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PETERSEN v. STATE12/20/1996
of the fact that Petersen was on probation and that one of the conditions of his probation forbade him from contacting R.H.. The roots of this issue are found in a pre-trial motion that Petersen filed.
Before trial began, Petersen asked the trial judge to preclude the State from making "any mention or reference to" his April 1993 assault conviction (for attempting to ram R.H.'s car). In making this request, Petersen offered to stipulate that he was under a "court order" that prohibited him from approaching R.H.'s house or workplaces. The defense attorney argued that the fact of Petersen's conviction was irrelevant; what mattered (under the first-degree stalking statute) was that Petersen was under a court order not to contact the alleged victim. The prosecutor responded that stipulation to a "court order" was not sufficient: Petersen was charged with first-degree stalking under AS 11.41.260(a)(2), and this statute requires the State to prove that Petersen's conduct violated a specific type of court order — a condition of probation. Petersen's attorney continued to insist on a stipulation to a "court order". The trial judge ruled that the State could not introduce evidence of Petersen's conviction per se, but the judge also ruled that the State was not obligated to accept the proposed stipulation. See State v. McLaughlin, 860 P.2d 1270 (Alaska App. 1993).
Later, during the presentation of the State's case, the prosecutor asked the judge for permission to introduce evidence of Petersen's assault conviction and his conditions of probation. The defense attorney objected. He noted that the judge had already ruled that the State could not introduce evidence of Petersen's conviction — although he conceded that there was a certain inconsistency in saying that the State could not introduce evidence of Petersen's conviction but that the State was still entitled to introduce evidence that Petersen was on probation. The judge replied, "I think you're right. . . . And therefore, both the conviction and the probation condition come in."
Upon hearing this, Petersen's attorney renewed his argument that the jury should be told only that "the district court said he couldn't have contact [with R.H.], not that he was on probation". The judge replied that the statute required proof that Petersen had violated a condition of probation. She asked the defense attorney if he had any objection to the following statement:
On April 7, 1993, the district court placed Gary Petersen on probation for five years and ordered him to have no contact with [R.H.], including not being within one block of her places of employment or her residence.
Petersen's attorney responded, "None" — that is, he said that he had no objection to the statement. The judge then declared that she would read this statement to the jury at the close of the current witness's testimony. The defense attorney made no immediate comment. However, a few minutes later he told the judge that, when he said "none", he meant only that he had no objection to the court's proposed statement, given the court's earlier ruling that the State was entitled to prove that Petersen had violated a condition of probation (not just a "court order"). The defense attorney stated that he was not "waiving anything". The judge replied that she was entitled to take judicial notice of Petersen's conditions of probation because they were established beyond reasonable dispute by documents in Petersen's district court file. The defense attorney did not respond to the judge's statement that she was going to take judicial notice of Petersen's conditions of probation.
Later in the trial, the prosecutor asked the judge to read the above-quote
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Alaska DUI Attorneys
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