Faizon Kentrell Murray v State of Alaska

In the Court of Appeals of the State of Alaska
Faizon Kentrell Murray, )
) Court of Appeals No. A-13247
Appellant, )
v. ) Order
)
State of Alaska, )
)
Appellee. ) Date of Order: October 10, 2018
)
Trial Court Case # 3AN-17-09063CR
Before: Chief Judge Mannheimer, Judge Allard, and Judge Wollenberg.
Faizon Murray appeals the superior court’s decision to reject his proposed third-
party custodian on the ground that the proposed custodian could potentially be called as
a witness at his trial. See AS 12.30.021(c)(5), which states that a court shall not appoint
a person to be a third-party custodian if “the proposed custodian may be called as a
witness in the prosecution of the [defendant]”.
(We note that AS 12.30.021(c)(5) has since been amended. The statute now
declares that a potential third-party custodian is disqualified if “there is a reasonable
probability that the state will call the proposed custodian as a witness in the prosecution
of the person”.)
Murray argues that, to the extent his proposed custodian has knowledge of
Murray’s case, the custodian’s knowledge pertains only to events or circumstances that
will not be contested.

Murray v. State, No. A-13247
October 10, 2018 — p. 2
Compare Alaska Professional Conduct Rule 3.7 (“Lawyer as Witness”), which
states that “a lawyer shall not act as advocate at a trial in which the lawyer is likely to be
a necessary witness unless ... the [lawyer’s] testimony relates to an uncontested issue”.
We agree with Murray that AS 12.30.021(c)(5) should not be construed so broadly
that it applies to any and all persons who might conceivably be called as a witness on any
matter, even if the matter is uncontested.
For this reason, we direct the superior court to reconsider its decision —
specifically, to assess whether there is a significant possibility that Murray’s proposed
custodian will be called as a witness at his trial on contested issues.
Entered at the direction of the Court.
Clerk of the Appellate Courts
/s/ M. Johnson
M. Johnson, Deputy Clerk
cc: Court of Appeals Judges
Judge Wolverton
Central Staff
Trial Court Clerk - Anchorage
Distribution:
Bradly Carlson
C/o Public Defender Agency
900 W. 5th Avenue Ste 200
Anchorage AK 99501
Jason Gist
District Attorney’s Office
310 K St Ste 520
Anchorage AK 99501