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
...