Bolhouse v. State

687 P.2d 1166, 1984 Alas. App. LEXIS 280
CourtCourt of Appeals of Alaska
DecidedSeptember 7, 1984
Docket7665
StatusPublished
Cited by24 cases

This text of 687 P.2d 1166 (Bolhouse v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Alaska primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bolhouse v. State, 687 P.2d 1166, 1984 Alas. App. LEXIS 280 (Ala. Ct. App. 1984).

Opinions

OPINION

SINGLETON, Judge.

After a jury trial, Daniel Bolhouse was convicted of two counts of sexual assault in the second degree, AS 11.41.420, and two counts of attempted sexual assault in the first degree, AS 11.41.410; AS 11.31.100. Bolhouse was sentenced to consecutive terms of nine years with two years suspended on each count of attempted sexual assault in the first degree. No sentences were imposed on the remaining counts.1 Bolhouse appeals his convictions, contending that his counsel was improperly excluded from participation in the voir dire examination of the jury. Bolhouse also appeals his sentence, contending that it is excessive. We affirm the conviction but remand for resentencing.

FACTS

The Assaults

The charges against Bolhouse arose out of two separate incidents that occurred on August 2, 1980, and January 15, 1981, in Fairbanks. He assaulted two University of Alaska coeds, intending to rape them. C.D. testified that Bolhouse followed her along a biketrail into a wooded area where [1168]*1168he knocked her to the ground. As he tried to remove her shorts, another student, Russell Talvi, happened to pass by and Bol-house ran away. Both C.D. and Talvi identified Bolhouse as the assailant.

P.A. testified that on January 15, 1981, Bolhouse followed her along Sheep Creek Road; he chased her when she became frightened and started to run. Bolhouse caught P.A. and threw her to the ground. As P.A. struggled, Bolhouse partially undressed her and sexually molested her. As Bolhouse began to remove his own pants, P.A.’s neighbor drove by and stopped at his mailbox; P.A. yelled for help and Bolhouse ran into the woods. Immediately after the assault, P.A. noted the license number on a vehicle parked nearby which was traced to Bolhouse. P.A. positively identified Bol-house at trial.

Jury Selection

Jury selection began on the morning of November 9,1982. The trial court read the indictment to the panel of thirty prospective jurors and explained that the defendant was presumed innocent until proven guilty beyond a reasonable doubt. Twelve prospective jurors were then called to the jury box and the entire panel was admonished to pay close attention to the questions asked by the court and counsel.

Judge Van Hoomissen introduced the attorneys and the defendant and called attention to a list of witnesses who would likely testify in the case. The witnesses’ names were written out on a blackboard. Judge Van Hoomissen then asked a number of general questions regarding the crime of sexual assault and past contacts with the criminal justice system.2 Both the prosecutor3 and defense counsel4 followed with general questions to the panel as a whole.

Next, individual voir dire of the jurors in the box began. Each juror answered general background questions from a written [1169]*1169list posted in the courtroom.5 Each juror was then questioned in turn by the attorneys about various matters ranging from prior jury service to attitudes about sexual assault. Defense counsel remarked during voir dire that the sole issue in the case would be the identification of the attacker and that the fact that both victims had been sexually assaulted would not be disputed.

Later in the afternoon, after both sides had fully participated in the voir dire of twenty prospective jurors and defense counsel had exercised six peremptory challenges,6 Judge Van Hoomissen indicated that he intended to begin asking all of the questions. The following exchange occurred on the record between the court and defense counsel:

MR. HAGEY: As I understand, you’re not going to allow me to ask any more questions.
THE COURT: That’s right.
MR. HAGEY: Can I submit questions to the court that I’d like prospective jurors to be asked?
THE COURT: No, not at this point. I— you’re — the record was running before.
MR. HAGEY: I have questions I would like to ask.
THE COURT: Well, on your record — for the record, then, at ten minutes to [4 o’clock] I advise you that at ten minutes after, I was going to start asking the questions. If you have any particular questions you want to submit them in writing, go ahead and submit them.
MR. HAGEY: I have questions I want to ask — I have questions I would like to ask the court to ask this prospective juror before exercising my next preempt.
THE COURT: Well, I’m not going to allow you to do it. I’m going allow [the state] to exercise [its next] challenge. There’s going to be no other questions. A lot of the questions that are asked are either repetitious or have absolutely ... nothing to do with whether a juror can be fair.
MR. HAGEY: Your Honor, one of the reasons for asking questions is to make intelligent decisions as to peremptory challenges ....
THE COURT: I understand that.
MR. HAGEY: I think it’s a constitutional right ... to do that, and I’d ask the court permission to either ask the questions or I will submit the questions to the court.
THE COURT: Counsel, I told you we’re going to do this — I’m not asking any more questions or — no more questions are going to be asked through counsel.

Judge Van Hoomissen thereafter conducted voir dire of the nine additional prospective jurors it took to seat a jury.7 During this period, defense counsel exercised Bolhouse’s remaining four peremptory challenges. Two jurors were excused for cause, on the court’s own motion, after indicating that they had reservations about being fair in a sexual assault case.

[1170]*1170After the jury was selected, the following exchange occurred:

MR. HAGEY: Specifically, Your Honor, I believe I had another — renewed inquiry as to whether I’d be allowed to ask questions as to cause or peremptory challenges, and requests for additional peremptory challenges after exhaustion of my other peremptory challenges.
THE COURT: The record ... does not reflect, and it should reflect that you’ve made numerous requests for the opportunity to inquire of the jurors, or to have the court accept written questions of the jurors and — prepared by yourself. And the record should reflect that I denied those requests. The record should also reflect, if it does not, that in several — at least two bench conferences here at the bench in open court, you’ve required— you’ve asked those same questions ...

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Bolhouse v. State
687 P.2d 1166 (Court of Appeals of Alaska, 1984)

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Bluebook (online)
687 P.2d 1166, 1984 Alas. App. LEXIS 280, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bolhouse-v-state-alaskactapp-1984.