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investigating officer testified that defendant was not credible and two witnesses testifying against the defendant were credible
Summary of this case from Handy v. StateOpinion
Court of Appeals No. A-13054 No. 6880
06-24-2020
JOE ANGEL GARCIA, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Brooke Berens, Assistant Public Advocate, and James Stinson, Public Advocate, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law, although it may be cited for whatever persuasive value it may have. See McCoy v . State , 80 P.3d 757, 764 (Alaska App. 2002). Trial Court No. 3PA-16-00671 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Palmer, Vanessa H. White, Judge. Appearances: Brooke Berens, Assistant Public Advocate, and James Stinson, Public Advocate, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee. Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges. Judge WOLLENBERG.
Following a jury trial, Joe Angel Garcia was convicted of multiple felony counts in relation to a home-invasion robbery involving a marijuana grow operation. Garcia raises four issues on appeal.
The State concedes error as to three of these issues, and further concedes that these errors, at least when considered together, were not harmless. The State, however, does not concede error as to one issue: the superior court's denial of Garcia's request for a Thorne instruction.
After the State filed its brief, Garcia filed a motion for expedited consideration of his appeal in light of the State's concessions of error. We granted Garcia's motion and issued an order reversing Garcia's convictions and remanding his case for a new trial. Our order further stated that a written decision explaining our reasoning and addressing the Thorne issue would follow at a later date.
We now briefly explain the three errors that require reversal of Garcia's convictions, and we then resolve the Thorne issue. For the reasons we explain, we conclude that the superior court did not err when it denied Garcia's request for a Thorne instruction given the argument that Garcia made in the trial court. On remand, however, Garcia is free to renew his request for a Thorne instruction based on the alternative theory that he has articulated for the first time in this appeal.
The errors that require reversal of Garcia's convictions
The State concedes that three errors occurred and that these errors, at least when considered cumulatively, require reversal of Garcia's convictions.
First, one of the state troopers involved in investigating the case inappropriately testified at trial that the two other participants in the crime, who both testified against Garcia, were credible and that Garcia was not credible. "This Court has repeatedly condemned allowing a witness to act as a 'human polygraph' — i.e., allowing a witness to offer a personal opinion about the credibility of another witness's prior statements or testimony." We agree with Garcia and the State that the trooper's testimony about the credibility of key witnesses in this case violated that rule.
Kim v. State, 390 P.3d 1207, 1209 (Alaska App. 2017).
Second, during his cross-examination of Garcia, the prosecutor, without objection, questioned Garcia about his pre-arrest silence. Specifically, the prosecutor asked Garcia why he did not voluntarily contact police to give his side of the story once he discovered that the police viewed him as a suspect in the case.
As the State concedes, this line of questioning was plainly improper. The Alaska Supreme Court has recognized that a defendant's pre-arrest silence has "inherently low probative value" and a "high risk of unfair prejudice," and that commentary on a defendant's pre-arrest silence is therefore not only improper in most cases but can often amount to plain error.
Adams v. State, 261 P.3d 758, 765, 773-75 (Alaska 2011).
Third, the prosecutor made a series of inappropriate remarks during closing argument, including referring to defense arguments as "bullcrap," "laughable," and "ridiculous," and accusing Garcia of asserting "too many defenses," throwing "spaghetti at the wall," "hustling for drugs," and being content to live in a "shack" rather than provide for himself and his fiancée. A prosecutor is generally prohibited "from expressing a personal belief as to the evidence, from making appeals calculated to inflame the passions and prejudices of the jury, and from advancing arguments based on the consequences of the verdict or on issues other than the guilt or innocence of the accused." The prosecutor's comments here unquestionably violated that prohibition.
Patterson v. State, 747 P.2d 535, 538 (Alaska App. 1987) (citing 1 ABA Standards for Criminal Justice § 3-5.8 (2d ed. 1982)).
The prosecutor also described the reasonable doubt standard by analogizing it to the decision to board an airplane, an analogy we have previously concluded was inappropriate. We agree with the State's concession that the prosecutor's comments during closing argument were plainly improper.
Yang v. State, 2017 WL 838809, at *3 (Alaska App. Mar. 1, 2017) (unpublished).
In addition to conceding error as to each of the issues noted above, the State also concedes that, at least when considered together, these errors resulted in prejudice and that Garcia is therefore entitled to a new trial. As we stated in our previous order, we have reviewed the State's concessions, and we conclude that they are well founded. We therefore reverse Garcia's convictions.
See, e.g., Thompson v. State, 769 P.2d 997, 1005 (Alaska App. 1989).
See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (requiring an appellate court to independently assess whether a concession of error "is supported by the record on appeal and has legal foundation").
Garcia's request for a Thorne instruction
Garcia raises one additional issue on appeal that the State does not concede. He argues that the superior court erred in denying his request for a Thorne instruction — i.e., an instruction directing the jurors to assume that missing evidence would have been favorable to him.
In Thorne v. Department of Public Safety, the Alaska Supreme Court addressed the proper remedy when the police lose or destroy evidence that they have gathered during a criminal investigation. In order to receive a remedy under Thorne, the defendant must first demonstrate that the government took possession of a piece of evidence that has since been lost or destroyed. Thorne then directs the court to consider four factors when deciding whether the destruction or loss of evidence in the State's possession should result in a sanction against the State: "(1) the State's good or bad faith in failing to preserve the evidence; (2) the degree of culpability on the part of the State; (3) the importance of the evidence that was lost, in light of the other evidence in the case; and (4) the degree of prejudice suffered by the accused."
Thorne v. Dep't of Pub. Safety, 774 P.2d 1326, 1331-32 (Alaska 1989).
Stamper v. State, 402 P.3d 427, 430 (Alaska App. 2017).
Williams v. State, 418 P.3d 870, 880 (Alaska App. 2018).
When this issue was litigated in the superior court, Garcia argued that he was entitled to a Thorne instruction because the police took possession of and failed to preserve video footage that they obtained of the robbery. Garcia claimed that a thumb drive containing home surveillance footage that the victim provided to the police probably contained more video than was ultimately disclosed to the defense, and that the police must have lost or otherwise failed to preserve this footage.
Garcia also argued in the superior court that he was entitled to a Thorne instruction because the troopers viewed additional video when they returned to the victim's home a few days after the crime, but they failed to collect all of the video footage. The superior court rejected this argument, and Garcia does not challenge this ruling on appeal.
The superior court rejected this argument. After hearing testimony from both the victim and the troopers, the court found that the police had preserved and disclosed to the defense all of the video contained on the thumb drive. This is a factual finding that we review for clear error. We have reviewed the testimony of the victim and the troopers and see no clear error in the superior court's finding. And given its finding, the superior court did not err in denying Garcia's request for a Thorne instruction based on the allegedly missing video footage.
Cf. Stamper, 402 P.3d at 430 (treating the question of whether the police ever possessed security video footage as a question of fact); see also Meyer v. State, 368 P.3d 613, 617 (Alaska App. 2016) (noting that a trial court's factual findings are reviewed for clear error).
Garcia also argued that the thumb drive itself was a "non-fungible" item and that the loss of the thumb drive itself, rather than the loss of the video footage on the thumb drive, entitled him to a Thorne instruction. Garcia, however, never explained how the thumb drive had any relevance to his case beyond his assertion that it contained additional video footage. Given the superior court's factual finding that the thumb drive did not contain additional video footage, the loss of the thumb drive — in the context of this claim — did not result in any prejudice to Garcia, and Garcia was therefore not entitled to a Thorne instruction.
In addition to these two arguments, Garcia also raises a new argument on appeal: he claims that because the victim was running an illegal marijuana grow operation in his home, it was "more than plausible" that the victim "downloaded the video . . . to the thumb drive [and] then edited it to delete any incriminating footage." Garcia claims that these deleted files would not have been visible when the police copied the files on the thumb drive to a disc, but that they would have been recoverable from the thumb drive itself if the State had preserved it.
Garcia never raised this theory below. That is, Garcia never claimed that the missing thumb drive may have contained deleted but recoverable files, and that this possibility entitled him to a Thorne instruction. This issue is therefore not properly before us on appeal. Because Garcia will receive a new trial, however, he is free to raise this argument on remand.
Finally, we must address one additional issue related to Garcia's request for a Thorne instruction. Garcia's request was litigated, at least initially, under the assumption that the State was no longer in possession of the thumb drive that the victim provided to the police. But it is possible that this assumption was incorrect. At various points during the trial, the prosecutor asserted that he was in possession of the original thumb drive. The prosecutor's claim was never conclusively resolved; the court never held an evidentiary hearing and the State never established a chain of custody. We acknowledge this issue here simply to note that the parties are free to litigate this question on remand.
As we stated in our prior order, Garcia's convictions are REVERSED, and this case is REMANDED for a new trial.
The parties also agree that there are a number of errors in the presentence report. Should Garcia be convicted after retrial, these errors should be corrected.