ALVIN E. WASSILLIE, Appellant,
STATE OF ALASKA, Appellee.
Appeal from the Superior Court, Third Judicial District, Anchorage, Trial Court No. 3AN-10-1901 CR Michael L. Wolverton, Judge.
Josie Garton, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. [*]
Alvin E. Wassillie was serving a felony sentence at a halfway house in Anchorage when he walked away from the facility without authorization. A jury convicted him of escape in second degree. On appeal, Wassillie asserts the superior court should have dismissed the indictment against him because the State presented inadmissible hearsay to the grand jury. Wassillie also argues the superior court erred by allowing the State to later amend this indictment.
With regard to Wassillie's hearsay argument, we conclude that the hearsay Wassillie complains of was properly admitted because it fell within the business records exception to the hearsay rule. And with regard to the amendment of the indictment, Wassillie did not object when explicitly given the opportunity, and we find no plain error.
Wassillie was in the custody of the Department of Corrections, serving a sentence for a felony conviction. In early 2010, the Department placed Wassillie on prerelease furlough status, and they transferred him to the Parkview Center - a halfway house run by a private corporation under contract with the Department.
On February 19, 2010, Wassillie left the Parkview Center on a pass for the purpose of searching for a job. He returned a few hours later.
Around the time of Wassillie's return, members of the Parkview Center staff were notified that someone had brought vodka into the building (in violation of the facility's rules). After an investigation, the staff concluded that Wassillie had tossed the vodka into the building through an open window. One of the staff contacted Wassillie and told him to wait in the lobby. This staff member then called the Department of Corrections to have an officer come and take Wassillie to jail.
But before the corrections officer arrived, one of the other Parkview inmates notified the staff that Wassillie had left the building. Staff members checked Wassillie's room, they paged him twice, they looked throughout the building, and they conducted a head count of the residents - but they were unable to locate Wassillie. By examining a recording made by a security camera, they discovered that Wassillie had walked out of the building through the front door.
The police located and arrested Wassillie later that night, approximately three miles from the Parkview Center.
Wassillie was initially indicted for second-degree escape as that crime was defined by the pre-2012 version of AS 11.56.310(a)(1)(A) - that is, under the theory that Wassillie had unlawfully removed himself from a correctional facility while under official detention. The jury at Wassillie's first trial was unable to reach a verdict on this charge, and the court declared a mistrial.
After his first trial, Wassillie filed a motion to dismiss the indictment on two grounds: first, that the State had presented inadmissible hearsay evidence to the grand jury, and second, that the Parkview Center did not qualify as a "correctional facility". The superior court rejected both of these arguments.
Nevertheless, prior to Wassillie's second trial, the State filed a motion to amend the indictment - by dropping the "correctional facility" theory of prosecution and instead charging Wassillie with second-degree escape under the clause of the statute that forbade removing oneself "from official detention for a felony".  When the superior court asked Wassillie's attorney for his position on the State's motion, ...