*1 1358 AFFIRMED, implied agreement pay
amounts to an except ownership as to of the item, the demanded rent. kitchen As cabinet/sink. to that judgment is REVERSED and the case is In our shows view record REMANDED for further agreement implied pay the rent demand opinion. accordance with this sale, ed. After March April 1,1987 Bank on sent a certified letter JJ., MOORE, RABINOWITZ and partners to each of the AREO and Ver participating. Frol, Interior, manager non of and the only shareholder Interior who was not partner,
an AREO which contained a de
mand “that all rents due under rental
agreements and or leases be transferred to Thereafter, April Bank.” on
another certified letter was sent referring
Bank to Interior leases
demanding April, rent for as as well
rent four months. HAMILTON, Appellant, Paul argues appeal
On Interior that the let- April ters insufficiently and 9 are clear statements the Bank’s intent. This con- Alaska, Appellee. STATE April tention is without merit as to the letter. lease to each of the tenant No. A-2341. occupied by areas explicit- Interior is there Appeals Court of ly to, Alaska. figure referred a total rent due at lease rates stated. April 14, 1989. also Interior that the facts do not clearly implied acceptance pro- show of the
posed Again, disagree. rental amount. we protest
Interior did April letter of any
at continuing occupan- its
cy premises. fact counsel for
Interior, 5,May 1987 at the initial hear-
ing entry on the forcible and detainer as-
pect of this explicitly affirmed that possession
Interior is “in under a valid
lease; effect, that the lease is it’s never
been terminated.” Counsel further stated regard- lease “the would continue on action_” less of foreclosure Interi- implicitly acknowledged also govern, in
leases its answer complaint. alleged
initial Interior it possession entitled continued of
premises. only Interior could had a possession premis- to continued leases,
es under the not as tenant
sufferance.
CONCLUSION judgment in No. is AF- S-2584 judgment
FIRMED. The S-2309 is No.
OPINION SINGLETON, Judge.
Larry Paul Hamilton was convicted degree, of sexual assault in the first felony, in an unclassified violation AS 11.41.410(a)(1). Judge Peter A. Michalski dangerous found that Hamilton had used a perpetrating knife—in his instrument —a subject offense and was therefore presumptive ten-year sentence. AS 12.55.- 125(i)(2). ag- He also found a number gravating factors and sentenced Hamilton twenty years years suspended. with five placed probation for five Hamilton was years completion prison of his sen- after challenging appeals, his tence. Hamilton his We will deal conviction and sentence. order, contentions in set- with Hamilton’s ting appropriate facts where neces- out the sary to illuminate our discussion. pros that the Hamilton first permitted improper to make ecutor was and, pre-arrest silence comments on inferentially, post-arrest on his silence. Ohio, 610, 617-19, Doyle 426 U.S. See (1976); 2240, 2244-45, L.Ed.2d 91 S.Ct. State, 656 P.2d Bloomstrand v. (Alaska App.1982). and Hamil-
The record reflects that C.M. together C.M.’s vehicle ton were May morning hours of 1986. C.M. sexually assaulted that Hamilton testified concedes during this time. Hamilton her claims that C.M. activity, but he sexual alleged as- reported the consented. C.M. examined police and was sault to the physician. description of Daly heard a
Officer John thought Hamilton. Po- suspect Advocate, Dieni, Asst. Public Michael to Hamilton’s home then went lice officers Advocate, McGee, An- Brant Public searching for a they were told him chorage, appellant. if he asked Hamilton prowler. The officers Gen., Woelber, Office Tonja Atty. Asst. asking specifically anything, had seen Anchor- Sp. Appeals, Prosecutions Hamilton had come home. time he what Gen., Schaible, Berg Atty. age, and Grace home between he had arrived indicated that Juneau, appellee. a.m., dropped off having 2:30 been 2:00 and he had and that acquaintance by a male testimony indicated BRYNER, C.J., nothing. C.M.’s and COATS seen Before ap- off at dropped Hamilton she had SINGLETON, Judges. Q. proximately 4:38 a.m. Hamilton did say anything Did having about police having gone mention to the been with to Wasilla?
C.M. A. No. During statement, opening prose- Q. say Did anything having cutor said: dropped been off miles 1.2 home? police tell Paul didn’t *3 officers, yeah, good hey, I a had time last No, A. he didn’t. night. wife, my Don’t tell but lady this mistrial, or, Defense counsel a moved for got really and I it on. He say didn’t alternative, in the for the court to strike that. never police He told the that he this exchange grounds the that the ex- had anyone. had intercourse with He change to impermissible amounted com- police the never told he had been with ment on Hamilton’s to silence. The police He never told the he’d [C.M.]. mistrial, court denied the motion for but any night. been with woman that And granted the motion to strike. The court police the never told that had taken gave following the curative instruction to gone with and taken her out [C.M.] her— jury: the per- to a remote area and forced back with us and we are on form sexual acts on him. He told the record in the case of State Alaska police, I came home 2:00 around or 2:30 versus P. Hamilton. Ladies and morning, this and it was a male friend gentlemen, you there left was an dropped who me off. He had his chance objection questions to the last five to tell police the that he had intercourse their responses from the witness. The wife, with a not woman but he didn’t. court has ruled that properly that was And without consent. This is a [C.M.’s] objected words, In other to. it was cor- degree. case of sexual assault in the first rect object to that the last five Defense questions responses counsel moved for mistrial are to be prosecutor’s by you based on the your reference to considered deliberations. police. You are what Hamilton did not tell to draw no inferences from the volunteering judge provisionally motion, defendant’s denied the additional early statements about events permit par- but indicated that he would morning May, 19th of issue, ties to brief the and he would obtain transcript argument so he could circumstances, Under the we are satis- precisely better understand what was said. fied that the trial court’s curative instruc- any tion removed error the trial
Later, during direct examination of Offi- court did denying not abuse its discretion Weeks, officer, cer investigating Gerald State, a mistrial. See Roth v. following exchange place: took (Alaska App.1981) (citing Maze v. Q. During morning May 19th State, (Alaska 1967)). you contacted Mr. Hamilton But see Dorman v. say anything having did he about (Alaska 1981). previous been with eve- [C.M.] ning? Hamilton testified trial that No, A. he didn’t. sexual contact which occurred between himself was and C.M. consensual. Hamil Q. say anything knowing Did he about during ton also testified course of [C.M.]? C.M., his sexual involvement with a car had No, A. he didn’t. stopped their He near location. further Q. say anything having Did he about gotten testified that C.M. had out of her met a woman? vehicle and contact the driver of made A. No. other car. Hamilton then testified that on defense “going she comment counsel’s failure to him that advised C.M. bring up the matter with C.M. cover something ... think of cross-examination. We find no error. ass.” [her] argu- Hamilton next makes a number of argument, prosecu- During rebuttal regarding ments the trial court’s commented, “Something mys- tor aggravating factors and the trial court’s car, for the first that we hear about tery enhancing beyond ten-year his sentence explain morning, he can’t this because presumptive specified term for one who him tying in the case physical evidence [the dangerous perpetrat- uses a instrument in offense].” ing degree. assault in the first a sexual for a mistrial Defense counsel moved particularly challenges findings: He comment, claiming on this based history that Hamilton’s attempt comments were an prosecutor’s involving aggravated includes not believe him say jury, to the do “to behavior, repeated instances of assaultive *4 this, it tell did not make he did not because 12.55.155(c)(8); that Hamilton AS police....” explanations to the voluntary history had a criminal instances argue not that counsel did Defense laws, of conduct violative of criminal im- any protective order violated comment punishable as felonies or misde- whether striking of in trial court’s earlier plicit meanors, in similar nature to the offense pre-arrest silence. questions regarding he was sentenced. AS which argued not prosecutor that she was The 12.55.155(c)(21). silence, pre-arrest but rath- commenting on hearsay Essentially, the state offered ev- bring up counsel’s failure to er on defense that Hamilton had sexu- idence to establish in connection with his “mystery car” two other In one ally assaulted women. The trial of C.M. earlier cross-examination ultimately convicted of Hamilton was motion, finding that court denied the degree. second assault in the fourth silence, “not a comment comment was prosecuted. did not not case was statement, argument....” an a but cross-examine either of the com- ask to did, however, He enter plaining witnesses. that it is conceivable The state concedes sexually denial that he had a testimonial imply comment could prosecutor’s that argues of them. He that assaulted either give not that Hamilton did jury to the de- enters a testimonial where a defendant in- exculpatory statement that post-arrest hearsay to verified claims nial “mystery car.” cluded the detail behavior, the state must either However, a mere that the state declarants, una- establish their produce the trigger enough to implication is not the issue. vailability, or abandon In the the constitution. protection of “ view, ‘the question is whether points state’s that the evidence out state sentencing, A.R.E. naturally necessarily take apply not jury would rules do Supreme 101(c), the United States on’ and that argument] to a comment [the [the right to held that a defendant’s Court has remain of his exercise defendant’s] his accusers cross-examine confront and Barton, v. F.2d States 731 silent.” United v. sentencing. Williams apply at does not (quoting Knowles Cir.1984) (10th 669, 675 1079, 241, York, 93 69 S.Ct. New 337 U.S. (10th States, 168, 170 v. United 224 F.2d argues (1949). The state L.Ed. 1337 Cir.1955)). agree with the state We by clear aggravating factors and rebuttal comment prosecutor’s evidence, judge convincing necessarily” be “naturally and would even information may rely on verified on Hamilton’s as a comment understood testimonially denies though defendant was no because there post-arrest silence it. prosecu- agree with the specified. We have of this state courts jury appellate more suggestion tor’s variety arguments in a similar as a considered the statement reasonably interpret 1362 State, Nukapigak cases. v. 562 prosecutions. See accusers in sexual abuse We (Alaska 697, 1977),
P.2d have also hearsay 701 on re considered the use in aff'd (Alaska 1978); resolving disputes prac- factual hearing, Agw 576 P.2d motion 846, (Alaska State, tice. State, 750 See Adams v. 704 P.2d v. P.2d iak (Alaska App.1985). We concluded that the App.1988); State, 665, v. 675 P.2d Pickens rely state on affidavits to contra- (Alaska App.1984); State, 670-71 Dexter v. dict a testimony. defendant’s sworn (Alaska Id. at 144, App.1983); 672 P.2d Wil 797-98. State, also See Alexander State, 971, (Alaska 662 P.2d lard v. 976-77 (Alaska 1980) (adopting 474-75 App.1983). rule). similar This does not easy issue admit hand, answer. one as the On state recognize grand We that both out, points state and federal courts both practice and motion differ willing have been to consider verified infor- significant regards. to a though mation even adverse defendant First, normally both will deal contem upon hearsay it sentencing. was based poraneous Second, events. those events hand, On other the courts this state normally contrast, occur within Alaska. expressed hearsay concern a defendant’s may span criminal career variety beyond of contexts the trial of the many years beyond extend well See, case. e.g., Gieffels, State v. Nevertheless, Alaska. we believe that the (Alaska 1976) (grand jury) 462-65 risks of the abuse of are sufficient Taggard v. 242-43 ly important that the state should be re *5 (Alaska 1972) (grand jury). quired prove unavailability the of declar- ant before using hearsay witnesses their supreme held, In Gieffels, the court in against declarations a defendant who de interpreting Alaska Rule of Criminal Proce nies allegations the under oath and submits 6(r), hearsay dure could not be true, to cross-examination. This is at least presented grand in jury before the ab in cases, one, those such as this where the justification. sence of compelling The su hearsay state relies on which would not be preme compelling justifica court construed admissible at trial and which is used equate tion to with necessity suggest prove aggravating by factor clear necessity normally ed require and convincing evidence. Given the differ finding unavailability of the the of declar grand ences between jury proceedings and Gieffels, ant. In Tag at 464-65. sentencing, we believe the court gard, supreme court indicated that if should be more in flexible unavaila used, hearsay be reliability was to of bility. Moreover, where adverse witnesses hearsay declarant must be established state, are of located out or a substantial and the declarant’s statements corrobo house, distance from the court the court rated. Taggard, P.2d at 242-43. might permit depositions telephone or in legislature incorporated require- terrogations preference in requiring reliability ments of and corroboration into bring state pay the declarants to the permits, AS 12.40.110 which under limited hearing. sentencing Compare Alaska circumstances, hearsay the use of state- R.Civ.P. 991 with Alaska 38.1.2 R.Crim.P. grand ments Some opportunity child reasonable for cross-ex- provides: (2) 1. Civil stipulation parties, Rule 99 Without of the may non-dispositive court dentiary conduct or non-evi- (a) Telephonic Partic- Authorization for telephonic partic- with ipation. counsel, ipation by parties, or one more of the counsel, (1)Upon stipulation of all judge. or the may hearing telephone court (3) Upon request, any party or counsel telephonic participation by conference with participate telephonically be allowed to in the counsel, parties, one or more of the witnesses argument dispositive or in the ex- matters judge. or the however, regarding sentencing. guments Because provided, be animation should Where the declarants are possible.3 where calls for our remand a new in denies the defendant truly unavailable opportuni- this will have an oath, then we be- allegations under their ty present arguments those to the trial state should bear the burden that the lieve circumstances, do court. Under we veracity of each declarant proving of the case law doctrine believe corroborating testimony. or prevent complete full and resen- should 1131 at See, Murray v. e.g., tencing in this matter. 17, 1989) 1136-1137, (Alaska App., March judgment superior court is court (outlining which the trial factors determining AFFIRMED, part, REVERSED, in the reliabili- in consider should hearsay and the cor- ty of declarants child this part, and case is REMANDED for testimony in connection of their roboration resentencing. cur- jury presentations under grand with 12.40.110). rent AS COATS, Judge, concurring. did to show The state not undertake presump- In this case Hamilton faced a unavailability declarants Judge of ten years. sentence Michal- tive court’s Nor was the trial this case. aggravating found that factors ski several establishing the verac attention focused applied to Hamilton’s sentence. Two crit- ity the declarants and the corroboration testimony. it is nec Consequently, aggravating their were that Hamil- ical factors resentencing. essary for us to remand for history included con- ton’s aggravated involving in- moots, duct to remand Our determination behavior, other ar- of assaultive AS 12.55.- present, Hamilton’s stances least for (c) pro- present public access to court physically be- amination of witnesses ceedings preserved the court. fore must accordance any proceeding court is In in which the law. proceed parte, the court authorized to ex non-appearing party or counsel contact the telephone provides: 2. Criminal Rule 38.1 justice in the receive interest (a) any proceeding at which defen- argument stipulation of evidence or without presence required under Criminal dant’s *6 parties. 38.2, 38(a), by Rule Rule as modified (5) may justice court in the interest present may right to be defendant waive the depositions good cause shown order that for telephone. request participate telephonically. be taken phys- to be waiver of the The defendant’s (b) following procedure Procedure. orally may on ically present be obtained telephonic par- concerning observed must be writing. allow or in The court record hearings: ticipation in court par- telephonic participation or more of one (1) partic- Hearings involving telephonic ties, any proceeding judge or the at counsel man- ipation be hearings. in die same must scheduled telephon- may allow The court its discretion. ner as other hearings, (2) participation of at bail telephonic participation is re- witnesses When ic court, hearing, hearings, shall quested, probation revocation hear- before omnibus arranging party designate responsible prose- ings or at trial with the consent responsible party parties or the call and The court and the defendant. cution payment pursuant to Adminis- of the call telephonic participation witnesses at allow Rule 48. trative hearings in discretion. other its (3) convening proceed- telephonic Upon (b) provisions AS 12.35.015 shall ing, judge shall: govern warrants the issuance of search date, name, time, (i) case case Recite the telephone. number, parties and names and locations of counsel, type hearing. and the Williams, light U.S. S.Ct. (ii) par- of all that all statements Ascertain in Stores v. the concerns voiced participants; all are audible to ties (Alaska 1980), in issue at sen are not P.2d 820 hearing (iii) instructions how the Give on McLean, tencing. Kotzebue Cf. conducted, including or- that in notice telephonic (Alaska 1985) (considering 1315-16 preserve speakers must iden- the record der to tify compara testimony depositions and under they speak. each themselves rules). ble civil be made A verbatim record must with Administrative Rule 35. accord 155(c)(8), had a and that Hamilton
history of instances laws, punisha-
violative of criminal whether misdemeanors, as or similar in
ble felonies to the offense for which he
nature 12.55.155(c)(21). sentenced. AS aggravating
These factors were on based
hearsay evidence that Hamilton had com- prior sexual Hamil-
mitted two assaults. sentencing hearing
ton testified at the alleged
denied that had committed these appears Judge
prior assaults. It Mi- placed great weight on
chalski the evidence prior
that Hamilton committed the as-
saults; twenty sentenced Hamilton to
years years suspended. with five Under circumstances, I quarrel
these no majority’s requiring decision more than presented which the state at
sentencing to show that commit- I
ted assaults. am not confi-
dent, however, every case where the
defendant denies a material matter we require
should the state either to call a testify sentencing hearing
witness prove unavailability a witness using hearsay statements. I would
prefer case-by- resolve this issue important
case basis. It is for the trial as
court have much reliable information possible
as a defendant.
I am concerned that the rule which the may unduly
court announces in this case
restrict that information in other cases. *7 RICKS, Appellant, Thomas Holland, Marcia E. Asst. Defend- Public er, Fairbanks, Fabe, and Dana Public De- Alaska, Appellee.
STATE fender, Anchorage, appellant. No. A-2377. Woelber, Gen., Tonja J. Atty. Asst. Of- Special Appeals, fice of Prosecutions and Appeals Court of of Alaska. Schaible, Anchorage, Berg Atty. and Grace April Gen., Juneau, appellee. C.J., BRYNER, Before and COATS SINGLETON, JJ.