Memorandum decisions of this court do not create legal precedent.
MANNHEIMER, Judge.
In the early morning hours of July 2, 2005, Tylan Fely was driving on Boniface Parkway in Anchorage, with three passengers in his car. Fely's attention was drawn to another vehicle, this one driven by Scott Shoemaker. Shoemaker's passenger, Mark Smith was intoxicated: Smith was hanging out the window, singing and shouting in a drunken state. When the two vehicles met at a stop light, Smith held his hand to his face in a gesture that one of the passengers in Fely's car, Sifa Muai, described as an invitation to drink. Fely, however, interpreted Smith's gesture as an insult: a request for Fely to give Smith oral sex.
Fely became enraged, and he followed Shoemaker's car into a neighborhood adjacent to Boniface Parkway. Perceiving that Fely was following him, Shoemaker grew apprehensive, so he slowed down and pulled his car to the side of the street to let Fely pass by. Fely drove past Shoemaker's vehicle, but he immediately stopped his car to block Shoemaker in. Arming himself with a pistol (which was provided by one of his passengers), Fely got out of his car, walked back to Shoemaker's vehicle, and proceeded to confront Smith. When Fely pointed his pistol in Smith's face, Smith attempted to grab the weapon. During the ensuing struggle, the gun went off; the bullet struck and killed Smith.
Fely was indicted and brought to trial on a charge of first-degree murder, but the jury found him guilty of the lesser offense of manslaughter.
Fely now appeals his conviction. He argues that his trial judge acted improperly when, without notifying the defense, the judge granted the State's mid-trial, ex parte application for a bench warrant to ensure the presence of a witness, and then declined to provide the defense attorney with a copy of the State's warrant application. Fely also argues that the trial judge improperly limited the defense cross-examination of a government witness. For the reasons explained in this opinion, we conclude that neither of Fely's claims have merit, and we therefore affirm his conviction.
Malala "Donald" Malele was one of the passengers in Fely's car on the night of the shooting. Both the State and the defense sought to make sure that Malele would be available as a witness at Fely's trial. Fely's attorney attempted unsuccessfully to reach Malele to schedule his trial testimony. To help make sure that Malele would testify at Fely's trial, the defense attorney provided the State with Malele's mobile phone number, his sister's telephone number, and his girlfriend's address and telephone number.
The State had issued a subpoena for Malele before trial, but the State was initially unable to serve this subpoena. A paralegal in the District Attorney's Office contacted Malele's mother, his sister, and his employer, all in unsuccessful attempts to reach Malele. Finally, on January 15, 2008 — after Fely's trial had begun — a state trooper in the Judicial Services division was able to serve the subpoena on Malele.
This subpoena directed Malele to immediately call the District Attorney's Office for further instructions. Moreover, when the judicial services officer served the subpoena on Malele, he told Malele that it was important for Malele to call the District Attorney's Office to schedule his trial testimony — and the officer provided Malele with the paralegal's direct phone number.
Malele did, in fact, arrange a meeting with the State's paralegal for January 15th, but Malele failed to attend this meeting. When Malele failed to show up for this meeting, the State's paralegal made several additional attempts to contact Malele, but her efforts were unsuccessful. According to the paralegal, Malele's mobile phone "either was disconnected or he didn't respond [to messages]."
Although Malele had voluntarily appeared at two grand jury hearings, the trial prosecutor became concerned that Malele would not comply with his trial subpoena. Accordingly, the District Attorney's Office drafted an application for a material witness warrant for Malele's arrest.
When Malele failed to contact the DA's Office by the end of the trial proceedings on January 23rd, the prosecutor handed the warrant application to the trial judge's in-court clerk. No one showed the warrant application to the defense attorney, or otherwise notified the defense attorney that a warrant was being sought.
The in-court clerk delivered the warrant application to the trial judge, Superior Court Judge Philip R. Volland. After reviewing the application, Judge Volland signed the warrant. The judge did not hold an ex parte hearing on the State's request; rather, he relied on the assertions of fact contained in the affidavit that accompanied the warrant application.
The following morning (January 24th), Malele was arrested on this material witness warrant.
When Fely's attorney found out that Malele had been arrested, he told Judge Volland that he (the defense attorney) was aware that the DA's Office had been having difficulties in contacting Malele, but he was not sure why it was necessary to arrest Malele and hold him in jail. The defense attorney told Judge Volland that he had spoken to Malele's sister quite recently, and he had informed Malele's sister that it was important for Malele to keep his mobile phone on, so that the DA's Office could contact him about scheduling his testimony.
The defense attorney stated that "they had a way of contacting [Malele]", and he declared that he did not understand the need to have Malele arrested. However, the defense attorney did not question the ex parte process that led to Malele's arrest; he told Judge Volland that the judge's ex parte order was "proper". Nevertheless, the defense attorney expressed his concern that Malele was "downstairs in the hoosegow, and probably pretty scared". He told Judge Volland, "I'd like [Malele] to be released [from custody], so [that] he could come up and sit in the hallway like any other witness..., and not be frightened to death[.]"
Following the defense attorney's remarks, the prosecutor reminded Judge Volland that, even though the State had theoretically possessed ways of contacting Malele (i.e., the various contact numbers discussed above), the State requested the arrest warrant because of the State's inability to actually contact Malele — as opposed to leaving messages that he neglected or declined to answer.
Judge Volland agreed that Malele "shouldn't be sitting ... in jail all day if he can assure the Court that he's going to be back here [to testify]", so the judge had Malele brought to the courtroom. Judge Volland personally questioned Malele (in the presence of the parties) and, after Malele promised to return to court at 9:00 a.m. the following morning, the judge quashed the material witness warrant.
The defense attorney was present during this colloquy, but he never sought to intervene in the discussion, nor did he seek to question Malele — either at that time or later, when Malele testified in front of the jury — concerning the circumstances surrounding Malele's arrest, or as to how those circumstances might have affected Malele's attitude toward the case or toward the parties.
In this appeal, Fely contends that it was improper for Judge Volland to issue the warrant for Malele's arrest without first notifying Fely's attorney that the State was requesting this warrant, and without allowing Fely's attorney the opportunity to oppose the State's request.
This contention was not preserved in the superior court. As we have just explained, when Fely's attorney learned that Malele had been arrested, he sought Malele's immediate release, but he did not question the ex parte process that led to the issuance of the arrest warrant. Indeed, the defense attorney expressly told Judge Volland that the court's ex parte order was "proper". For this reason, Fely must now show that Judge Volland committed plain error when he granted the State's ex parte request for the warrant.
To support his claim of error, Fely relies on the Alaska Supreme Court's decision in Raphael v. State, 994 P.2d 1004 (Alaska 2000). In Raphael, the trial judge and the prosecutor engaged in an ex parte hearing at which the judge decided to incarcerate a witness, and to place the witness's children in the custody of the Division of Family and Youth Services, until after the witness testified. Id. at 1006. Neither Raphael's attorney nor even the witness herself were present when the prosecutor made his presentation and the trial judge made his decision. Id. at 1006, 1008-09.
The supreme court held that the trial judge's treatment of this witness violated the defendant's rights. The court reasoned that the judge's treatment of the witness was so improper — and so improperly coercive — that it posed a significant risk of affecting the substance of the witness's testimony, thus rendering her later testimony involuntary:
Raphael, 994 P.2d at 1009.
The supreme court also noted that "[t]he psychological effect of taking away [the witness's] children without a proper custody hearing" was likely "even more coercive than [the witness's] own incarceration." Id. at 1010. The supreme court observed that the trial judge not only placed the witness's children in state custody, "but also did not guarantee the children's return upon the completion of [the witness's] testimony. [Her] testimony was thus involuntary on this basis as well." Ibid.
Because the judge's treatment of the witness posed a significant risk of altering the substance of the witness's testimony in a manner favorable to the State and unfavorable to Raphael, the supreme court held that the trial judge violated not just the witness's rights, but Raphael's rights as well, by holding the hearing without affording Raphael and his attorney the opportunity to attend and participate. Id. at 1010, 1013.
Fely argues that the Raphael decision strictly forbids ex parte proceedings to enforce a subpoena, or at least strictly forbids all such proceedings that occur after a defendant's trial has begun. But the Raphael decision expressly states that the supreme court's holding is limited in two respects.
First, the supreme court clarified that a trial court's use of coercive power against a recalcitrant witness does not invariably mean that the witness's later testimony should be deemed involuntary:
Raphael, 994 P.2d at 1010.
Second, the supreme court clarified that it did not intend to completely bar trial judges from conducting ex parte proceedings to enforce a subpoena:
Raphael, 994 P.2d at 1012-13 (footnote omitted).
In light of these limitations on the scope of the holding in Raphael, the supreme court's decision in Raphael appears to comport with the general rule that this Court recognized in Malloy v. State, 1 P.3d 1266 (Alaska App. 2000):
Malloy, 1 P.3d at 1271 (emphasis added) (footnotes and internal quotations omitted).
In Malloy, we discussed — but did not decide — whether, despite a defendant's right to be present at all stages of the criminal proceeding, a trial judge could properly engage in ex parte consideration of a government request for a material witness arrest warrant. Id. at 1271-72. On this issue, we distinguished between (1) the initial application for the arrest warrant and (2) the hearing that ensues following the witness's arrest on that warrant. We stated that there were "significant differences" between these proceedings:
Malloy, 1 P.3d at 1271 (footnotes omitted).
We did not need to resolve this issue in Malloy because we concluded that, even if it had been error to exclude Malloy and her attorney from the initial application for the material witness warrant, that error was ultimately harmless. Id. at 1271-73.
Returning to Fely's case, and to the question of whether Fely has shown plain error, our decision of this question appears to hinge on whether Fely's case is analogous to Raphael or, instead, to Malloy.
If Fely's case is governed by the holding in Raphael, then he has shown plain error — because Raphael unequivocally holds that the trial judge's actions in that case were improper.
But if Fely's case is analogous to Malloy, then he has failed to show plain error — because, in Malloy, we suggested that the trial judge's action was proper. True, we ultimately did not resolve the question of whether the trial judge's action was proper. But we clearly indicated that, under the applicable legal principles, this matter was debatable. And if a matter is debatable, then any arguable error is not "plain" — and thus, the proponent of plain error has failed to prove their case.
For two reasons, we conclude that the facts of Fely's case are closer to the facts of Malloy than to the facts of Raphael.
One of the major difficulties in Raphael is that the trial judge held the witness in civil contempt, and ordered her incarcerated, even though she had traveled to Bethel (the place of trial), apparently intending to honor her subpoena, and even though she had not violated any order issued by the court. In Malloy, on the other hand, there was good reason to believe that the witness in question would refuse to honor the court's subpoena.
The witness in Fely's case, Malele, received a subpoena which directed him to contact the District Attorney's Office to arrange the scheduling of his testimony. Fely's trial had already commenced, and both parties were interested in having Malele testify, so it was fairly important (to all concerned) that Malele contact the DA's office and schedule his court appearance. Malele did, in fact, call the State's paralegal and arrange a meeting with her, but Malele never showed up for this meeting, and he never again initiated contact with the paralegal, nor did he respond to any of the messages that she left for him.
Thus, (1) there was reason to believe that Malele was already in disobedience of the subpoena, and (2) there was reason to believe that Malele would fail to appear in court. By the time the prosecutor filed the application for the bench warrant (at the end of the trial proceedings on January 23rd), the State was in the middle of presenting its case, and there was a need for immediate action to procure Malele's presence.
Turning to a different aspect of the present case, there is a second way in which Fely's case is more analogous to Malloy than to Raphael. In Raphael, during the hearing at which the trial judge decided to incarcerate the witness, the witness was called into the courtroom, and the judge addressed the witness personally in such a way as to suggest that the witness would continue to be in trouble unless and until she tailored her testimony to please the judge and the prosecutor. In Malloy, on the other hand, there was no allegation that the judge improperly suggested that the witness's freedom hinged on the content of the witness's trial testimony.
The real possibility that the witness in Raphael was intimidated or coerced was a central aspect of the supreme court's finding of error in Raphael. Conversely, in Malloy, we cited the neutrality of the proceedings as a reason for concluding that any arguable error in conducting an ex parte hearing was harmless. We noted that the only issue considered by the trial judge in Malloy was whether the court should use its coercive powers to ensure that the witness appeared at trial. There was no discussion concerning the substance of the testimony that this witness might give; rather, the entire focus of the ex parte proceedings was to ensure that he remained available as a witness to both parties. Malloy, 1 P.3d at 1273.
In this respect, again, Fely's case is more like Malloy. In Fely's case, there was only a brief interaction between Judge Volland and the witness, Malele. This interaction occurred in front of the parties, and it was devoted solely to the question of whether Malele would honor his subpoena. As we have explained, as soon as Malele voiced his willingness to return to court the next day to testify at Fely's trial, Judge Volland ordered Malele's release.
For these reasons, we conclude that Fely's case is analogous to Malloy rather than to Raphael. And, based on this conclusion, we hold that Judge Volland did not commit plain error when he entertained the State's request for a material witness warrant ex parte.
Just before Malele was brought to the courtroom to see if he would promise to appear at Fely's trial, Fely's attorney asked Judge Volland to provide him with a copy of the material witness warrant and the State's warrant application.
When Judge Volland asked the defense attorney why he needed a copy of these documents, the defense replied that disclosure of the documents would "advance the interests of justice in having an open and transparent court system", and that disclosure of the documents would allow the defense attorney to "determine whether [the State told] improper things ... to the Court [when applying for the warrant], or [exactly] what was told to the Court".
Judge Volland asked the defense attorney what difference that made, given the fact that the arrest warrant had already been issued and served. The defense attorney responded by telling Judge Volland:
Judge Volland took the defense attorney's request under advisement. The next day, when Malele took the stand at Fely's trial, the defense attorney renewed his request for a copy of the warrant application, and Judge Volland apparently denied that request.
We are not sure why Judge Volland declined to provide a copy of this documentation to Fely's attorney. The warrant and the affidavit in support of the warrant were — and are — a part of the public record. They are included in the record of this appeal.
In its brief, the State does not attempt to justify the judge's decision, but argues instead that Fely suffered no prejudice. We agree.
In Fely's brief to this Court, he argues that, because he had no copy of these materials, he was "prevented from questioning Malele about his time in jail", and thus Judge Volland's action infringed his right to due process and his right to confront the witnesses against him. There are two problems with Fely's argument.
First, Fely's constitutional arguments are not preserved for appeal; they were never presented in the superior court. As we have explained, when Fely's trial attorney was asked why he needed the documents, he said that disclosure would promote the value of having a transparent judicial system, and that disclosure would allow him to determine if the State's warrant application contained improper things. There was no mention of due process or the right of confrontation.
Second, the record does not support Fely's assertion that he had no opportunity to question Malele about his experiences in jail following his arrest on the material witness warrant. Fely's attorney could have asked Judge Volland for permission to question Malele about these matters when Malele was brought to the courtroom following his arrest on the warrant. And Fely's attorney could have questioned Malele about these matters the following day, when Malele returned to court to testify.
Fely also argues that he was prejudiced because his attorney "was not aware of the reason the material witness warrant had been [issued]". But, again, the record does not bear this out. Just before Malele was brought to the courtroom following his arrest, the prosecutor (in the defense attorney's presence) summarized the information supporting the warrant application.
We also note that now, in this appeal, when the warrant application is available to him, Fely fails to identify any specific way in which he might have been prejudiced by not having earlier access to this information.
Accordingly, we conclude that if the trial judge committed error by failing to provide the defense attorney with a copy of this documentation, that error was harmless.
Tauanuu "Baby" Muai and his wife, Sifa Muai, were also passengers in Fely's car on the night of the shooting, and both were called by the State as witnesses at Fely's trial.
At the time of Fely's trial, Mr. Muai was on bail release stemming from unrelated criminal charges; the most serious of these were first-degree assault and riot. Fely's attorney asked Judge Volland for permission to cross-examine Muai about these pending charges. The defense attorney pointed out that Muai might have been promised something in exchange for his testimony at Fely's trial — or that even if the government had not promised Muai anything, Muai might still expect or hope to gain a future benefit if his testimony was favorable to the government.
Judge Volland stated that he would allow the defense attorney to cross-examine Muai about the fact of the pending charges, as well as the maximum penalty that Muai faced if he was convicted, and the ways in which the pending charges and the possible prison sentence might prompt Muai to offer testimony favorable to the State. Judge Volland also allowed the defense attorney to ask Muai if he feared that he would be convicted of these pending charges. But Judge Volland denied the defense attorney permission to ask Muai about the specific factual basis of these charges, or to ask Muai whether he had confessed to these charges, or to otherwise ask Muai the exact reasons why he feared that he might be convicted of these charges.
On appeal, Fely argues that Judge Volland infringed his right of confrontation by limiting the cross-examination of Muai in this manner. We disagree. We conclude that Judge Volland's ruling gave the defense attorney fair and adequate scope to investigate and elucidate Muai's potential bias. See Robinson v. State, 593 P.2d 621, 623-24 (Alaska 1979), where our supreme court upheld a similar restriction on a defense attorney's cross-examination of a government witness.
The judgement of the superior court is AFFIRMED.
