Kanulie v. State

796 P.2d 844, 1990 Alas. App. LEXIS 72, 1990 WL 123129
CourtCourt of Appeals of Alaska
DecidedAugust 24, 1990
DocketNo. A-2873
StatusPublished
Cited by3 cases

This text of 796 P.2d 844 (Kanulie 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
Kanulie v. State, 796 P.2d 844, 1990 Alas. App. LEXIS 72, 1990 WL 123129 (Ala. Ct. App. 1990).

Opinion

OPINION

COATS, Judge.

William B. Kanulie was convicted, following a jury trial, of three counts of murder in the first degree and one count of attempted murder in the first degree. AS 11.41.100(a)(1); AS 11.41.100(a)(1) and AS 11.31.100(a). Superior Court Judge Roy H. Madsen sentenced Kanulie to three consecutive ninety-nine year terms for the murder convictions and to another consecutive seven-year term for the attempted murder conviction for a total sentence of 304 years. Kanulie appeals his conviction and sentence. We affirm.

In the afternoon of May 2, 1987, a number of commercial fishermen set up camp on a beach in the Togiak area waiting for the opening of “kelping” which was to begin later that evening. Among the fishermen were Sally Andrew, her brothers Ray and Roy Andrew, Scoli Togiak, Jerry Active, Louis Dyasuk, Chip Martin, and the appellant, William B. Kanulie. The group drank beer and whiskey and smoked mari[846]*846juana while they waited for the “kelping” to begin.

Active left the group and went to his tent to sleep. Meanwhile, Dyasuk got into an argument with some men in a boat who threw him into the water. Fearing that Dyasuk might become hypothermic, Ray and Sally Andrew took him into Active’s tent to take his wet clothes off. Kanulie and Togiak came by the tent and began fighting. When Kanulie saw people inside of the tent, he apparently became enraged because he thought Dyasuk was preparing to sexually assault Active who was still asleep. Ray and Sally Andrew eventually got Dyasuk’s wet clothes off and put him into a sleeping bag.

A few minutes later, Kanulie left Active’s tent with the .22 caliber semi-automatic rifle which Active kept inside his tent. Sally Andrew approached Kanulie and apparently tried to wrestle the rifle away from him. When she tried to get away from Kanulie, he shot her in the back. After she fell, he shot her again several times. Scoli Togiak tried to hide but Kanulie found him and shot him too. Kanulie returned to the tent and fired on Active and Dyasuk. Sally Andrew, Scoli Togiak, and Jerry Active died from the bullet wounds, but Dyasuk survived. The troopers were summoned and Kanulie was arrested.

Following his arrest, Kanulie was interrogated several times. First, Trooper Joseph Campbell questioned him at the scene on the day of the murders. Later that evening, Campbell and other officers questioned him at Summit Island Fish and Game Camp. At approximately 11:00 p.m. that evening, Campbell questioned him at the Dillingham police station.

Around 4:00 a.m. the next day, Kanulie was interviewed by Campbell again, but this time Charles Merriner, the Dillingham District Attorney, also participated. At 1:32 p.m., Kanulie was interviewed for the last time again by Trooper Campbell and Merriner. The police videotaped these two statements.

Kanulie first contends that Judge Mad-sen erred in allowing the prosecution to introduce the videotape of the interview in which prosecutor Merriner questioned Ka-nulie. Kanulie argues that the introduction of this tape created two problems. First, Merriner was a witness to the events pictured on the tape. Kanulie represented that he would have wanted to call Merriner as a witness to testify on Kanulie’s demeanor at the time that the tape was taken and to help clarify portions of the videotape which were inaudible. Second, Kanulie argued that he was prejudiced because Merri-ner appeared both on the videotape and as an advocate in the trial. Kanulie argued that Merriner, as advocate, was placed in a position of being able to argue his own credibility as a witness to events which were part of the evidence at trial.

Judge Madsen denied Kanulie’s motion and ruled that the tape was admissible. He noted that Kanulie brought a pretrial suppression motion, attempting to suppress Kanulie’s statements. In making this motion, Kanulie never raised any issue concerning Merriner’s participation in taking two of the statements. Judge Madsen indicated that the defense knew or should have known about Merriner’s participation and should have raised the issue before trial. He also concluded that the defense had not shown that Merriner was a critical witness to the statements. He pointed out that Trooper Campbell had been present when Kanulie made his statements and was available to testify. He concluded that Kanulie would not be unduly prejudiced by the fact that Merriner, the prosecutor at trial, had participated in the videotaped interrogation and ordered Merriner to not refer to his participation in taking Kanulie’s statements.

In People v. Paperno, 54 N.Y.2d 294, 445 N.Y.S.2d 119, 120, 429 N.E.2d 797, 798 (1981), the court summarized its holding in a case raising similar issues as follows:

We hold today that where the defendant, prior to trial, makes a significant showing that the prosecutor’s prior investigative or prosecutorial conduct will be a material issue at the trial, the prosecutor should be recused. Where no such [847]*847showing is made, however, a conviction will be reversed only when the defendant demonstrates a substantial likelihood that prejudice resulted from the prosecutor’s participation in the trial.

We believe that the analysis in Paperno sets forth a sensible and workable rule. When we apply that rule to this case, we conclude that we must affirm Judge Mad-sen’s ruling.

By raising the issue of Merriner’s role as an investigator in the middle of trial, Kanulie. placed the court in a position of having to order the state to change prosecutors in midtrial, to grant a mistrial, or to exclude relevant evidence. The Pa-pemo rule requires motions of this sort to be made at the pretrial stage. The record supports the trial court’s conclusion that defense counsel was aware that Merriner had participated in taking Kanulie’s statement. Defense counsel was also aware that Merriner would prosecute the case. By raising the issues concerning Merriner’s participation in questioning Kanulie in mid-trial, Kanulie greatly limited the court’s options. Had he raised the issue before trial, the court would have had the option of ordering the state to have another attorney prosecute the case. The substitute attorney could have had adequate time to prepare for trial. Alaska Criminal Rule 16(f)(3) requires pretrial motions to be made at the omnibus hearing. Where the defendant does not file a motion before trial, his opportunity to raise the motion is normally forfeited. We conclude therefore that Kanulie forfeited his argument by failing to make the appropriate motion at the omnibus hearing.

The next part of Judge Madsen’s ruling concerns the fact that District Attorney Merriner was a potential witness. Where an attorney is a potential witness in a case, Disciplinary Rules 5-101(B) and 5-102 of the Code of Professional Responsibility generally require the lawyer to withdraw from a case where it appears that he or a member of his firm will be called to x testify regarding a disputed issue of fact. The court in Paperno referred to this as the “advocate-witness rule.” 445 N.Y.S.2d at 122, 429 N.E.2d at 800. In applying the advocate-witness rule, the Paperno court required defense counsel to establish, in a pretrial motion, either that the prosecutor would be a witness for the state or that the prosecutor could provide testimony which was favorable to the defendant. Id.

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Cite This Page — Counsel Stack

Bluebook (online)
796 P.2d 844, 1990 Alas. App. LEXIS 72, 1990 WL 123129, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kanulie-v-state-alaskactapp-1990.