Andrew C. MOFFITT, Appellant,
STATE of Alaska, Appellee.
Marjorie Allard, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Nancy R. Simel, Assistant Attorney General, Office of Special Prosecutions and Appeals,
Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before : COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.
In October 2005, Andrew C. Moffitt was facing felony charges in the Palmer superior court. On October 7th, he failed to appear for a scheduled court proceeding in that felony prosecution. Based on this conduct, he was indicted for felony failure to appear at a judicial proceeding. Following a jury trial, Moffitt was found guilty of this offense.
A few days after the jury returned its verdict, Moffitt filed a motion asking the superior court to grant him a new trial. In this motion, Moffitt argued that the prosecutor's final argument to the jury, coupled with the trial judge's instructions to the jury and the trial judge's later response to a mid-deliberation question posed by the jury, created a substantial possibility that the jury convicted Moffitt even though they believed that his failure to appear might have been inadvertent.
The superior court denied Moffitt's motion for a new trial. For the reasons explained here, we conclude that Moffitt is correct: there is a substantial chance that the jury followed a mistaken view of the law when they found him guilty of failing to appear. We therefore conclude that the superior court abused its discretion when the court denied Moffitt's motion for a new trial.
The culpable mental state that must be proved to establish a defendant's guilt of failure to appear
Under AS 12.30.060, a defendant facing criminal charges commits the separate crime of failure to appear if the defendant " knowingly fails to appear Before a court or judicial officer as required" .
This Court has interpreted and explained the elements of this crime in two decisions: Hutchison v. State, 27 P.3d 774 (Alaska App.2001), and Jackson v. State, 85 P.3d 1042 (Alaska App.2004).
In Hutchison, we were called upon to construe the pre-September 2000 version of the statute, which defined the crime as " wilfully" failing to appear (as opposed to the current version, which penalizes " knowingly" failing to appear). The defendant in Hutchison testified that, on the night Before his scheduled omnibus hearing, he drank so much that he passed out and did not awaken until the next afternoon-thus missing his court appearance. Based on this testimony, the trial judge (who was hearing the case without a jury)  declared that he " ha[d] a reasonable doubt [whether] Mr. Hutchison's conscious goal was not to come to court that morning" . Id. at 782. The question presented in Hutchison's appeal was whether this reasonable doubt concerning Hutchison's purpose (or, rather, his lack of conscious purpose) required the trial judge to acquit Hutchison.
We first surveyed the federal cases on this subject and concluded that, under federal law, a defendant's failure to appear at a judicial proceeding will constitute the crime of failure to appear only if the defendant's failure to appear was " purposeful" or " deliberate" or " intentional" (in the usual sense of this word, rather than under the technical definition of " intentional" codified in AS 11.81.900(a)(1)). Id. at 777. In other words, " even though a defendant may have failed to appear as required, the defendant will not have acted [with the culpable mental state required for conviction] if the failure to appear was the result of mistake or inadvertence or good-faith but feckless efforts." Id.
We then examined Alaska case law on a related subject-contempt of a court order-and concluded that the Alaska law of contempt required proof of essentially the same culpable mental state. Id. at 779-780. We noted, in particular, what the Alaska Supreme Court said in Continental Insurance Companies v. Bayless & Roberts, Inc., 548 P.2d 398, 407 (Alaska 1976): for purposes of
adjudicating a charge of criminal contempt, " [a] willful failure to comply with [a court] order occurs when [the] failure is ... due ... to purposefulness, bad faith[,] or fault of [the] petitioner as distinguished from accidental, inadvertent[,] or negligent conduct."
Having surveyed these two lines of cases, we concluded in Hutchison that the crime of failure to appear codified in AS 12.30.060 requires proof of this same culpable mental state:
[A] defendant willfully fails to appear if, in the absence of some legally recognized justification or excuse, the defendant makes a deliberate decision to disobey a known obligation to appear in court (including instances of " willful blindness" , where the defendant engages in conduct designed to avoid notice of the court date).... [T]he government need not prove that the defendant acted with the conscious aim or purpose of causing a particular result[, but] the government must prove ... that the defendant's purpose was to disobey or disregard the court's order to appear.
Hutchison, 27 P.3d at 780.
Having construed the statute in this manner, we concluded that the trial judge should have acquitted Hutchison of failing to appear:
Based on [Hutchison's] testimony, [the trial judge] declared that he " ha[d] a reasonable doubt [whether] Mr. Hutchison's conscious goal was not to come to court that morning" . If Hutchison did not act with the conscious purpose of avoiding his obligation to appear, he did not act " wilfully" .... Therefore, based on [the trial judge's] evaluation of the evidence, Hutchison should have been acquitted.
Hutchison, 27 P.3d at 782.
As noted above, our decision in Hutchison dealt with the pre-September 2000 version of the failure to appear statute. This former version of the statute defined the offense in terms of " willfully" failing to appear, whereas the current version of the statute defines the offense in terms of " knowingly" failing to appear. But as we explained in Hutchison, given the definition of " knowingly" codified in AS 11.81.-900(a)(2), the concept of " willfully" failing to appear is essentially the same as the concept of " knowingly" failing to appear-with the exception that there is a special clause in the definition of " knowingly" which provides that voluntary intoxication does not negate this culpable mental state.
Thus, our decision in Hutchison established the rule that, to prove a " knowing" failure to appear, the State must prove that the defendant made a deliberate, conscious decision not to come to court. The crime is not proved if the defendant's failure to attend the judicial proceeding was a result of mistake, inadvertence, or even negligence.
Three years after Hutchison, we applied this same definition of " knowingly" in our next decision dealing with the failure to appear statute, Jackson v. State, 85 P.3d 1042 (Alaska App.2004).
The precise issue presented in Jackson was whether the State was required to prove that the defendant's conscious decision not to appear in court was made on the very day, and at the very time, of the defendant's scheduled court appearance. In other words, was the State required to prove that the defendant was consciously thinking about the obligation to appear in court, and consciously deciding not to go to court, at the very time of their court date? Id. at 1043. We held that this was not required:
Jackson would be guilty of " knowingly" failing to appear if he decided early on that he would not attend his scheduled court appearances, and he then dismissed the matter from his mind. Jackson's conscious decision not to attend court, combined with his subsequent failure to appear on the two specified days, would constitute a sufficient concurrence of culpable mental state and prohibited act or omission-even if it were true that, on the two scheduled days, Jackson gave no conscious thought to his court appearances.
Jackson, 85 P.3d at 1043-44.
But for present purposes, the important part of our decision in Jackson is our reiteration of what we said earlier, in Hutchison,
regarding what constitutes a " knowing" failure to appear: The State is required to prove that, at some point Before the scheduled court appearance, the defendant made a conscious decision not to go to court-that the defendant's failure to appear in court was not the result of mistake, inadvertence, or negligence. Here is our discussion of this point in Jackson:
Jackson also argues that the jury may have convicted him based solely on the undisputed evidence that he was informed (at his arraignment) of his two future court dates [and that he thereafter failed to appear]. But we do not read the jury instructions to allow this.
As explained above, the jury was told that Jackson could not be convicted unless the jurors were convinced beyond a reasonable doubt that Jackson's conduct ( i.e., his failure to appear) was knowing, and they were further told that Jackson could not be convicted unless the jurors found a " joint operation" of culpable mental state and prohibited conduct. Jackson presented the defense that he made an honest mistake as to the date of his first scheduled court appearance and that, after he realized that he had missed this first court appearance, he honestly believed that his second court appearance would be canceled and that he would be notified of new court dates. If the jury had accepted these assertions, they would not have found that Jackson's [failure to appear] was " knowing" as defined in the instructions.
Jackson, 85 P.3d at 1044.
In other words, both Hutchison and Jackson hold that the State is required to prove that the defendant made a deliberate, conscious decision not to attend court-and that an honest mistake about the date or time of the court hearing is a defense to the charge of failure to appear.
The evidence presented at Moffitt's trial, the summations of the parties, the mid-deliberation proceedings, and Moffitt's ...