*1 Troop- fact that by the is attested cessful several only managed to hear
er Lowden between the entire conversation
words judge trial his lawyer.
Blackmon there must on the record that
even noted part that reliance on Blackmon’s
have been speak he could was such that situation “otherwise he lawyer, his since
freely to he said.” have said what
wouldn’t therefore, conclude,
We must and Canar- between Blackmon
conversation purposes a confidential one
sky privilege. lawyer-client
applying al- have been Lowden should not
Trooper he what had to disclose
lowed
heard; regard consti- testimony in this The conclusion that prejudicial error.
tuted believe, necessary to assure is, we
we reach to effective right constitutional impinged.4 counsel
assistance and the case is VACATED
The conviction for a trial.
REMANDED new MARRONE, Appellant,
Frank Alaska, Appellee.
STATE
No. 5368. Appeals of Alaska.
Court of
Nov.
1982.
cert,
quoting
(D.C.Cir.1951),
Fajeriak
See
4.
Copion
F.2d
Michael J. Asst. chorage, Hickey, Daniel W. Chief Prosecu- tor, Condon, Gen., Atty. Wilson L. Ju- neau, for appellee.
OPINION BRYNER, C.J., Before and COATS SINGLETON, JJ.
SINGLETON, Judge. Frank Marrone was convicted degree second murder. His conviction was affirmed on appeal. Marrone (Alaska 1961) P.2d 969 (Marrone I). There after, Marrone filed applications two post-conviction relief. Judgments denying relief were affirmed respectively in Mar rone v. (Alaska) (Mar P.2d 736 cert, II), rone 1005, 25 (1969), and Marrone v. 1978) (Marrone III). brought Marrone this third applica tion for relief arguing: (1) that the trial improperly instructed the jury, that the trial court erred failing to record and transcribe the reading in structions, 753(b) (1976), U.S.C. § (3) that is currently treated as within state parole jurisdiction when he be subject parole should supervi federal sion. The trial court denied relief and Mar appeals. rone find no error and affirm. JURY INSTRUCTION length are set out at some The facts charged was Briefly, Marrone in- following Marrone I. argues Iannet- objection of Don Iannetti. with the murder without struction which Iannetti rights: in a bar which body ti’s was found violated his constitutional eyewitnesses found no owned. The state crime, charged in this every such evidence shooting. Circumstantial case, joint union or must exist a there *3 show that tended to by troduced the state and intent. The burden operation of act opportunity and an Marrone had a motive prove to upon prosecution always testify. kill Iannetti. Marrone did to beyond intent a reasonable both act and an alibi. to establish His evidence tended doubt. frequent- that Iannetti There was evidence person intends presumes The that a law he weapon, which used the murder ly probable natural and conse- ordinary, owned, at the bar. target practice acts. This is a voluntary of his quences addition, evidence Marrone offered be over- may disputable time of his intoxicated at the Iannetti was you If contrary. evidence to the by come when became violent habitually death and killed Don should find that the defendant justified this he was intoxicated. Marrone Iannetti, determining ques- then in that while his by arguing of evidence offer important you it tion of intent alibi, reject this jury might defense was killing which the by consider the means that Marrone was defense and conclude If should find accomplished. you so, might if when Iannetti died weapon without deadly that he used a during off a gun conclude that went a man- provocation or such excuse impulse. or was fired on sudden struggle life, such facts would imperil ner as to this evidence on rejected
The trial court
intent,
an inference of felonious
support
ruling was
relevancy
and the
grounds
which, however, must be
an inference
supreme
The
appeal.
affirmed on
against any contradictory evi-
weighed
only
held that alibi was the
specifically
the evidence shows
dence.
If and when
support
with
in the evidence and
defense
person
violently
assailed another
one
on self-defense or
rely
that Marrone did not
dangerous weapon
with a
in a manner
trial, i.e.,
justification
presented
had not
person
cause the death of the
likely to
put
sufficient evidence to entitle him to
assailed and which in fact did kill the
in issue.
attacked,
Iannetti’s character
for violence
person
gives
thus
such evidence
I,
intended death or other harm. in the federal Marrone’s case was tried however, presumption, by which had been established district court evidence; by contrary overcome arising while Congress try criminal cases such evidence is sufficient to overcome territory
Alaska made the transition from jurors in the minds of the a which creates its own courts. state and established that the reasonable doubt defendant’s the Ninth initially appealed Cir- presumed. tent was as so the absence time the Appeals cuit but Court contrary, presump- evidence to been established so supreme state court had prevail. [Emphasis tion must added.] ap- Marrone’s the Ninth Circuit dismissed upon Marrone relies v. Mon- He refiled in peal jurisdiction. for lack of tana, U.S. 99 S.Ct. 61 L.Ed.2d appellate appeal the state court where his 39 (1979) and Menard v. was heard. 968-69 (Alaska 1978).
Having reviewed the record and the briefs, contentions we have We will deal with Marrone’s concluded Marrone’s object during failure to to this instruction order. right challenge Frady,-U.S. -, his trial forfeits his it in United States v. (1982); post-conviction proceeding. Engle - Isaac, -, We view this result consistent with Alaska Rule of Criminal Procedure When Marrone was tried 1959 the Fed- 35(j). do an appellant not believe that eral Rules of governed Criminal Procedure should be able to raise issues an appeal his trial. Marrone v.
from denial his application post- (Alaska 1961). 979 n. 10 At that time Fed- conviction relief that he would have been eral Rule of provided Criminal Procedure 30 raising appeal barred from on a direct from part: his original conviction. Cf. Hensel v. assign No party may as error any portion (Alaska 1979) (illogi 55n. of the or charge omission therefrom un- cal require greater state bear a burden objects less he thereto before the resisting for new trial in motion collat verdict, retires to consider its stating dis- *4 proceedings eral 35 under Rule than tinctly the to objects matter which he and proceedings in would bear direct under Rule grounds his objection. the of 33).1 We base our conclusion Marrone mentioned, previously As did Marrone not justified has not relief from forfeiture object challenged the instruction at trial. First, following the grounds: the chal Nevertheless, of Federal Rule Criminal Pro- (the lenged instruction Marrone instruc 52(b) provided cedure in 1959 that: tion), distinguishable is from the instruction Plain error or Menard, affecting defects substan- given (the instruction), in Menard rights tial be noticed Sandstrom, although they and the instruction in brought not were to the attention of (the the instruction). Therefore, Sandstrom court. use of the in Marrone instruction 1959 was plain Second, not error. and Supreme Court, The United States were sufficiently Menard foreshadowed v. Frady, -U.S. -, United States States, 246, Morrissette v. United 342 U.S. 1584, (1982), 102 71 S.Ct. held 274-76, 240, 255-56, 288, 72 96 S.Ct. L.Ed. the provision 52 permitting Rule (1952) States, and Bloch v. United appellate plain courts to notice error does (9th Cir.1955). 221 786 Therefore, F.2d the apply not to post-conviction relief. We find holdings Sandstrom and be Menard cannot plain that Marrone has not shown error as law, significant change termed a in the phrase is understood in current Alaska Alaska 35(c)(7), Rule Criminal Procedure law. it is necessary Therefore not for us to excusing object. timely failure to Cf. requir determine whether the federal rule State, Thompson 651, 655-56 ing applies more than error in Alaska (Alaska 1972) (recent case articulating prin in interpreting the Federal Rules Crimi ciple favorable to ex defendant does not Procedure, nal which applicable were
cuse prior failure raise in post-con issue statehood, prior Alaska or in interpreting proceedings viction where the principle is pat current Criminal Rule which is found prior in cases decided post- earlier terned on the federal rules. Plain error has proceedings). Finally, conviction components. two The first describes the has not shown good failing either cause for second, nature of error and to object or prejudice. substantial He quantum of resulting prejudice. Marrone therefore has no claim under federal law. (1) must therefore show: that giving the Consequently, 1. applying We note that Alaska Rule of Criminal Proce- forfeiture standards 35(j) upon dure is based 8 of the § Uniform based on Rule of Federal Criminal Procedure 30 (1966). Post-Conviction Procedure Act not is inconsistent with Alaska Rule of Crimi- provision interpret- 35(j). in the uniform act been has nal Procedure The distinction between ed to limit the “waiver” standard to those waiver and forfeiture is discussed in Lemon v. rights require “intelligent which an State, (Alaska App., and know- 277 October ing” they 1982). waiver before can be lost. Curtis v. (Md.1978). 284 Md. 395 464 A.2d 676 be as to presumed may so insubstantial constituted an obvi-
questioned instruction Tot v. United process. due See proceedings or defect in the violate ous error 87 L.Ed. substantially error affected his (2)that (1943) (must be a rational connection trial, i.e., obviously prej- fair right to a process a due two to withstand between the udicial. See Crutchfield (2) presumption may (Alaska 1980) (footnotes challenge), cita- prove omitted; government’s duty to supplied) undermine emphasis tions where a reasonable doubt. See Sand guilt beyond said: the court Montana, strom v. is well settled that Alaska Criminal has 47(b) allows this court ‘consider Rule not issue on challenged ap- the first time on (cid:127)questions raised for do and we therefore ground the first jus- if effect substantial peal solely His on the challenge reach it here. prevent tice or the denial fundamental in the ground that the instruc But, alleged an error reviewa- rights.’ the state’s questioned tion undermined bur as, if it raises a sub- only ble den proof. question and is important stantial Furthermore, prejudicial. obviously appear in criminal Presumptions, P.2d Gilbert instructions, may divided into four 1979), emphasized require- we types: i.e., prejudice, ment of obvious presumptions re- Conclusive apparent, ap- alleged readily defect be quire presumed to find a fact just to non-constitutional issues
plies
facts;
from the basic
*5
to those of constitutional dimension
but
to the
(2) Presumptions that shift
de-
as well.
persuading
the
the
fendant
burden of
by preponderance
a
of the evidence
jury,
Thus, we conclude that
if reasonable
(or
standard),
presumed
the
higher
that
of
judges,
applicable
aware
constitutional
exist;
fact does not
statutes,
rules,
provisions,
binding
and
(3) Presumptions
shift to the de-
that
appellate authority,
regarding
would differ
producing
the burden of
some
fendant
propriety
giving
particular
the
of
instruc-
tending to
the pre-
evidence
contradict
jury
given,
tion to the
at the time
its use is
fact; and
sumed
Conversely,
error.
if the law is
plain
not
i.e.,
favor,
existing
(4)
settled
defendant’s
that merely
Permissive inferences
precludes
giv-
the
authority unequivocally
jury
presumed
to
the
fact
allow the
find
ing of an instruction and the defendant
of
fact.
from evidence
the basic
result,
as a
prejudice
suffers substantial
it
assumption that
proceeds
on the
to
plain
give
is
error
it. With this test
the
instructions condemned
arguments.
evaluate
mind we
Marrone’s
instruction,
(the
and
Mann
Mann v.
Menard
States,
(5th Cir.1963))
argues
the Marrone instruc United
279-80
was
prove
the defendant
that he
did
ing
the
at the time
before
Ninth Circuit
the
consequences
intend
natural
of his
case
Marrone’s
was tried.
acts,
thereby
shifting
unconstitutionally
the burden of
The
proof.
court in Muller
The
by
Mann instruction
drafted
Supreme
Wisconsin
Court
dis-
Mathes,
[a
decision]
Honorable William C.
a United
by
counted this
possibility
focusing
Judge
States District Court
for the south-
phrase ‘no
According
circumstances.’
California,
ern
cope
district
with
court,
phrase
the Muller
have
should
problems noted in
Bloch
Morrissette.
it
made
clear to the
that the defend-
sug-
It first
with
appeared
print
Mathes’
only required
ant was
‘some’
submit
cases,
gested
forms
use in criminal
evidence to
avoid
reprinted
F.R.D.
264-65
and was
the burden
at all
proof
remained
Mathes,
Jury Instructions and Forms for
prosecution.
times with the
Cases,
Federal
27 F.R.D.
Criminal
(1961). Its later
is detailed in
history
Unit-
This is indeed a subtle notion. While
(5th
Chiantese,
ed
F.2d 1244
States
one schooled in the fine
distinctions
Cir.1977),
cert
law
appreciate the
pre-
idea of a
The duction of Mann instruction differs from the evidence that per- does not suade one to clearly telling contrary, Sandstrom instruction in the idea is (“so foreign it is to the layman. rebuttable unless the usual customary contrary appears evidence”) meaning from the but term ‘rebut’ is ‘to does contradict quantum not indicate the of evidence ... countervailing proof.’ rebut. thus Webster’s New open Collegiate Dic- *6 tionary (1970). at 714 interpretation that the of A proposition it shifts burden is i.e., generally not persuasion, proof preponderance thought of to have by a been rebut- evidence, it the ted until has the defendant on a neces- been shown that it is more likely than sary (intent). element of the offense This not that the contrary is true. Thus, is there is especially charged possibility so where the crime at least the requires the specific shifting interpreted intent. Such a of the instruction at persuasion requiring the of on issue them burden an element of intent find Wilbur, persuaded the unless the Mullaney crime violates v. 421 defendant them to 684, 1881, the contrary. Sandstrom, 95 44 U.S. S.Ct. Under the mere (1975). possibility the that the As court noted in Harris v. could instruction Israel, 568, be so F.Supp. (E.D.Wisc.1981): interpreted enough 515 571 to invalidate the instruction.
The instruction at issue was invalidated because the jury could The Marrone objec- instruction meets this have come to the conclusion that it creat- tion by specifying quantum the of evidence ed either a a conclusive or rebut, i.e., necessary to some evidence. It presumption the shifted burden part: reads proof. The instruction the instant case is identical to the Sandstrom instruction The presumption, however, may be except preceded by it is the phrase evidence; by overcome contrary there are no circumstances to ‘[w]hen such evidence is sufficient to it overcome ’ prevent or rebut the presumption .... which creates in jurors the minds of the a phrase possibility the eliminates [T]his reasonable the doubt that in- defendant’s interpreted the could have the tent was as so presumed. In the absence 678 have almost uni- by our cases examined presump- the contrary, to the of evidence subclass, in into the former formly fit prevail. must
tion
the
removed
ulti-
they
totally
never
based on
to be
appears
instruction
This
a
beyond
reasona-
proof
burden of
mate
See,
v. Cor
e.g., People
cases.
California
prosecution.
from the
ble doubt
647, 649-
744,
nett,
Cal.App.2d
93
im-
the extent
To
substantially identical
(where a
50
produc-
burden of
extremely
an
low
poses
(citing
approved)
was
instruction
‘any’ evi-
satisfied
e.g., being
871,
Besold,
363,
P.
154
97
873
Cal.
People v.
tion —
impact
its
may
be that
well
dence —it
estab
apparently
rule
The
(1908)).
permissive
of a
than that
greater
no
263,
Newcomer, 118 Cal.
People
lished
ference,
analyze
it
proper
appears to
(1897). The instruction
This class of more or less reasonable remained Shifting can into the burden of presumptions prosecution. be subdivided two the parts: presumptions merely persuasion obviously shift the to defendant that the defendant, upon an even strain him production places greater burden of to the longer only present he need some following the satisfaction of which the since no issue; fact at respect burden returns to evidence with to the persuasion ultimate affirmatively he must establish fact. prosecution; presumptions and proof Accordingly, to the Due Process Clause de- entirely shift burden of presumptions exacting defendant. The mands more standards before mandatory
679
require
a defendant
to
also
recognize
adoption
State
of Rule 303 in
its
persuasion.
bear this ultimate burden of
form reflects
assump-
certain
tions about constitutional
law
to
relevant
31,
31,
at 702
95
421
n.
S.Ct. at 1891 n.
U.S.
an evaluation of the Marrone instruction.
(citations omitted).
and state constitutional
255-56,
274-76,
681 State, rule which we find to Thomas v. plus prejudice (Alaska cause 531 1974) (failure be, part, properly least similar in effect to- instruct on essen- tial element of the 35(c)(7), proce- Rule which excuses offense is error but will Criminal intervening only require prejudice is an reversal where dural defaults where there is shown). law, complementary. in the as To- change
gether,
protect litigants seeking post-
OTHER ISSUES
against miscarriages
conviction relief
justice
incompetent
and
counsel. Where
argues
trial court
favor,
but
committed reversible
failing
the law is settled
defendant’s
error in
to re
object
his counsel fails to
and he suffers
cord and transcribe the
reading
jury
trial,
prejudice,
substantial
we will find
er-
instructions at his
thereby violating 28
753(b) (1976).
questions
is settled
The state
ror and reverse. Where the law
U.S.C. §
the applicability
defendant
state and
of this statute to a
against the
under both
federal
sitting
territorial court
as an
law,
changed
is
interim state
federal
but
thereafter
pursuant
to the Alaska
defendant’s favor under circumstances war-
Statehood Act.
7, 1958,
85-508,
of July
Pub.L.No.
72
we will find
Stat.
ranting
application,
retroactive
amended,
prec.
“a
U.S.C.
object
§
“cause” for the failure to
(1958).
It is not
to decide this
grant
significant change in the law” and
question since,
arguendo
if we assume
relief on that basis if the defendant estab-
the federal statute was applicable to Mar-
Where, how-
prejudice.
lishes substantial
trial,
rone’s
we find that Marrone suffered
ever,
fairly
the issue is
debatable at the
See,
prejudice.
e.g.,
no
United States v.
time
federal
of trial under both state and
Smith,
(5th Cir.1979);
controlling. application viction relief See Ozenna Cir.1966). I believe (9th appeal. to meet on a direct have opinion amply demonstrates majority superior judgment of an unusual present this case does not AFFIRMED. a defendant where set of circumstances contempo a making from might be excused BRYNER, concurring. Judge, Chief Furthermore, ma objection. raneous Judge with Coats agreement I am in demonstrates that jority opinion amply not, the context of this this court should from the to Marrone prejudice possibility case, a number of diffi- consider and decide was mini which he now attacks instruction scope as to the complex cult and issues inescapable conclusion is mal. The under Alaska law post-conviction relief and is plain error Marrone has not shown preserved by when the issue raised was not to relief. not entitled objection at trial. contemporaneous a requires think this case particular, go any I do not further with I see no reason to preju- reject or the “cause adopt us to us. I see the case before analysis decide by the United adopted dice” standard safety valve which plain error rule as do I think we Supreme Court.1 Nor States relief from the exists to allow a defendant what extent determine whether or to need cases objection rule in contemporaneous in Alaska error will be considered plain objec- applying contemporaneous where applications.2 my relief post-conviction Relief injustice. result in tion rule would view, strictly necessary because it is particularly only the rule is allowed from case, their issues in the decide these upon weighing cases based compelling until are resolution must be deferred create try factors. I hesitate to many in future cases. directly presented more when attempts to out we a rule which set under the error rule. give will relief believe, however, opin- I do Singleton purports to by Judge ion written when, decide particularly I am hesitant to Rather, I read the decide these issues. ever, might comply not have to party if Marrone’s claim in the opinion, it considers objection rule to contemporaneous with the analyses and demon- light of alternative purposes appeal or preserve an error not be entitled strates that Marrone would Isaac, Engle v. relief. post-conviction See arguable theory. Based any to relief under 1558, 1572, - U.S. -, -, 102 S.Ct. Judge understanding, join I Sin- on this (1982). For me it is gleton’s opinion. be to conclude that in the case sufficient object required fore us Marrone COATS, concurring. Judge, to the in pertaining error preserve reached in the agree I with the conclusion struction. court did superior that the majority opinion relief to Marrone on not err when it denied applications. post-conviction relief a minimum Mar-
It seems to me that at of show- high
rone must meet the
standard
Sykes,
error
that affect
Wainwright
sues of constitutional
1. See
trial).
truth-finding
function of
See also