Opinion
Court of Appeals No. A-10777.
November 30, 2011.
Appeal from the District Court, Fourth Judicial District, Fairbanks, Patrick S. Hammers and Jane F. Kauvar, Judges, Trial Court No. 4FA-09-578 Cr.
Jason A. Weiner, Gazewood Weiner, Fairbanks, for the Appellant. William A. Spiers, Assistant District Attorney, Fairbanks, and John J. Burns, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION
Leigh F. Selig was arrested for driving under the influence after he was involved in a four-vehicle collision. Selig was taken to the trooper station, where he was asked to submit to a breath test. The breath test showed that Selig had a blood alcohol level of .181 percent, over twice the legal limit. Selig then exercised his right to an independent blood test. This second test yielded essentially the same result: according to the blood test, Selig's blood alcohol level was .182 percent.
After Selig was formally charged with driving under the influence, he asked the district court to suppress the results of both the breath test and the blood test on the basis that the troopers did not make an audio recording of the DUI processing.
The district court held a hearing to investigate this matter. Based on the evidence presented at that hearing (in particular, evidence that the trooper's audio recorder was malfunctioning at the time of Selig's DUI processing), the district court concluded that the trooper had a valid excuse for failing to record his interactions with Selig at the trooper station. The court therefore denied Selig's suppression motion.
This same issue came up again at Selig's trial. Selig's attorney asked the trial judge to instruct the jury that, because the trooper failed to record his interactions with Selig during the DUI processing, the jury should presume that all of the information that would have been on the recording — presumably, all the events of the DUI processing, and all statements made during that processing — would support Selig's claim that he was not guilty. The trial judge declined to give this proposed jury instruction.
In this appeal, Selig renews his argument that all of the evidence obtained during his DUI processing should be suppressed because the troopers failed to record the DUI processing. Alternatively, Selig argues that he should be granted a new trial, and that the jurors at this new trial should be instructed to presume that all the unrecorded events of the DUI processing would support Selig's innocence. For the reasons explained here, we find no merit to these claims. The trooper's failure to record the DUI processing
In Stephan v. State, 711 P.2d 1156 (Alaska 1985), the Alaska Supreme Court held that the due process clause of our state constitution requires the police to make an audio recording, whenever feasible, of all custodial interrogations that occur in a place of detention (including police stations). Selig asks this Court to extend the Stephan recording requirement to all DUI processings.
Obviously, almost any DUI processing will involve some custodial interrogation, and that aspect of the processing is already covered by the Stephan rule. But Selig asks us to extend Stephan to all aspects of the DUI processing, including the breath test (or the refusal to take the breath test), the independent blood test (if one is requested), and all other non-interrogation aspects of the officer's interaction with the arrestee.
We conclude that we need not decide whether to extend the Stephan recording requirement to the non-interrogation aspects of a DUI processing, because the district court found that the trooper had a valid excuse for failing to record the DUI processing in Selig's case.
According to the trooper's testimony at the evidentiary hearing, when he brings a DUI arrestee to the station for a breath test, he routinely puts his audio recorder on the breath test machine and records his interactions with the arrestee. However, at the time of Selig's arrest, the trooper's recorder was malfunctioning; the switch had stopped working.
When the trooper was asked why he did not borrow a recorder from someone else, he explained that the troopers were unusually busy that day, and there was no one else at the trooper post. The trooper apparently engaged in an unsuccessful search for a recorder, but he had a handcuffed prisoner in his custody, and "[he] didn't want to go all over the building looking for a tape recorder while [he] had a prisoner there."
The evidence showed that the trooper's recorder was malfunctioning for a few days — although the testimony was unclear as to exactly when, during this time span, Selig's arrest occurred. When the judge issued her ruling at the close of the evidentiary hearing, she apparently found that the recorder had not been working for the two days preceding Selig's arrest.
As explained above, the trooper did not immediately take curative steps (such as having the recorder fixed, or procuring a replacement). But the district court found that the trooper's failure to take immediate action was excusable, because the trooper post was busy and there was no ready opportunity for the trooper to obtain a replacement recorder.
Given the facts as found by the district court, we agree that the trooper's failure to record Selig's DUI processing was excusable. Thus, even if the Stephan recording requirement applied to DUI processings, we would find no violation of Stephan in Selig's case. For this reason, we need not decide whether Stephan should apply to DUI processings.
The trial judge's refusal to give Selig's proposed jury instruction dealing with the trooper's failure to record the DUI processing
In Thorne v. Alaska D ept. of Public Safety, 774 P.2d 1326, 1331-32 (A laska 1985), the Alaska Supreme Court addressed the question of the proper remedy for situations where the police destroy evidence that they have gathered during a criminal investigation.
The defendant in Thorne was arrested for driving under the influence and he was taken to jail, where he was asked to perform sobriety tests. The police videotaped Thorne's performance of these sobriety tests, but they erased and re-used the videotape after Thorne's criminal case was resolved by a plea. (Thorne pleaded no contest to a reduced charge of negligent driving.) Thus, the videotape was no longer available when the Department of Public Safety took administrative action against Thorne's driver's license.
Thorne, 774 P.2d at 1327-28.
Id. at 1328.
The supreme court held that the police violated Thorne's right to due process when they destroyed the videotape before the administrative proceeding was resolved. The court then considered the type of remedy that Thorne should receive:
Id. at 1330-31.
We now address the appropriate sanction for the state's failure to preserve the videotape. The state's good or bad faith in failing to preserve the videotape is relevant to determining the appropriate sanction. We look to the degree of culpability on the part of the state, the importance of the evidence lost, the prejudice suffered by the accused, and the evidence of guilt adduced at the trial or hearing. [Citations omitted]
We think an appropriate sanction in this case would be to remand the case back to the [administrative] hearing officer with directions to presume that the videotape would have been favorable to Thorne.
Thorne, 774 P.2d at 1332.
Selig argues that, because of the trooper's failure to record his DUI processing, he was entitled to a similar jury instruction at his trial. But Selig's case differs from Thorne in a fundamental way. Selig's case does not involve police destruction of physical evidence. Rather, it involves a failure to "collect" evidence — that is, a failure to record a physical memorial of visual and aural evidence.
The general rule is that the State has no duty to collect physical evidence, and the State's duty to preserve evidence applies only to physical evidence that has actually been gathered. Thus, in normal circumstances, even though the State's destruction of previously collected evidence might entitle a criminal defendant to the type of favorable jury instruction discussed in Thorne, the State's failure to collect evidence would not entitle a defendant to such an instruction.
S n y d e r v. State, 879 P.2d 1025, 1028 (A laska A pp. 1994), reversed on other grounds, 930 P.2d 1274 (Alaska 1996); March v. State, 859 P.2d 714, 716 (Alaska App. 1993).
It follows that Selig's jury instruction claim really hinges on whether the trooper who arrested Selig violated a legal duty by failing to record Selig's DUI processing. We have already addressed this issue in the preceding section of this opinion, and we resolved this issue adversely to Selig. Accordingly, Selig was not entitled to his proposed jury instruction.
Conclusion
The judgement of the district court is AFFIRMED.