Skys' motion to obtain new counsel was attributable to them. We conclude that Judge Thompson did not err in denying the Skys' motion to dismiss for violation of Criminal Rule 45.
Judge Thompson did not err in denying the Skys' motion for a continuance
During jury selection on the second day of trial, the Skys' attorneys requested a continuance. The attorneys explained that the Skys had just decided, for the first time, that they would assist their attorneys in preparing their defense. The defense asked for a continuance of approximately three months. The State opposed any continuance. Judge Thompson denied the continuance but stated that he would aid the defense by having short trial days to provide extra time for the attorneys to prepare during the trial. The attorneys both stated that they were unwilling to continue their representation of the Skys without more time to prepare. Judge Thompson ordered both attorneys to continue to represent the Skys.
During the trial, the attorneys did not make an opening or closing statement. They only cross-examined one witness, and did not call any defense witnesses.
The Skys argue that Judge Thompson erred in refusing to grant them a continuance. But on this record, Judge Thompson could properly conclude that the Skys and their attorneys had been afforded an adequate opportunity to prepare their case for trial. Any lack of preparation was due to the Skys' refusal to cooperate with the attorneys.
In Annas v. State, this court addressed a situation very similar to the Skys'. In Annas, the defendant refused to cooperate with his appointed counsel, demanding that the attorney be replaced with the lay person of his choice. The trial court refused to grant a delay in the filing of motions, and refused to postpone the trial, so that the public defender could be better prepared. In upholding the trial court's decision, this court held that, under the circumstances (Annas's refusal to cooperate), there was not good cause to delay the filing or motions or to postpone the trial.
726 P.2d 552 (Alaska App. 1986).
Id. at 558.
Id. at 558-59.
We conclude that Judge Thompson did not err in refusing to grant the Skys a continuance. A contrary ruling by this court would mean that a trial court would be powerless to control defendants who, through their own actions, create the need for more time to mount a defense. The Skys contend that the record shows that their attorneys did not adequately defend them. But whether the Skys received ineffective assistance of counsel is a matter which must be addressed in an application for post-conviction relief.
See Alaska Crim. R. 35.1(a)(9); Risher v. State, 523 P.2d 421, 425 n. 20 (Alaska 1974).
Judge Thompson did not err in rejecting Dick Sky's mistake of law defense
Dick Sky argues that Judge Thompson erred in rejecting his mistake of law defense to the charge of weapons misconduct in the third degree (for being a felon in possession of a concealable firearm).
At the time of his arrest, Dick Sky had a concealable .22 pistol in his pocket. Dick Sky also had a prior felony conviction. During the bench trial on the weapons misconduct charge, Dick Sky raised the affirmative defense of mistake of law.
Dick Sky called Brian Crider, his supervisor when he worked for the United States Forest Service, as a witness. Crider testified that Sky had been authorized to carry a gun during his employment, from 1992 to 1994. He testified that because Sky had only one hand he did not carry the standard .357 handgun that the Forest Service issued to its employees, but instead carried his personal weapon, a shotgun. Under cross-examination, Crider testified that Sky had never been authorized by the Forest Service to carry the .22 caliber handgun that was in his possession when he was arrested. He also indicated that Sky had not disclosed that he was a felon on his application to the Forest Service, and that the Forest Service had a policy of not hiring convicted felons and would not authorize a felon to carry a gun.
Dick Sky also testified on his own behalf. He testified that after fully serving his sentence for the felony conviction, he had received a discharge paper that said he had "fulfilled all of his obligations to the State of Montana and is hereby restored of all rights and privileges of citizenship." Sky testified that before moving to Alaska he checked on federal law to make sure that he could carry a weapon. He also stated that he had informed the Forest Service of his conviction when he applied to work for them.
Sky relies on Ostrosky v. State, arguing that he established a defense of mistake of law. Ostrosky provides that a defendant can establish a mistake of law defense if he establishes (1) that he or she acted in the belief that the charged conduct did not violate the law, and (2) that this belief arose from a reasonable reliance upon an official statement of the law.
704 P.2d 786, 792 (Alaska App. 1985).
Clark v. State, 739 P.2d 777, 779 (Alaska App. 1987).
In a written decision, Judge Thompson rejected Sky's mistake of law defense. He found that the Forest Service was unaware of Sky's felony conviction when it hired him. He found that the fact that the Forest Service had allowed Sky to possess a shotgun while he was employed there fell short of an official pronouncement of law on which Sky could rely.
We conclude that Judge Thompson did not err in rejecting Sky's mistake of law defense. The fact the Forest Service allowed Sky to carry a shotgun while he was employed there does not constitute an official statement of the law. According to Judge Thompson's findings, which are not clearly erroneous, the Forest Service was unaware of Sky's felony conviction. Furthermore, Sky possessed a shotgun while he worked for the Forest Service. The Alaska Statutes prohibit a convicted felon from possessing a concealable weapon such as the handgun that Sky had in his possession when he was arrested. The fact that the Forest Service may have permitted Sky to carry a shotgun while he was employed with them does not establish any basis for Sky to show that he reasonably relied on an official statement of law that he could carry a concealed weapon.
Judge Thompson concluded that it was unreasonable for Sky to rely on anything that he received from Montana to conclude that he was authorized to carry a concealable firearm in Alaska. Judge Thompson pointed out that Alaska Statutes are clear that convicted felons cannot possess concealable firearms. Again, Judge Thompson is correct that Sky did not present any basis that would establish a mistake of law defense. We accordingly conclude that Judge Thompson did not err in rejecting Sky's mistake of law defense.
We conclude that Judge Thompson did not err in denying the Skys' motion to suppress and their motion to dismiss under Criminal Rule 45. We conclude that Judge Thompson did not err in denying the Skys' motion for a continuance nor in rejecting Dick Sky's mistake of law defense. We accordingly affirm the Skys' convictions.
The convictions are AFFIRMED.