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State v. Avery

Court of Appeals of Alaska

July 17, 2009

STATE of Alaska, Petitioner,
v.
Ezial AVERY, Respondent.

Page 1155

Terisia K. Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Petitioner.

Glenda J. Kerry, Assistant Public Advocate, and Rachel Levitt, Public Advocate, Anchorage, for the Respondent.

Before : COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.

OPINION

COATS, Chief Judge.

In February and March of 2005, Ezial Avery was in jail awaiting trial on charges that he kidnapped and sexually assaulted his wife. At that time, Avery was subject to a court order which prohibited him from contacting his wife. In spite of the court order, Avery telephoned his wife from the jail on numerous occasions and tried to persuade her to not testify against him in front of the grand jury.

Page 1156

The Department of Corrections routinely records inmates' telephone calls. When the police learned that Avery had been contacting his wife, they obtained a warrant that authorized them to obtain and listen to the recordings of the telephone calls Avery had made to his wife. Based on these telephone calls, a grand jury indicted Avery on one count of first-degree tampering with a witness (for inducing or attempting to induce a witness to testify falsely or offer misleading testimony).[1] Twelve counts of unlawful contact in the first degree (for contacting V.Q. in violation of the court order) were added by information.[2]

Avery moved to suppress the telephone recordings. He argued that the State had violated his rights under the United States and Alaska Constitutions when it recorded his telephone conversations without a warrant. Superior Court Judge Michael L. Wolverton granted Avery's motion to suppress. The State petitioned for review. We granted the State's petition, and we now reverse the superior court's ruling.

Factual and legal background

Alaska Statute 33.30.231(c) requires the Department of Corrections to monitor the phone calls of prisoners in whatever manner the Commissioner determines is appropriate:

[I]n order to preserve the security and orderly administration of the correctional facility and to protect the public, the commissioner shall monitor or record the telephone conversations of prisoners.... The monitoring or recording may be conducted on all calls or selectively or in some other limited manner as determined by the commissioner to be appropriate.

(The statute specifically exempts telephone calls between an attorney and a prisoner, as well as calls between the Office of the Ombudsman and a prisoner.) [3]

As we have already noted, the Department of Corrections routinely records inmates' telephone calls (except those to an attorney or the Ombudsman). Signs posted above the prisoner telephones warn that " telephone calls may be monitored and recorded." In addition, each prisoner phone call is preceded ...


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