Opinion
Court of Appeals No. A-10147.
July 21, 2010.
Appeal from the Superior Court, Third Judicial District, Dillingham, Fred Torrisi, Judge, Trial Court No. 3DI-07-323 CR.
Constantine Q. Akelkok, pro se, Palmer, and Paul Malin, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Constantine Q. Akelkok appeals his conviction for tampering with physical evidence. Akelkok contends that one of the trial jurors was biased against him because the juror knew a State's witness. We conclude that Superior Court Judge Fred Torrisi acted within his discretion when he denied Akelkok's challenge for cause based on the juror's testimony that he could decide the case objectively. Akelkok also complains that the judge admitted photographic evidence without the testimony of the photographer. We conclude that testimony that the photographs were an accurate depiction of the scene provided an adequate foundation for admission of the photos. Additionally, we conclude that there was no plain error when a trooper testified that Akelkok told him that the trooper "needed to talk to [Akelkok's] lawyer."
Background
In July of 2007, a number of cases of Rainier beer were stolen from the Salmon Paradise Lodge, in Ekwok, Alaska. Village Public Safety Officer (VPSO) Daniel Decker investigated the burglary and followed a trail of beer cans from the lodge to the house where Constantine Q. Akelkok lived. VPSO Decker notified the Alaska State Troopers of the burglary and the trail of cans, and on July 8, 2007, Decker and Trooper Jason Fieser went to Akelkok's house. On their way to the house, they encountered Akelkok, who denied any knowledge of the burglary and who insisted that the house actually belonged to his brother Charles.
Decker and Fieser proceeded to the house and knocked on the exterior door. When no one answered the knocks, the men proceeded inside the arctic entry to knock on the interior door. Decker and Fieser saw two kitchen-sized trash bags full of empty Rainier cans sitting on the floor of the arctic entry. The officers exited the arctic entry and asked Peter Walcott Jr. to guard the residence while they obtained a search warrant. While Walcott was guarding the residence, Akelkok went into the arctic entry and removed the trash bags, despite Walcott's objection.
The State charged Akelkok with fourth-degree assault (for threatening Walcott) and tampering with physical evidence (for removing the trash bags). At trial, the State introduced photographs of the trash bags. The photos were taken by Gunda Esletzbicheler, who was affiliated with the lodge and did not act at the request of the police. Akelkok objected to the admission of the photographs, arguing that they should have been suppressed because Esletzbicheler trespassed in order to take the photographs. Judge Torrisi explained that the photographs would be admissible if the State called a witness to testify that the photographs were a fair and accurate representation of how the scene looked at the time.
AS 11.41.230(a)(3).
AS 11.56.610(a)(1).
Later, the State moved to admit the photographs of the trash bags as being representative of what VPSO Decker saw at the scene. Decker testified that the photographs depicted exactly what he had seen, and Judge Torrisi admitted them over Akelkok's objection.
Trooper Fieser testified that when he and VPSO Decker encountered Akelkok on their way his house, Akelkok denied knowing anything about the burglary, and told the trooper that he needed to speak to Akelkok's lawyer. Akelkok also told the officers that the house they were about to visit belonged to Akelkok's brother and that Akelkok was staying at his father's house.
The jury ultimately convicted Akelkok of tampering with physical evidence and he now appeals. Discussion Juror Rick Dallman
Akelkok argues that the trial court erred in denying a challenge for cause of one of the prospective jurors at Akelkok's trial. The potential juror, Rick Dallman, oversaw the Southwest Region School District's maintenance department, and occasionally his work required him to travel to Ekwok. During voir dire, Dallman reported that he knew that one of the State's witnesses, Walcott, worked for the school district as a custodian in Ekwok.
Dallman testified that he did not have much direct contact with Walcott, but he agreed with defense counsel's statement that he would tend to believe Walcott's testimony "more than somebody . . . off the street." Dallman replied, "I would have to say probably yes, because I do know him, and I know his character . . ., [a]nd he's never given me a reason not to believe him." Akelkok then challenged Dallman for cause. The State followed up by asking Dallman, "So you think you can be objective in this trial?" Dallman replied, "Yes." Judge Torrisi then asked, "would you tend to believe [Walcott's] testimony more because you know him . . . ?" And Dallman replied, "No." Judge Torrisi denied Akelkok's challenge for cause, but Akelkok later challenged Dallman in the first round of peremptory challenges.
This court reviews a trial judge's denial of a challenge for cause for an abuse of discretion. The record need not reflect "unequivocal and absolute" impartiality on the part of a juror: "[a]ll that is required of a prospective juror is a good faith statement that he or she will be fair, impartial and follow instructions."
Minch v. State, 934 P.2d 764, 769 (Alaska App. 1997).
Hammock v. State, 52 P.3d 746, 749 (Alaska App. 2002) (quoting Sirotiak v. H.C. Price Co., 758 P.2d 1271, 1277 (Alaska 1988) (brackets added in Hammock)).
In this case, despite some degree of equivocation, Dallman ultimately gave the court his good faith assurance that he could be fair and impartial. Judge Torrisi did not abuse his discretion when he denied Akelkok's challenge for cause.
See Young v. State, 848 P.2d 267, 270 (Alaska App. 1993) (holding trial court did not abuse its discretion by denying challenge for cause based on good faith assurance).
The photographs of the trash bags
Akelkok argues that the photographs of the trash bags in his arctic entry were inadmissible because VPSO Decker did not take the photographs and was not present when they were taken.
As discussed above, Decker testified that he followed a trail of beer cans from the lodge to Akelkok's house, knocked on the door, and proceeded to enter the arctic entry. Decker saw two large, translucent garbage bags filled with empty Rainier beer cans. At trial, Decker identified State's Exhibits 2-4 as photographs given to him by Esletzbicheler, which he had received during the course of his burglary investigation. Decker testified that the photographs depicted the scene in the arctic entry as "exactly what [he] saw."
"Photographic evidence is admissible, as is other demonstrative evidence, if a proper foundation is laid showing that the photographs accurately depict the subject and if such evidence will be helpful to the jury." The proponent of photographic evidence is not required to offer the testimony of the person who took the photograph: "[T]hough the requisite foundation may, and usually will, be laid by the photographer, it may also be provided by any witness who perceived the events filmed."
Johnson v. State, 636 P.2d 47, 67 (Alaska 1981) (citing Kaps Transp. Inc. v. Henry, 572 P.2d 72, 75 (Alaska 1977)); see Thompson v. State, 210 P.3d 1233, 1239 (Alaska App. 2009).
Beaumaster v. Crandall, 576 P.2d 988, 996 (Alaska 1978) (quoting McCormick, Handbook of the Law of Evidence, § 214 at 533 (2d ed. 1972)).
Decker testified that the photographs matched "exactly" the scene he observed in the front arctic entry. This testimony established an adequate foundation for the admission of the photographs.
Akelkok also makes a number of arguments related to Decker's testimony about the photographs. Decker testified that Esletzbicheler explained that she went to Akelkok's home because she heard that Akelkok was "partying," that she observed the trash bags full of empty beer cans in Akelkok's arctic entry, and that she then photographed the trash bags. Akelkok argues that the photographs were inadmissible because Decker's testimony included these hearsay statements by Esletzbicheler. But this hearsay testimony was admissible in the absence of any objection. These additional hearsay statements attributed to Esletzbicheler do not erode the adequate foundation established by Decker's personal observations.
See Douglas v. State, 166 P.3d 61, 85 (Alaska App. 2007) ("[H]earsay that would be objectionable is nevertheless admissible if no hearsay objection is raised.").
Akelkok also argues that the photographs should have been excluded because Esletzbicheler illegally entered his arctic entry. Quoting the dissent in State v. Long, Akelkok contends that the exclusionary rule "is the only effective remedy that will protect against unconstitutional intrusions on privacy by busybodies or snitches." Judge Torrisi did not determine whether Esletzbicheler's entry was illegal. But even an illegal search by a private citizen does not involve the type of state action that will require the resulting evidence to be excluded.
700 P.2d 153 (Mont. 1985).
Id. at 160 (Sheehy, J., dissenting) (lamenting the court's reversal of the long-standing application of the exclusionary rule to private action in Montana based upon a privacy provision in the Montana Constitution).
See Walter v. United States, 447 U.S. 649, 656, 100 S. Ct. 2395, 2401, 65 L. Ed. 2d 410 (1980); Bell v. State, 519 P.2d 804, 807 (Alaska 1974); Cullom v. State, 673 P.2d 904, 904-05 (Alaska App. 1983).
Akelkok also argues that VPSO Decker and Trooper Fieser illegally entered his arctic entry, and that it was plain error for the trial court to admit testimony relating to that illegal entry. But Akelkok failed to raise this argument before the superior court, and the argument cannot be raised as a matter of plain error on appeal.
See Moreau v. State, 588 P.2d 275, 280 (Alaska 1978) (holding that issues involving the exclusionary rule are not appropriately raised for the first time on appeal); Longley v. State, 776 P.2d 339, 343-44 (Alaska App. 1989) (same).
Akelkok submits that the State's failure to call Esletzbicheler at trial was a violation of the Confrontation Clause. Akelekok did not object to Esletzbicheler's hearsay statements at trial. Assuming for purposes of this opinion that this issue could be recognized if it involved plain error, any error here would be harmless because Esletzbicheler's hearsay statements were entirely cumulative. Decker testified that he observed the trash bags exactly as shown in Esletzbicheler's photographs. Trooper Fieser also testified that he saw the bags filled with beer cans inside the arctic entry, and that the photographs accurately reflected the scene. Walcott testified that he observed Akelkok carry away white trash bags filled with Rainier beer cans, like the bags depicted in the photographs.
See Stumpf v. State, 749 P.2d 880, 895 (Alaska App. 1988).
In summary, Esletzbicheler's photographs were properly admitted based on Decker's observations, and Akelekok has established no reason that they should have been excluded.
The trooper's testimony
Trooper Fieser testified that when he initially contacted Akelkok and "confronted him about the burglary," Akelkok told him that "he didn't know anything about it and that [Fieser] needed to talk to his lawyer." Fieser continued: "[B]efore he said . . . the word lawyer, he said that that wasn't his house, that it belonged to his brother, that I needed to go talk to Charles Akelkok." Akelkok did not object to this testimony at trial. On appeal, Akelkok reminds the court that "[i]t is well-settled that prosecutorial comment on silence for substantive or impeachment value is constitutionally prohibited." Akelkok argues that the jury likely inferred that his assertion of his constitutional right to counsel was an indication of his guilt and a suggestion that he was trying to hide behind his lawyer.
Gunnerud v. State, 611 P.2d 69, 75 (Alaska 1980) (citations omitted).
When a party does not object to disputed evidence in the trial court, the claim that the trial court erroneously admitted the evidence is reviewed for plain error. An error will qualify as "plain error" only if (1) the error was so obvious that it should have been apparent to any competent judge or lawyer, (2) the attorney representing the party who now claims error had no apparent tactical reason for failing to object, and (3) the error was so prejudicial to the fairness of the proceedings that failure to correct it would perpetuate manifest injustice.
Silvernail v. State, 777 P.2d 1169, 1174 (Alaska App. 1989).
Burton v. State, 180 P.3d 964, 968 (Alaska App. 2008).
It is not obvious that any judge or attorney would have recognized that Trooper Fieser's testimony was inadmissible. Fieser testified that Akelkok answered his initial question without any objection. Akelkok's suggestion that Fieser should "talk to [his] lawyer" was not a clear invocation of his right to silence, and the trooper did not question him further. We have also previously noted that the United States Supreme Court has held that the federal constitution does not necessarily prohibit comment on a defendant's prearrest silence.
Bloomstrand v. State, 656 P.2d 584, 587 (Alaska App. 1982) (citing Jenkins v. Anderson, 447 U.S. 231, 100 S. Ct. 2124, 65 L. Ed. 2d 86 (1980) (allowing admission of prearrest silence for impeachment)).
In addition, it is not obvious that Trooper Fieser's testimony was prejudicial. The prosecutor did not make any comment on Akelkok's remark about his lawyer at the time Fieser testified or at any other point during the trial. As was the case in Van Hatten v. State, Trooper Fieser's testimony "constituted a reference to, but not a comment on" Akelkok's remark, and the reference was a "brief and passing one . . . not directly elicited by the prosecutor's questioning." And, as this court explained in Van Hatten, "[a]ll of these circumstances significantly diminish the possibility of any prejudicial impact flowing from the improper testimony." Thus, Trooper Fieser's testimony did not constitute plain error because there was no obvious prejudice that resulted from this comment.
666 P.2d 1047 (Alaska App. 1983).
Id. at 1056.
Id.
Miscellaneous issues
In his reply brief, Akelkok argues that the State never completed its burglary investigation involving the Rainier beer, that Trooper Fieser swore there were approximately forty-six missing cases, and that State's Exhibits 5 and 10 prove his innocence. These arguments do not appear to advance any of Akelkok's preserved appellate claims. Akelkok also makes an unsupported assertion that his trial counsel was ineffective. All of these miscellaneous arguments are waived because they were raised for the first time in Akelkok's reply brief. Conclusion
McCracken v. State, 914 P.2d 893, 897 n. 1 (Alaska App. 1996).
We AFFIRM the superior court's judgment.