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Jordan v. State

Court of Appeals of Alaska

September 29, 2017

LEWIS JORDAN JR., Appellant,
v.
STATE OF ALASKA, Appellee.

         

         Appeal from the Superior Court, Third Judicial District, Anchorage Trial Court No. 3AN-12-3068 CR, Larry D. Card, Judge.

          Megan M. Rowe, Denali Law Group, P.C., Anchorage, and Michael Barber, Barber Legal Services, Boston, Massachusetts, under contract with the Office of Public Advocacy, Anchorage, for the Appellant.

          Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee.

          Before: Mannheimer, Chief Judge, Allard, Judge, and Coats, Senior Judge. [*]

          OPINION

          COATS SENIOR JUDGE

         Lewis Jordan Jr. was charged with various counts of assault and controlled substance misconduct. At the close of the State's case-in-chief at Jordan's trial, the prosecutor announced that the State wished to dismiss one of the assault charges with prejudice (because the State was unable to locate two crucial witnesses). Jordan's attorney stated that he did not oppose the State's dismissal of the charge, and the charge was dismissed.

         Jordan now argues that it was plain error for the judge to allow the State to dismiss this assault charge without Jordan's personal consent, and he claims that this error prejudiced him because it affected the jury's deliberations on the remaining charges.

         For the reasons explained in this opinion, we conclude that a defendant's personal consent is not required when the State dismisses a charge with prejudice. The trial judge committed no error, and we therefore affirm Jordan's convictions.

         Background facts and proceedings

         Anchorage police officers arrested Jordan for assaulting a woman, P.S. In the course of the arrest and the ensuing pat-down search of Jordan's person, the officers discovered drugs. When the police found the drugs, Jordan became agitated and he started fighting with the officers. The officers wrestled with Jordan for several minutes before they were able to restrain him.

         Based on this episode, Jordan was charged with several crimes, including one charge of fourth-degree assault against P.S., based on the events that took place before the officers arrived.[1]

         At the close of the State's case-in-chief, the prosecutor announced that the State intended to dismiss the assault charge involving P.S. because the State had been unable to locate the two witnesses it needed to prove this charge:

Prosecutor. Your Honor, the State is prepared to rest its case. But before doing so, I'd like to explain that we were unable to locate [a witness at the apartment building] although [we served him with a] subpoena. We were [also unable] to locate [P.S.] Based on that, the State will ...

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