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Shorty v. State

Court of Appeals of Alaska

August 7, 2009

Patrick L. SHORTY, Appellant,
v.
STATE of Alaska, Appellee.

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Doug Miller, Assistant Public Advocate, and Joshua Fink and Rachel Levitt, Public Advocates, Anchorage, for the Appellant.

Tamara E. de Lucia and Kenneth M. Rosenstein, Assistant Attorneys 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.

OPINION

BOLGER, Judge.

Patrick L. Shorty appeals his convictions for sexual assault in the first degree and three related misdemeanor charges. He argues that he could not be arrested without a warrant, and argues in the alternative that his arrest was not supported by probable cause. We hold that the police did not need an arrest warrant Before arresting Shorty for a felony, and we conclude that there was probable cause for Shorty's arrest.

We also conclude that the trial judge properly joined the sexual assault charge with the misdemeanor charges that developed when Shorty was arrested, and that there was sufficient evidence to support Shorty's convictions for resisting arrest and fourth-degree assault. But we reverse Shorty's conviction for providing false information to a peace officer because we conclude that the trial judge improperly allowed the prosecution to substantively amend that charge at the conclusion of the trial.

Background

On July 8, 2003, a young woman named B.A. encountered three men at the Anchorage Transit Center. After a brief conversation, the four began walking together towards the Carrs store at 13th Avenue and Gambell Street. As they walked through a vacant field, one of the men tripped B.A. and took her backpack. A younger man then held B.A. down while an older man raped her and repeatedly punched her in the face. The younger man raped B.A. after the older man had finished. The third man then alerted his companions that police were nearby, and the three men quickly fled on foot. Shortly afterwards, B.A. ran to a nearby patrol car and flagged down Officer Leonard Torres for help.

Officer Torres saw three men running from the scene. Chasing them down, Torres apprehended Thomas Leichty, whom B.A. identified as one of the three men who assaulted her. Leichty later told another officer that he could not remember his role in the assault because he was intoxicated. However, Leichty did recall that his friend-a man he knew as " Shorty" -had sexually assaulted B.A. Leichty also mentioned that he had been in prison with Shorty; using this information, officers were able to get the name of Patrick Leo Shorty from the Tundra Correctional Center.

After receiving Shorty's name, Detective Kenneth D. McCoy showed B.A. a photo lineup of suspects. B.A. chose two photos from the lineup, one of which was of Shorty. Proceeding on Leichty's statement, B.A.'s description of the crime, and her tentative identification of Shorty, McCoy applied for and obtained a search warrant for Shorty's DNA, clothing, and other biological material on July 16, 2003. This warrant was good for ten days. McCoy also had the police dispatchers issue a " stop-and-hold locate" directive, asking

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any law enforcement officials who contacted Shorty to detain him so that McCoy could execute the search warrant.

On July 26, 2003, the tenth day after the search warrant was issued, the police dispatcher received an anonymous tip that Shorty was near 10th Avenue and Ingra Street wearing a green trench coat. Officers Gregory Witte and Andy Cottle separately responded to the resulting dispatch. Witte responded first and found a man matching the description given by the dispatcher. Witte approached the suspect and asked the man to identify himself, and he responded that his name was " Harold Gregory." He initially said that he was born in July 1969, then said that he was actually born in 1968, and later suggested that his birthday was actually in August. He also did not know his social security number.

Witte attempted to confirm this information with the Alaska Public Safety Information Network database, but the name " Harold Gregory" registered no matches. At the same time, both Witte and Cottle also believed that the suspect was preparing to flee. When Witte then confronted the suspect about his inconsistent birthdays, he stopped talking. At that point, Witte decided to arrest the man-who was in fact Patrick Shorty.

The officers began to grab Shorty's arms, but he pulled the officers into a nearby alley. The officers took Shorty to the ground, and Cottle attempted to control Shorty's head while Witte tried to control Shorty's arms. During the melee, Cottle applied a vascular restraint that momentarily rendered Shorty unconscious; when he regained consciousness, he quickly resumed fighting. When Officer Christopher Ritala arrived, however, the three police officers were able to secure Shorty.

At the police station, Shorty detailed his account of the assault to Detective McCoy. According to Shorty, he could not remember his exact role because he was intoxicated, but did remember that Leichty had sex with B.A.

McCoy then obtained a new search warrant authorizing collection of Shorty's DNA because he believed that the previous warrant had expired. After obtaining samples from both Shorty and Leichty, the police compared them to an original DNA swab taken from B.A. The results showed that Shorty was almost certainly the source of the sperm sample contained in the swab from B.A. The results also indicated that Shorty was the likely source of a sperm sample contained in a penile swab taken from Leichty.

Shorty was then charged with two counts of first-degree sexual assault, [1] one count of resisting arrest,[2] one count of fourth-degree assault,[3] and one count of providing false information to a peace officer.[4] Prior to trial, he filed a motion to suppress all of the evidence stemming from his arrest-arguing that he was detained and arrested without a warrant and without probable cause. After two evidentiary hearings, Superior Court Judge Michael L. Wolverton ruled that the officers had probable cause to arrest Shorty and that no arrest warrant was needed.

Judge Wolverton also denied Shorty's motions to sever the charges for separate trials, to dismiss the indictment, and alternative motions asking the court to dismiss the misdemeanor charges or require a bill of particulars. But the judge granted Shorty's motion to suppress the statement he made to Detective McCoy following his arrest because he concluded that the statement had been coerced by McCoy's threat of harsher treatment.[5]

Shorty was convicted on all charges after a jury trial, and sentenced to a composite term of imprisonment of 31 years and 30 days. Shorty now appeals to this court.

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No Warrant is Required for a Felony ...


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