TRACY G. HUTTON, Petitioner,
STATE OF ALASKA, Respondent Court of Appeals Nos. A-10836, 7014
Petition for Hearing from the Court of Appeals of the State of Alaska, on appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Patrick J. McKay and Jack W. Smith, Judges. Superior Court No. 3AN-08-11797 CR.
Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for Petitioner.
Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for Respondent.
Before: Fabe, Chief Justice, Stowers, and Maassen, Justices. [Winfree and Bolger, Justices, not participating.].
A man was arrested and charged with three counts of weapons misconduct. After the first two counts were tried to a jury, he waived his right to a jury trial and the third count was tried to the court. He was convicted and appealed, arguing that he had not effectively waived his constitutional right to a jury trial. The court of appeals affirmed his conviction, holding that substantial evidence supported his waiver. We granted his petition for hearing to decide the appropriate standard of review for the waiver of the right to a jury trial. We now conclude that an
appellate court should review the superior court's factual findings for clear error and its ultimate conclusion regarding the waiver's constitutional validity de novo because whether a defendant made a constitutionally valid waiver is a mixed question of law and fact.
At oral argument to this court, the State conceded the defendant was not advised of an essential element of the third count and that he was misadvised of the elements of his offense. Because the defendant was given incomplete and misleading information about the charge for which he was being asked to waive his right to a jury trial, we conclude that his waiver was constitutionally defective. The court of appeals' decision is reversed, and the case is remanded to the superior court for a new trial.
II. FACTS AND PROCEEDINGS
On March 30, 2008, Tracy G. Hutton and Amanda Topkok were parked near Tikishla Park. A truck pulled up beside them, and a shot was fired into their vehicle, hitting Topkok in the shoulder. Hutton decided to follow the truck instead of taking her directly to the emergency room. He followed the truck until it stopped at a red light and fired three to four times at the truck with a handgun. Afterwards, Hutton took Topkok to Alaska Regional Hospital and drove away.
The State charged Hutton with weapons misconduct in the first and second degrees. Because he had a prior felony conviction, the State also charged him with weapons misconduct in the third degree: " knowingly possess[ing] a firearm capable of being concealed on one's person after having been convicted of a felony . . . by a court of this state, a court of the United States, or a court of another state or territory."  Recklessness is the applicable mental state for the circumstances of this offense.
The three charges were tried in a bifurcated proceeding, with the first two counts decided by a jury. A special interrogatory asked the jury if Hutton knowingly possessed a concealable firearm. The jury returned a verdict of guilty on the charge of weapons misconduct in the first degree but not guilty on the charge of weapons misconduct in the second degree, and found that Hutton had knowingly possessed a concealable firearm. After the jury returned the verdict, the parties and court ...