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MacDonald v. State2/2/2000
the defense attorney sought permission to elicit testimony concerning the reason why the Parole Board issued a warrant for his arrest. In particular, MacDonald's attorney wanted to show that the arrest warrant was issued because MacDonald failed to return to custody at the expiration of his two-day temporary release. Judge Savell agreed that MacDonald should be able to elicit this testimony. The judge added, however, that if MacDonald chose to present this testimony, the State would then have the right to present testimony concerning the fact that MacDonald was serving a felony sentence at the time of his temporary release. In the face of this ruling, MacDonald chose not to present any evidence on this subject.
Now, on appeal, MacDonald claims that Judge Savell unlawfully "denied" him the opportunity to present evidence concerning "the conduct which led to the issuance of the warrant". This is a mischaracterization of the judge's ruling. Judge Savell did not prevent the defense attorney from presenting the desired testimony. Rather, Judge Savell ruled that the jury should hear the whole story: if MacDonald presented testimony explaining that he was temporarily released from prison and that he failed to return, then the jury should also hear that MacDonald was serving a felony sentence.
After Judge Savell issued this ruling, MacDonald decided not to present his evidence. By making this decision, MacDonald gave up his right to attack Judge Savell's ruling on appeal.
We note, moreover, that MacDonald did in fact elicit the evidence that he now claims he was prevented from presenting. When the defense attorney cross-examined MacDonald's parole officer, the following exchange occurred:
Defense Attorney: o you know whether or not Mr. MacDonald was released from custody on the 7th day of July, 1997? Parole Officer: Yes, he was. Defense Attorney: Was he to return to custody by the 9th day of July, 1997? Parole Officer: Yes, he was. Defense Attorney: And was his failure to return to custody on the 9th day of July, 1997, the reason for the issuance ... Prosecutor: Objection, Judge. The Court: "A reason". Defense Attorney: Was it a reason for the issuance of this document that you have before you [i.e., the arrest warrant]? Parole Officer: Yes.
Thus, Judge Savell's ruling did not prejudice MacDonald's defense.
The trial judge's failure to instruct the jury on the lesser offense of fourth-degree escape
MacDonald was charged with second-degree escape under AS 11.56.310(a)(1)(B). At trial, MacDonald suggested that he was guilty only of the lesser offense of unlawful evasion under AS 11.56.340(a) - failing to return to prison when his temporary leave expired. He asked Judge Savell to instruct the jury on this supposed "lesser included" offense, but the judge refused. Judge Savell ruled that, even though MacDonald might have committed unlawful evasion by failing to surrender himself on July 9th at the end of his temporary leave, this was a separate offense from the escape charged in the indictment - an escape that was committed on September 3rd, when the officers laid hands on MacDonald to arrest him, and he broke free and ran away.
When MacDonald filed this appeal, he declared his intention to challenge Judge Savell's ruling and to argue that the jury should have been instructed on the lesser offense of unlawful evasion. But MacDonald now implicitly concedes that Judge Savell's ruling was correct. In his brief, MacDonald states that he no longer wishes to argue that the jury should have been instructed on unlawful evasion. Instead, MacDonald now claims that the jury should have been instructed on another lesser offense, fourth
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