*1
87
existing separate
apart
Clayton’s
ated and
and
alone did
from
not meet
burden under
relationship
particular
with the
employ-
23.20.525(a)(10).8
AS
er,
enterprise
that will survive termina-
We are
by
somewhat concerned here
relationship.”
tion of that
Schuffenhauer
incomplete
seemingly
investigation that the
Department
Employment
Security, 86 Department of Labor undertook before as-
(1975) (cita-
Wash.2d
P.2d
sessing
Clayton
taxes.
It would have
omitted).
tion
Clayton claims that he met
preferable,
been
in our opinion, for field
by
this
his
showing
test
contractors
attempted
auditor
to have
to con-
Anderson
equipment
owned their own
and had been
tact
the individuals who had worked on
employed
loggers
other
in the area. We NC-88,
spoken
have
again
and to
with
legiti-
believe that
the commissioner can
Clayton
Clayton had
him the
after
sent
mately
greater showing
than
require
this.
requires
clearly
contracts. But
statute
Cameron,
Baker v.
240 Or.
work employ- two or three employers
ers. When work for such
not available these men become unem-
ployed.
Id. 401 has Clayton P.2d 696. not shown occupied his contractors a different position.5 We therefore conclude that GILBERT, Appellant, David A. commissioner was warranted in holding failed to his Clayton carry burden of proof (C). under Alaska, Appellee. STATE of singled special Clayton out for con No. 3406. sideration his contract Don Pearl Supreme Court of Alaska. Trucking.6 owning A rig trucker his or her may an independent well be contractor for Aug. 1979. purposes Employment Security Act.7 Paper Regis Company, See St. Forest Prod
ucts v. Unemployment Compensa Division Commission, (Mont. 1971).
tion presented Clayton
But no evidence of the
relationship between Don Pearl and him
other the receipt indicating than that Pearl
had furnished services. We find that
commissioner acted within the bounds of his finding
discretion in this description Indeed, likely: (A) 5. field auditor 7. The free Anderson testified that trucker would be from only control, logging (B) operations employing he knew of about outside three unit’s work business, employing places in the Nenana area. of all the unit’s indepen- (C) customarily engaged be in an $11,792.00 dent trade. paid “[fjurnish 6. He Don Pearl equipment supplies logs and haul to load addition, rely from Timber State Sale 88 to North Nena- In the commissioner could NC apparently not have na.” the fact that Pearl did Don registered in Fairbanks. a business license *2 yards him,
was some to 20 ahead of down, him Williams saw reach as if draw gun. ground, Williams hit the saw a flash hand, from the man’s and heard what gave up sounded like a shot. Williams chase and returned to the hotel. *3 time, At the same a about cab driver was driving along F Street between 5th and 6th man, when he a He heard shot. saw a waving gun, a run behind his cab. The dispatcher, driver called his and the dis- patcher police. called the thereafter, Shortly police brought the a identification, suspect to the hotel for but Bradley and Williams stated that this was not right man.
At morning, about 3:00 a. m. that same a Y.M.C.A., resident of the which is located at Streets, 6th F conducting and was a routine Gilbert, bed check. He found David who registered guest, was not a in of one upstairs leave, rooms. Gilbert was asked to but then occurred people it at the Y that description Gilbert matched a of Shef- holdup they field House man which had Therefore, by been given police. they Tatter, Carpeneti, Walter Sue Ellen Asst. asked Gilbert to return to the Y. Defenders, Shortell, Public Brian Public De- fender, Anchorage, appellant. for m., police At approximately 3:30 a. brought Bradley Williams and over to the Scukanec, A. John Atty., Asst. Dist. Jo- desk, Y. was facing away Gilbert at the Balfe, seph D. Atty., Anchorage, Dist. Av- from the oth- witnesses. There were a few Gross, Gen., Juneau, Atty. rum M. ap- for er lobby, Bradley men in Y testified pellee. that police anybody “the officer asked me if in lobby attempted was man who BOOCHEVER, J., Before and C. RABI- . rob me . .” Williams testified NOWITZ, CONNOR, BURKE and MAT- us, guy that “the was officer asked this the THEWS, JJ. ” said, saw, yes . . . and I Bradley Both and Williams identified David OPINION being person Gilbert com- as who had CONNOR, Justice. attempted robbery mitted the and the as- sault, although Bradley’s identification 6,1976, At 2:30 a. m. on November a man The driver came after some hesitation. cab gun attempted armed with a to rob the brought was not to the Y.M.C.A. to make Anchorage. Sheffield House Hotel in Mi- an identification. He identified for Gilbert Bradley, clerks, chael night one of the the first time trial. help, called for and the bandit fled. Clifton Williams, the other clerk on came duty, out by police Gilbert at the was searched of a back office and ran after the Y, robber. weapon Police but no was found. Bradley did not tell Williams that the man searched the area around Sheffield was armed. Williams saw a early man the House next Y.M.C.A. hotel, alley behind the morning. department brought and scuffled with fire a The him escaped. until the man build- rooftops nearby When man ladder so that the of crime instruc- may not misdefine the in his gun No was ever ings could be-searched. every in the element police footprints jury, did find tions to the found. roof, beyond however. The a reasona- proved on the crime must be snow Y.M.C.A. escape to one of the prints led from a fire ble doubt. windows.
Y’s
arguendo
assuming
Even
attempted
rob-
was indicted
Gilbert
the crime of assault
prosecutor misdefined
dangerous weapon, and
bery, assault with
jury, the rela
grand
in his remarks to
during the
commission
use of
firearm
holdings
Winship and
tionship of the
Kibbe
jury,
a trial
Following
Gil-
an assault.
tenuous,
In this
problem
at best.
to this
all
counts.
guilty
was found
three
bert
case,
allegation that
there is no
years
to two
on the
was sentenced
Gilbert
regarding
instructed
jury
improperly
was
count,
attempted
four
robbery
assault,
or that
crime
the elements of the
ten
weapon,
with a
assault
prove every element
the state failed to
assault,
during
use
years for
of a firearm
Ap
beyond
the crime
a reasonable doubt.
concurrently.
with the sentences to run
Six
*4
reverse,
us
in
appellant wants
to
parently
were
of the sentence on the last count
years
trial,
proceedings
of the
spite
proper
suspended.
tongue
slip
prosecutor’s
because of
appeals
Gilbert
from
grand jury.
before
sentences, raising
following
issues:
more
argument
This
becomes even
failing
err
to
(1) Did the
of the
reads the full text
tenuous when one
III of the indictment
dismiss Counts II and
jury
grand
At the
prosecutor’s remarks.
prosecu-
owing to the manner in which the
two
assault
prosecutor
read the
relevant
grand jury?
tor defined “assault” for
ex
jury. He then
grand
statutes to the
re-
(2)
have been
prosecution
eyes
Should the
assault
plained
“an
the two assault
quired to elect between
offer
either
use of violence or the
law is
they
were multi-
ground
position
counts on the
by somebody who’s in a
of violence
plicious?
objects
Appellant
to deliver that violence.”
that “the offer of
ground
this on the
(3)
procedure
vio-
Was
identification
improperly refers to a
language
violence”
process rights?
due
lative of defendant’s
assault,
concept
in which the victim’s
tort
sen-
(4)
partially
Did the
consecutive
injury is control
apprehension
possible
dangerous
imposed
tences
assault with a
specific
that a
intent
ling.
urges
He also
while armed violate
weapon
assault
be
injure should
an element of
victim
jeopardy?1
double
weapon.
dangerous
with a
assault
966,
State, 578 P.2d
971
In Menard v.
I
1978),
approvingly from
(Alaska
quoted
prosecutor
Appellant argues that
“[i]f
Oregon ease which defined assault
an 1889
or
elements of a crime to
omits misstates
as follows:
jury
grand
contemplating
an indictment
“
must be
‘to constitute an assault there
grand jury
improper
has an
so
attempt
injury
to the
an intentional
do
crime,
resulting
in
conception of the
violence,
and that
of another
person
process
must
on due
dictment
be dismissed
be
with a
attempt
coupled
must
such
grounds.”
then cites In re Win
Appellant
attempt-
injury
do the
present ability to
1068, 1072,
364,
358,
ship, 397 U.S.
90 S.Ct.
”
ed.’
368,
(1970),
Henderson
25 L.Ed.2d
375
625,
300,
Kibbe,
145, 153,
1730,
P.
628
Godfrey,
v.
17 Or.
20
431
97 S.Ct.
U.S.
State
“violence” in
203,
(1977),
(1889). The use of the word
52
211
as authori
L.Ed.2d
obviously one
judge
assault
ty for the
that the trial
the definition of
propositions
ing,
of ten
should be
a minimum sentence
error as
last issue
1. The state concedes
to this
weap-
dangerous
State,
imposed
(Alaska
with a
assault
under Whitton v.
91
offense;
acceptable way in which to
provision,
describe the
or a distinct
479 P.2d at
crime. Menard
lays
appellant’s
also
to rest
reviewing
After
traditionally ap-
tests
arguments,
other
as we there held that
plied to
jeopardy problems,
double
we con-
jury
did not have to
specific
find
“[t]he
cluded that “the two separate statutory
intent
any particular
do
kind or degree
crimes constitute the ‘same
pur-
offense’ for
of harm to the victim in order to find
poses of
jeopardy.
single
double
A
sen-
guilty
Menard
of assault
with a
tence was all that
properly
could
be im-
weapon.
State,
Thompson
See
444 P.2d
posed under the double jeopardy provision
(Alaska 1968);
174
Burke v. United
of our constitution.”
In (Alaska procedure Whitton v. that the was 1970), the appellant unnecessarily suggestive challenged on and conductive to double jeopardy grounds appellant’s his conviction misidentification. As robbery trial coun- and for use object of a firearm sel during the did not to admission of commis- identifica- sion Whitton, of the same robbery. testimony grounds In tion we on the of the im- concluded proper that it was pre-indictment showup, appellant unclear whether the legislature intended the use of a urges firearm now us to consider the issue under statute merely to be penalty a enhancing plain error doctrine. of constitutional dimension must ought not to ed errors
The state maintains
rule, citing
plain
depth
plain
Johnston
under the
invoke the
error
be
all
examined
State,
(Alaska 1971).2 Ap
strong
ba-
error rule would circumvent
showup was rea
argues
that,
that the
pellee also
to
in order
policy
requires
which
sic
unnecessarily sugges
neither
sonable and
appeal,
objection
an error for
preserve
to
In addition
unduly prejudicial.
tive or
trial
in the
court.
must have been made
ar
citing
supra, appellee
Johnston
must retain some
Appellate courts
discre-
attorney cross-ex
gues
since
Gilbert’s
tion,
claims are
when constitutional
even
witnesses effec
amined the identification
asserted,
they
far
will
as to when
how
regarding
Y.M.C.A.
tively, any error
of
to
evidence as
review the admission
harmless.3
showup was rendered
registered in
objection has been
which no
47(b) states:
Rule
court.
Criminal
or
af-
Error. Plain errors
defects
“Plain
we have un
In the case before us
rights may be noticed
fecting substantial
a
whether
tenable
dertaken to consider
brought
although they were not
the identification of
presented
claim is
attention'
the court.”
Gilbert,
totality
under the
of circumstances
that under
We have often noted
it,6
unnecessarily sug
so
surrounding
was
brought
not
this rule an asserted error
this
considering
exigencies
gestive,
not be
of the trial court will
attention
case,
to a
of due
that it amounted
violation
sub
appeal unless it affects a
noticed on
has led us to
process. Our consideration
obviously prejudicial.4
is
right
stantive
argument for
admis
conclusion that the
or immedi
the error is not obvious
Where
strong,
is
sibility
this evidence
ately
should abstain from
apparent we
admissibility
not
argument against
its
is
it, for
basic
full-scale examination
words,
In
the claimed
compelling.
other
object
offered
rule is that
failure
obviously prejudicial.
hold
error is not
We
objection.
er
When
evidence waives the
admitting
not
trial court did
err
that the
concerning
rights are as
rors
fundamental
evidence.7
the identification
serted,
greater
there
inclination
part
appellate
to examine such
of an
IV
all
But not
constitu
claims on the merits.5
Whitton v.
un
The state concedes
under
review
require
tional claims
extensive
*6
1970),
State,
(Alaska
trial
P.2d 302
the
say
rule. To
that assert-
479
plain
der the
error
500,
State,
is,
(Alaska 1968);
appellant points
373
in his
v.
P.2d
2.
out
Bowker
Johnston
as
brief,
case,
(Alaska 1962).
reply
distinguishable.
the
505
In that
object
ad-
to the
effect of counsel’s failure to
39,
State,
(Alaska
was “unusual-
identification
mission
ly
in-court
v.
442 P.2d
43
5. Hammonds
State,
326,
1968);
was no record
327
severe” because there
P.2d
Goresen v.
432
States,
1967);
lineup
place,
(Alaska
sus-
390
where the
picion
had taken
whether
Alexander v. United
Johnston,
101,
1968).
(5th
time centered on
103 n. 3
Cir.
had
F.2d
attorney
had an
whether the defendant had
present,
188, 196,
had made a valid
Biggers,
or whether Johnston
Neil
409 U.S.
93 S.Ct.
6.
present.
right
401,
375,
(1972);
counsel
of his
to have
waiver
409
Stovall v.
L.Ed.2d
34
circumstances,
1967,
293, 302,
Denno,
to con-
we refused
18
Under these
S.Ct.
U.S.
87
388
lineup
State,
validity
pretrial
1199,
(1967);
under
of the
558
sider the
Blue v.
L.Ed.2d
1206
plain
636,
(Alaska 1977).
In the
If we were to remand the case the
10-year
There is a
minimum sentence for
simply
could
vacate the sentence un
years
first offense and 25
for a subse-
der Count II
reimpose
the sentence
quent offense.
III,
under Count
although
probationary
period could
years.11
not exceed five
(emphasis added).
House Journal 434
imposed
sentence
Thus,
as to Count III by
appears
it
me
strong argu-
that a
represents
trial court
its best
legislature
as ment can be
made
in-
appropriate
punishment for Gilbert’s
exempt
tended to
such violations from the
crimes.
point
We see no
in remanding
operation
of those statutes otherwise allow-
merely
case. We
ing
direct that an
suspend
amended
the trial courts
execution
judgment be
reflecting
entered
imposition
part
sentence
or
of all or
of a sentence of
I,
of two
attempted robbery,
imprisonment.
Count
12.55.080-090. The
See AS
during
period
upon
8. AS 11.15.295. Use of firearms
for a
the terms and condi-
person
commission of certain crimes. A
who
tions as the court considers best.
during
uses or carries a firearm
the commis-
assault,
robbery,
murder, rape,
sion of a
bur-
not, however,
deciding,
10. We
without
glary,
kidnapping
guilty
felony
or
of a
authority
that,
there is substantial
which holds
upon
punisha-
conviction for a first offense is
sentence,
correcting
illegal
it is not viola-
*7
by imprisonment
ble
for not less than 10
jeopardy
impose
greater
tive of double
to
a
years. Upon conviction for a second or sub-
sentence than the one which is vacated. Bozza
sequent
section,
offense in violation of this
States,
160, 165-67,
v. United
330 U.S.
67 S.Ct.
imprisoned
the offender shall be
for not less
(1947);
this issue in its brief. require in fact
If 11.15.295 does AS ten-year mandatory serve a
offender I imprisonment,
term assume suspending
trial the execu- action in court’s sentence
tion of six the defendant’s therefore, the order of illegal
was and that
suspension stricken without violat- could be provisions
ing jeopardy the double However,
state since constitution. or other-
state has failed brief this issue stat-
wise a of the urge such construction
ute, by my I concur in the decision reached issues, I share
colleagues. As the other
their views. Markham, & Fisch- Markham
Gerald W. er, Kodiak, appellants. Simeonoff, PETERSON, Speridon, Nick Gen., An- Atty. Gissberg, Asst. John G. Nornes, and Eric Peder Chris Russell Gen., Ju- Gross, Atty. M. chorage, Avrum Melhus, Appellants, neau, appellee. Alaska, Appellee. BOOCHEVER, STATE CONNOR, BURKE Before COOKE, Judge. MATTHEWS, JJ., and No. 3813. Supreme of Alaska. Court OPINION 3,
Aug. PER CURIAM. by jury were
Appellants convicted Kodiak, Superior in the court at district presiding, of Roy H. Judge Court Madsen waters, fishing in viola closed commercial 39.290(a).1 Their convictions tion of AAC by the court. On superior were affirmed appeal, they primarily this contend that denying their motion for erred acquittal. They argue that judgment of was evidence establish there insufficient fishing as those involved their identities 39.290(a) exposed 1. 5 tideland AAC reads as follows: ward extremities *8 water, salm- banks at mean lower low fishing prohibit- for salmon is Commercial specified regulations hav- on stream or as times rivers ed at all within the streams and ing particular application designated yards, of Alaska and within a radius of 500 areas. point streams or both seaward and landward from a beginning midway of a line the sea- between