Summary
affirming a conviction for evidence tampering when the defendant threw a knife behind a building after he stabbed someone and was fleeing the scene, but no one observed him dispose of the knife and the police had not yet become involved
Summary of this case from Benedict v. StateOpinion
Court of Appeals No. A-9612.
April 30, 2008.
Appeal from the Superior Court, Third Judicial District, Michael L. Wolverton and Larry D. Card, Judges, Trial Court No. 3AN-04-4360 CR.
Josie Garton and Margi Mock, Assistant Public Defenders, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Kenneth Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
David M. Adams assaulted two people and threw away the knife as he was fleeing the scene. He then resisted police efforts to search him for a weapon. As a result of this conduct, Adams was convicted of two counts of assault in the first degree, tampering with physical evidence, resisting arrest, and assault in the fourth degree. On appeal, Adams argues that (1) Superior Court Judge Larry D. Card erred when he denied his motion to dismiss the grand jury indictment, (2) Superior Court Judge Michael L. Wolverton erred when he allowed the State to introduce a portion of his statement to the police without allowing the defense to elicit another part of his statement, and (3) there was insufficient evidence to support his conviction for tampering with evidence. We affirm Adams's convictions.
AS 11.41.200(a)(1), (2).
AS 11.56.610(a)(1).
AS 11.56.700(a)(1).
AS 11.41.230(a)(1).
Factual and procedural background
Roberto A. Galindo and Adams met outside a hotel in downtown Anchorage. Several hours later they met Galindo's neighbor, Helen Akers, at the Carrs supermarket at 13th Avenue and Gambell. When Galindo said that they needed to make a telephone call, Akers invited them to her apartment, which was nearby.
When they arrived at Akers's apartment, Akers offered them beer and marijuana. Akers's husband, Russell Akers, and Edward A. Karshekoff were also present at the apartment. After talking for several minutes, Adams left the living room to use the bathroom. When Adams returned, he sat next to Galindo. Galindo then felt like he got hit in the throat. And then he saw that he was bleeding. Adams ran out of the apartment, slashing Akers's chin as he left.
Anchorage Police Officer Chris Mueller heard the dispatcher's report of an assault and saw a man walking near the scene of the reported stabbing. Officer Mueller stopped the man, who turned out to be Adams. Officer Mueller turned Adams over to Officer Scott C. Nissen. Adams resisted Nissen's attempt to conduct a pat down search, and Nissen wrestled him to the ground.
Adams admitted to Officer Nissen that he had stabbed two people. Adams said he had used a steak knife with a black handle and a four-inch blade. Adams claimed that Galindo had moved toward him in a threatening manner and had grabbed his shoulder. Adams said he had instinctively picked up the knife from the kitchen and defended himself. He stated that he accidentally cut Akers while he was fleeing her apartment.
Adams told Officer Nissen that he would show him where the knife was located. He said that he had thrown the knife and that it landed either on the roof or over the roof of a business building. The police were able to find the knife based Adams's description of where he had thrown it.
The State charged Adams with two counts of assault in the first degree, tampering with physical evidence, resisting arrest, and assault in the fourth degree. At trial, Adams testified that he had acted in self-defense when he stabbed Galindo and that he accidently cut Akers when he was fleeing from the apartment. The jury convicted Adams of all five charges. Adams appeals.
Why we conclude that Judge Card did not err in denying Adams's motion to dismiss the indictment
Adams argues that Judge Card should have dismissed the indictment because the prosecutor presented inadmissible hearsay to the grand jury. Judge Card denied Adams's motion to dismiss because he concluded that, even without the evidence that Adams claims was wrongly presented, there was sufficient evidence for the grand jury to indict him.
At the grand jury proceeding, the State called two witnesses: Helen Akers and Officer Alan Rydberg. Akers testified that at about 12:30 on the morning of May 8, 2004, she ran into Galindo and Adams at the Carrs supermarket. She had never met Adams before. She invited Adams and Galindo over to her apartment when Galindo indicated they needed to use the phone.
There were five people in the apartment — Akers, Russell Akers, Edward Karshekoff, Galindo, and Adams. Akers testified that Adams seemed to be new to Alaska, and the conversation mostly involved talking and laughing about Alaska stories. Akers testified that there had been no arguments during the evening.
At some point, perhaps about 4:00 a.m., Russell Akers left the common area of the apartment — Helen Akers presumed he went to bed. Akers was about to ask Karshekoff, Galindo, and Adams to leave. But Adams suddenly had a knife and was coming at her — she ducked her head, but the knife struck her chin. Adams then attempted to unlock the door and get out of the apartment. Karshekoff started hollering for Russell Akers to get a towel, while Galindo was attempting to get the window open (in an attempt to get air because he had been stabbed in the throat). At that point, Akers realized that Galindo had been injured before her. Akers testified that the knife Adams used was not her knife — she did not recognize the handle. In addition, Akers testified that she did not remember Adams going into the kitchen at any point during the evening.
Also at the grand jury proceeding, Officer Rydberg testified that he was the first officer to arrive at Akers's apartment. Rydberg testified that he identified the first victim as Galindo, who was holding his neck with his left hand and who had blood all over his hand, neck, and the neck area of his sweatshirt. Rydberg testified that Galindo told him Adams had stabbed him. Rydberg testified that Akers was the second victim, and that she appeared to have a slashing cut approximately four inches long from her chin to her right cheek. Rydberg also testified to the contents of Officer Nissen's report — Rydberg stated that, according to Nissen's report, Adams said he had been getting a glass of water at the kitchen sink when Galindo came toward him in an aggressive manner and grabbed his shoulder. Adams said he instinctively grabbed a knife and stabbed Galindo in the neck. According to Rydberg, Adams then told Nissen that he had attempted to leave the apartment, and had accidently slashed Akers as he was leaving.
The prosecutor then elicited testimony from Rydberg regarding some statements that Karshekoff made to Officer James Trull. The prosecutor stated that he was presenting this information because it was potentially exculpatory to Adams. Based on Trull's report, Rydberg testified that Karshekoff believed that a drug deal was occurring in the apartment and that the drug deal had led to a disagreement.
Adams filed a motion to dismiss the indictment, claiming that Karshekoff's statement that the incident might have been motivated by a drug deal should not have been presented to the grand jury because it was inadmissible hearsay. Judge Card denied the motion. He ruled that, even if Karshekoff's statement should not have been presented to the grand jury, the remaining evidence that the State presented was sufficient to support the indictment. He concluded that the testimony about the drug deal was not decisive to the grand jury's decision to indict.
In Stern v. State, we set out a test for the trial courts to use when a defendant shows that the State presented improper evidence to the grand jury: "[W]hen a defendant proves that the grand jury heard improper evidence, the superior court must engage in a two-part analysis." First, the court subtracts or removes the improper evidence from the total case heard by the grand jury and determines whether the remaining evidence would be legally sufficient to support the indictment. If the indictment survives the first step of the analysis, the court proceeds to the second step. In the second step, the court assesses the degree to which the improper evidence might have unfairly influenced the grand jury's decision to bring back a true bill. The question is whether "the probative force of that admissible evidence was so weak and the unfair prejudice engendered by the improper evidence was so strong that it appears likely that the improper evidence was the decisive factor in the grand jury's decision."
827 P.2d 442 (Alaska App. 1992).
Id. at 445.
Id. at 445-46.
Id. at 446.
This is the test Judge Card applied. Judge Card concluded that Adams's "statement alone, even if everything else was left out, would be sufficient for the grand jury to indict in this case." He also concluded that Karshekoff's statements were not decisive in the grand jury's decision to indict. We have reviewed the testimony that the State presented to the grand jury. We agree with Judge Card that the State presented sufficient evidence to indict Adams without Karshekoff's statement, and that Karshekoff's statement was not decisive in the grand jury's decision to indict. We accordingly affirm Judge Card's ruling denying Adams's motion to dismiss the indictment.
Why we conclude that Judge Wolverton did not commit reversible error in restricting the admission of Adams's statement to Officer Nissen
Adams next argues that Judge Wolverton erred by refusing to admit his statement to the police that he had acted in self-defense when he stabbed Galindo, and that he had stabbed Akers accidently.
At trial, Officer Nissen testified that Adams admitted that he was at Akers's apartment and that he had stabbed two people. During cross-examination, Adams's attorney attempted to elicit the remainder of Adams's statement to Nissen. The prosecutor objected on hearsay grounds.
At a bench conference, Adams's counsel made an offer of proof. She represented that in Adams's statement to Nissen, Adams had claimed self-defense: "[Adams] told [the officer] exactly what happened that night, specifically that this person came up, aggressively approached him, put his arm on his shoulder, and that my client picked up the knife and, defending himself, accidentally stabbed him, and then on his way out the door accidentally stabbed Helen Akers."
Adams's counsel argued that by presenting the first part of Adams's statement, the State had opened the door to admitting the remainder of the statement. But Judge Wolverton sustained the State's hearsay objection, stating that if Adams wanted the remainder of the statement to come in, Adams could testify.
Later in the trial, Adams did testify. He testified that he was in Akers's kitchen when Galindo came at him aggressively with his fist cocked. Adams testified that he instinctively grabbed a knife that was in the kitchen and defended himself from Galindo's attack. He also stated that he accidentally cut Akers across the chin while he was trying to escape from the house.
Later in his testimony, Adams discussed what he had told Nissen that evening. Adams stated that he told Nissen "what had happened that night . . . As best as [he] could."
On appeal, Adams argues that it was unfair for Judge Wolverton to allow the State to introduce his statement to Nissen that he had stabbed two people without admitting the rest of his statement in which he set out his self-defense explanation. Adams relies on the "rule of completeness."
The "rule of completeness" is a "common-law rule of evidence designed to prevent litigants from introducing portions of an out-of-court statement when these portions, taken out of context, would tend to be misleading."
Sipary v. State, 91 P.3d 296, 299 (Alaska App. 2004).
Under the common-law rule of completeness, "a party has the right to introduce the remainder of a writing [or] statement, correspondence, former testimony, or conversation that his or her opponent introduced" to the extent that this remainder "relates to the same subject matter and . . . tends to explain or shed light on the meaning of the part already received."
Id. (quoting State v. Warren, 732 A.2d 1017, 1019 (N.H. 1999)).
In other words, "when one party introduces portions of an out-of-court statement (whether oral or written), an adverse party is entitled to introduce remaining portions of the statement to the extent that [doing so] is necessary to correct any material misimpression that the initially offered portions might arguably create."
Id.
Even if we assume that Judge Wolverton erred by not allowing Adams to question Nissen about the part of Adams's statement in which he claimed self-defense, we conclude that any error was harmless. During his own testimony, Adams testified that he acted in self-defense, that he told Nissen that he acted in self-defense, and that his account to Nissen was the same account that he was offering at trial.
Adams argues that his testimony was not sufficient. He argues that, from the testimony presented at trial, a jury might conceivably conclude that Nissen's testimony contradicted Adams's claim that he told Nissen he had acted in self-defense. But after testifying to his version of the events, Adams never asked to recall Nissen to the stand to clarify this point.
Under Evidence Rule 801(d)(1)(B), a prior statement that is consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication is exempted from the definition of hearsay. Under this evidence rule, Adams was allowed to testify about his prior statements to Nissen. And, if Adams felt he needed more than his own testimony to establish his prior consistent statement, Adams could have asked to recall Nissen or to have the tape recording that Nissen made of his statement played for the jury. Adams never asked for this remedy. Adams therefore has not preserved for appeal the argument that his testimony at trial was insufficient to establish that he told Nissen that he acted in self-defense.
Why we conclude that the State presented sufficient evidence for the jury to convict Adams of tampering with evidence
Adams argues that there was insufficient evidence to convict him of tampering with evidence. To convict Adams of tampering with evidence, the State had to prove that he "destroy[ed], mutilate[d], alter[ed], suppress[ed], conceal[ed], or remove[d] physical evidence with intent to impair its verity or availability in an official proceeding or a criminal investigation."
AS 11.56.610(a)(1).
Adams's conviction for this offense was based on the evidence that he ran from the apartment with a knife and then disposed of the knife while fleeing. Adams told Nissen that he threw the knife while he was running from the scene of the stabbing and that the knife would have landed either on the roof or over the roof of a business building. Based on Adams's description of where he threw the knife, the police were able to recover it from behind the building where Adams said he had tossed it.
Adams argues that he did not commit the actus reus of tampering with evidence because he abandoned the knife rather than concealed it. Adams does not appear to contest that there was sufficient evidence to show his intent to conceal the knife to impair its availability in a criminal investigation. Rather, he argues that to be convicted of tampering with evidence he had to dispose of the evidence in a manner that made its recovery more difficult. He points out that, after he told the police where the knife was, they were easily able to recover it.
Adams supports his argument with two cases from this court in which we concluded that the defendants were not guilty of tampering with evidence because they had merely abandoned the evidence rather than concealed it.
In Vigue v. State, this court held that the defendant did not commit the offense of tampering with evidence when he dropped drugs to the ground in the presence of the police. The officer observed Vigue's actions and was alerted that something might be on the ground where Vigue was standing. We concluded that even if Vigue intended to make it less likely that the officer would discover the drugs, Vigue's conduct amounted "to nothing more than abandonment of the evidence, not suppression or concealment of evidence."
987 P.2d 204 (Alaska App. 1999).
Id. at 210.
Id.
In Anderson v. State, we held that the defendant's act of tossing a handgun and ammunition from a car while being chased by the police did not constitute tampering with evidence. As in Vigue, we conceded that "the defendant may have intended to make it harder for the police to detect or recover the articles of physical evidence." But we concluded that Anderson had not concealed evidence because the police had observed Anderson's actions and were aware of the possibility that the evidence might be on the ground along the car's route. In reaching this conclusion, we acknowledged that throwing away evidence could constitute tampering with evidence in some situations: "This is not to say that the act of tossing away evidence can never constitute evidence tampering. The test appears to be whether the defendant disposed of the evidence in a manner that destroyed it or that made its recovery substantially more difficult or impossible."
123 P.3d 1110 (Alaska App. 2005).
Id. at 1119.
Id.
Id.
In a more recent case, with facts more similar to those presented here, we upheld the defendant's conviction for tampering with evidence. In Y.J. v. State, the defendant, after a police chase, ran into a condominium unit and placed a gun holster under a bed. Y.J. argued that placing the holster under the bed was equivalent to dropping the evidence in plain view of a policeman because the police quickly located the holster when they searched the condominium for weapons. We distinguished Anderson and Vigue on the ground that "there was a break in the action, that Y.J. had reached a place of temporary refuge, and that Y.J. hid the holster in such a manner that it could not definitely be linked to him until the police interviewed the home owner and verified that the holster did not belong to anyone living there."
130 P.3d 954 (Alaska App. 2006).
Id. at 956.
Id. at 957.
Id. at 958.
We conclude that Y.J. governs the result in this case. The police did not observe Adams dispose of the knife. A fair-minded jury could reasonably find that Adams threw the knife in such a manner that the police would have had a substantially more difficult time finding the knife or connecting it to Adams. The fact that Adams later told the police where to find the knife does not change the fact that Adams committed the offense (although certainly his actions in directing the police where to find the knife could be a mitigating factor for the court to consider in sentencing). Considering the evidence in a light most favorable to the State, we conclude that there was sufficient evidence for the jury to convict Adams of tampering with evidence. It is arguable that because the knife wound up in a parking lot in plain view, it would have been easy to find even without Adams's assistance, and that Adams was only guilty of an attempt. But this issue has not been briefed or argued. We therefore do not decide this issue.
See, e.g., Brown v. State, 693 P.2d 324, 328 (Alaska App. 1984).
Conclusion
We conclude that Judge Card did not err in denying Adams's motion to dismiss the indictment. We also conclude that Judge Wolverton did not commit reversible error in refusing to allow Adams to question Nissen about the fact that Adams told Nissen that he had acted in self-defense. Even if Judge Wolverton erred by excluding this evidence, any error was harmless. Adams introduced this evidence during his own testimony, and Adams did not ask to recall Nissen as a witness. Lastly, we conclude that the State presented sufficient evidence for the jury to convict Adams of tampering with evidence. We accordingly affirm Adams's convictions.
The judgment of the superior court is AFFIRMED.