Court of Appeals of Alaska (2022)
In Lee v. State, 507 P.3d 483 (Alaska Ct. App. 2022), as revised on reh’g (Apr. 25, 2022), the court of appeals held that (1) a witness’s lack of memory does not make him unavailable for purposes of the Confrontation Clause, and (2) voluntary felony guilty pleas made in military courts, regardless of whether those courts would have afforded a unanimous jury verdict, may be used as prior felony convictions for enhancing sentences under Alaska law. (Id. at 495, 499). Lee was a criminal defendant convicted of sexual abuse of a minor, assault, and possession of child pornography. (Id. at 486). At trial, the State introduced recorded interviews of the minor victims taken soon after the abuse. (Id. at 487). During cross examination, one victim testified that she no longer remembered the incidents with Lee or her interview with the police, which had occurred five years earlier. (Id. at 493–94). At sentencing, the trial court relied on a prior military adjudication to sentence Lee as a second felony offender. (Id. at 495). Lee raised multiple theories on appeal, including an argument that the video interview and subsequent cross examination of the victim violated his constitutional right to confrontation based on the witness’s lack of memory of the events in question. (Id. at 494). Lee also argued that the trial court erred in considering his prior military adjudication in sentencing, because the court-martial system did not protect his fundamental right to a unanimous jury verdict and therefore his felony guilty plea in a military court should not be considered a prior felony under Alaska law. (Id. at 495). First, the court reasoned that since the victim was available in the courtroom for cross examination, her lack of memory did not make her unavailable for purposes of the Confrontation Clause. (Id.). Second, the court reasoned that Lee’s guilty plea in military court had been made voluntarily and with advice from counsel. (Id. at 498). The court ruled that because the military conviction was not tainted by a non-unanimous jury verdict, it did not violate Lee’s fundamental right to a unanimous jury verdict under Alaska law. (Id. at 498–99). Affirming the lower court’s decision, the court of appeals held that (1) availability under the Confrontation Clause does not require that a witness remember the events in question, and (2) voluntary felony guilty pleas in military courts may be used as prior felonies to enhance criminal sentences. (Id. at 495, 499).