Paukan v. State

536 P.3d 1216

Zachariah M. PAUKAN, Appellant,

v.STATE of Alaska, Appellee.

Court of Appeals No. A-13680

Court of Appeals of Alaska.

September 22, 2023

Jane B. Martinez, Law Office of Jane B. Martinez, LLC, Anchorage, under contract with the Office of Public Advocacy, for the Appellant.

Michal Stryszak, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.

Before: Allard, Chief Judge, and Wollenberg and Terrell, Judges.

OPINION

Judge WOLLENBERG.

Zachariah M. Paukan was arrested and charged in connection with an incident involving his partner, Beautrice Heckman, and Heckman's friend, Eileen Tyson. While in custody, Paukan placed a phone call to Heckman, during which he told her: "I'm going to go to trial. Tell Eileen [Tyson] not to testify. And you won't either." Based on this conduct, Paukan was indicted on two counts of first-degree witness tampering under AS 11.56.540 — one count under subsection (a)(1) and one count under subsection (a)(2).¹ Neither count specified the identity of the witness with whom Paukan allegedly tampered.

As trial began, it became clear that the parties had different understandings of what crimes had been charged in the indictment. The prosecutor (who was not the same prosecutor who conducted the grand jury proceedings) believed that Paukan had been indicted for tampering with two distinct witnesses — Heckman and Tyson. Paukan's attorney contended that Paukan had been charged with a single act of witness tampering relating to his attempt to influence Heckman, and that the two separate counts reflected two different legal theories of guilt. Paukan's attorney argued that allowing the State to proceed on a count relating to Tyson would amount to a fatal variance from the indictment. The superior court rejected this argument. Following a jury trial, Paukan was convicted of both counts.

On appeal, Paukan renews his argument that allowing the State to proceed on a witness tampering count related to Tyson amounted to a fatal variance. We have reviewed the indictment and the grand jury proceedings, and for the reasons explained in this decision, we agree with Paukan that there was a fatal variance. We therefore reverse Paukan's conviction for witness tampering relating to Tyson.

Facts and proceedings

In 2018, Zachariah Paukan and Beautrice Heckman were living together with their two children. On the morning of March 1, Paukan and Heckman began arguing. They had been up late at night drinking wine with their friend, Eileen Tyson. At some point, during the argument, Paukan allegedly hit Heckman, threatened to burn the house down, and started pouring gasoline around the house. In response, Tyson took the two children to another home. Paukan was arrested shortly thereafter and prosecuted in a separate case for third-degree assault.

Later that same day, two troopers interviewed Tyson. Tyson told the troopers that Paukan had hit Heckman and threatened to burn down the house. Another trooper, Alaska State Trooper Robert Casey, subsequently issued subpoenas to both Heckman and Tyson for them to testify at the upcoming grand jury proceeding in the assault case.

While in custody, Paukan called Heckman from the jail several times, despite being ordered by the court not to do so. During one of those calls, made on March 2 — the day after the incident — Paukan told Heckman, "I'm going to go to trial. Tell Eileen [Tyson] not to testify. And you won't either." Trooper Casey obtained and listened to Paukan's jail phone calls a few days later.

On March 7, Trooper Casey filed a complaint alleging that Paukan had committed three additional crimes: unlawful contact (for contacting Heckman); violating conditions of release (again, for contacting Heckman); and first-degree witness tampering. The complaint did not specify the subject of the witness tampering charge — although the trial prosecutor later clarified that he understood this initial charge to refer to Heckman.

Alaska's first-degree witness tampering statute, AS 11.56.540, sets out two separate theories of guilt. Subsection (a)(1) makes it a crime to knowingly induce or attempt to induce a witness to "testify falsely, offer misleading testimony, or unlawfully withhold testimony in an official proceeding." Subsection (a)(2) makes it a crime to knowingly induce or attempt to induce a witness to "be absent from a judicial proceeding to which the witness has been summoned." The March 7th complaint alleged that Paukan was guilty under subsection (a)(2).

The grand jury proceeding in the underlying case — i.e. , the case in which Paukan was charged with third-degree assault — took place on March 8. Heckman did not appear in front of the grand jury. Tyson appeared telephonically and testified about the events of March 1, but the testimony she provided was inconsistent with her original statements to the troopers. She downplayed Paukan's behavior and stated that she did not remember much of what happened.

A second grand jury proceeding was held on March 15 seeking to indict Paukan for the additional charge of witness tampering.² As we noted above, the initial complaint alleged a single count of witness tampering under subsection (a)(2) of Alaska's first-degree witness tampering statute. But the indictment presented to the March 15th grand jury alleged two counts of first-degree witness tampering — the first under subsection (a)(1) (Count I) and the second under subsection (a)(2) (Count II). The counts did not identify the witness (Heckman or Tyson) with whom Paukan allegedly tampered.

Here are the counts, as they were read to the grand jury by the prosecutor:

Count I — that in the Fourth Judicial District, State of Alaska, on or about March 2, 2018, at or near St. Mary's, Zachariah Paukan knowingly induced or attempted to induce a witness to testify falsely, offer misleading testimony, or unlawfully withhold testimony in an official proceeding, all of which is a Class C felony offense, being contrary to and in violation of 11.56.540(a)(1), and against the peace and dignity of the State of Alaska.

Count II — that in the Fourth Judicial District, State of Alaska, on or about March 2, 2018, at or near St. Mary's, Zachariah Paukan knowingly induced or attempted to induce a witness to be absent from a judicial proceeding to which the witness had been summoned, all of which is a Class C felony offense, being contrary to and in violation of 11.56.540(a)(2), and against the peace and dignity of the State of Alaska.

The grand jury proceeding was short (approximately twenty minutes), and Trooper Casey was the only witness. Casey testified that on March 1, he investigated an alleged assault involving Paukan, Heckman, and Tyson.

As the prosecutor questioned Casey about the March 1 incident, the only witness to the alleged assault about whom the prosecutor inquired was Heckman (not Tyson). The prosecutor confirmed with Casey that Heckman was "a witness and possibly a victim" in the March 1st case. The prosecutor then asked Casey whether he had issued a subpoena for Heckman to appear at the first grand jury; in response, Casey testified that he had issued subpoenas to both Heckman and Tyson. The prosecutor also asked Casey whether there was a jail phone call in which Paukan asked Heckman not to testify; in response, Casey testified that there was a phone call in which Paukan told Heckman not to testify and told Heckman to tell Tyson not to testify.

These two instances are the only times Tyson was referenced in connection with the witness tampering charges, and both references were made by Casey without prompting from the prosecutor. In fact, the prosecutor himself only mentioned Tyson twice during the entire proceeding: first, at the beginning of the proceeding, when the prosecutor told the grand jury that it might "hear from or about" Tyson, Heckman, and Casey; and second, near the beginning of Casey's testimony, when the prosecutor asked Casey if he had investigated a case involving Paukan, Heckman, and Tyson.

At the end of the proceeding, the prosecutor noted that it was possible that some of the grand jurors had also been present at the March 8th grand jury proceeding (i.e. , the grand jury proceeding stemming from the underlying incident), and the prosecutor instructed the grand jurors that they should not consider that proceeding "other than for the purpose of determining whether Ms. Heckman was subpoenaed to testify before the grand jury." Again, the prosecutor did not mention Tyson. We note that because Tyson did testify at the March 8th grand jury proceeding, the prosecutor's instruction necessarily implied that the March 15th grand jury was not supposed to consider Tyson's March 8th grand jury testimony in its deliberations.

Given these facts, there was strong reason to believe that the indictment reflected a single act of witness tampering with Heckman under two separate theories — one theory under AS 11.56.540(a)(1) and the other under AS 11.56.540(a)(2). Indeed, Paukan's conduct with respect to Heckman could have arguably fallen under either theory — i.e. , that he induced or attempted to induce Heckman to either unlawfully withhold testimony or be absent from the March 8th grand jury proceeding.

By the time this case came to trial, however, a new prosecutor had been assigned to the case, and he sought to present proof that Paukan had committed two separate acts of witness tampering: one for tampering with Heckman and one for tampering with Tyson. The prosecutor's theory with respect to Count II (charging a violation of AS 11.56.540(a)(2) ) was generally consistent with the indictment: that Paukan had induced Heckman to be absent from the March 8th grand jury proceeding.

But the trial prosecutor's theory of guilt with respect to Count I (charging a violation of AS 11.56.540(a)(1) ) bore little resemblance to what was presented to the grand jury. The prosecutor explained that the State's theory of guilt as to...