Opinion
Court of Appeals No. A-9562.
November 12, 2008.
Appeal from the Superior Court, Third Judicial District, Palmer, Eric Smith, Judge., Trial Court No. 3PA-04-2366 Cr.
Kathleen Murphy and Douglas Moody, Assistant Public Defenders, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Nancy R. Simel, 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.
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.
MEMORANDUM OPINION
The defendant in this case, Edward Allen Butler, was convicted of exposing himself to children in two separate incidents. At trial, Butler presented a defense of alibi — i.e., that he was out of state on the dates in question. The issue presented in this appeal is whether the superior court should have granted Butler's request for a mistrial when, in the middle of trial, the State discovered (and disclosed) the dispatch log of a call to 911 that placed Butler's first act of self-exposure on an earlier date than had previously been thought — thus tending to defeat Butler's claim of alibi.
The answer to this question — whether the trial judge was required to grant Butler's request for a mistrial — rests primarily on the answers to two subsidiary questions: First, was the late disclosure of the 911 dispatch log a violation of the State's disclosure obligations under Alaska Criminal Rule 16? And second, did the change in the evidence deprive Butler of a fair opportunity to prepare and present his defense?
As we explain in this opinion, we have some doubts as to whether the late disclosure of the 911 dispatch log was a violation of Criminal Rule 16. The prosecutor's office did not know about the log until the middle of trial, and the prosecutor immediately disclosed this information to Butler. Thus, the claim that the late disclosure violated Criminal Rule 16 ultimately rests on the assertion that the 911 dispatchers were either police employees or employees of some other agency that regularly reports to the prosecutor's office — so that, even if the prosecutor's office was unaware of the log, the failure to disclose the log earlier can be attributed to the State under Criminal Rule 16(b)(4)(ii), which makes the prosecutor responsible for all "material and information in the possession or control of . . . [persons] who either regularly report [to the prosecuting attorney's office] or[,] with reference to the particular case[,] have reported to the prosecuting attorney's office."
However, even if this issue is resolved in Butler's favor, we still conclude that Butler was not unfairly prejudiced by the change in the evidence. Obviously, the new evidence cast doubt on the defense case, and it made Butler's task at trial significantly more difficult. But the record shows that Butler's attorney knew, when he committed to an alibi defense, that the dates of the offenses were uncertain. This problem was discussed openly in court, and the prosecutor warned Butler's attorney that, because the reports of Butler's offenses were made by young children, she could not guarantee that the dates specified in the indictment were correct. Despite this warning, Butler's attorney chose to go forward with the trial rather than seek a continuance to allow further investigation and clarification of the dates of the offenses. For this reason, we conclude that Butler was not entitled to a mistrial when his tactical choice turned out badly.
Underlying facts
On August 9, 2004, fifteen-year-old A.S. was walking alone in her neighborhood when an older, white-colored car pulled up behind her and began driving slowly. When A.S. began walking a little faster, the car began going faster too. It pulled up slightly ahead of her, and then slowed down again.
According to A.S.'s testimony at trial, this car had only one occupant — the driver. This driver was a bearded man in his forties or fifties who was not well-groomed. A.S. knew everyone in her neighborhood, and she did not know this man.
While A.S. was watching this man, he lifted himself from the driver's seat, and A.S. saw that he was not wearing pants. The man then pointed with his hand toward his penis, which was erect. A.S. "freaked out" and walked away from the street, up the driveway of a neighbor she knew. She watched as the white car turned onto another street and drove away.
Soon after, A.S. saw some neighbors driving by on their four-wheelers; she asked them for a ride home. When A.S. got home, she told her parents what had happened, and then she called 911 to report the incident.
Later that night (actually, the early morning of August 10, 2004, at 12:01 a.m.), an adult woman, Nataliya Zhuchkov, telephoned 911 and made a corroborative report. Zhuchkov worked as the director of an organization providing care to the elderly and disabled in that same Wasilla neighborhood. As a result of her job, Zhuchkov knew almost everyone in the neighborhood. That summer, she had observed a white Pontiac, a car she did not recognize, come into the neighborhood several times. The car would pull into driveways, stay for a few minutes, and then drive off. Then, on the night of August 9th-10th, one of Zhuchkov's neighbors approached Zhuchkov and told her said that the man in the white Pontiac was exposing himself to children. Zhuchkov called 911 to forward this report to the authorities.
Sometime later in A ugust 2004 (the children w ho witnessed the incident did not know the exact date), a similar incident occurred in the same neighborhood. Fourteen-year-old Y.T. was walking in the neighborhood with her younger sister and some other young girls when they saw an older white Pontiac pull into a driveway ahead of them. The car stopped halfway into the driveway, blocking their passage and forcing them to walk out into the street to get around it.
Y.T. saw that the only person in the car was the driver, a man in his forties or perhaps older, with long hair. According to Y.T.'s testimony, this man was fondling his "hot dog". When she and the other girls turned and ran into the next driveway, the white car quickly followed them — coming so close that it almost hit Y.T.'s younger sister. At this point, another car appeared (this one driven by a friend of Y.T.'s), and the driver of the white car sped away.
By mid-August, everyone in the neighborhood was talking about, and looking for, the man driving around in the white Pontiac who was exposing himself to children. On the evening of August 21, 2004, Zhuchkov was working in her office when a group of neighbors appeared in her yard; they were yelling, "Here he is! Call 911!" Zhuchkov asked them what was going on, and three people told her that they had the license plate number of the car. At 7:33 p.m., Zhuchkov called the Alaska State Troopers to report that the white male was driving around her neighborhood in an older, white Pontiac with license plate "DTB 776", and that he was exposing himself to children.
Trooper Marc D. Hendrickson responded to this call. As he approached the neighborhood, he observed an older white Pontiac, driven by a white male, pass him on a residential street. Hendrickson also observed an adult male and some juveniles standing outside of a residence, jumping up and down. They were pointing at the Pontiac and yelling, "That's the car! That's the car!" Hendrickson turned his patrol car around and attempted to stop the Pontiac and contact the driver, but the driver eluded him.
A second trooper arrived on the scene to assist Hendrickson. The two troopers went through the neighborhood, looking for the Pontiac, and eventually they found the vehicle. Hendrickson turned his overhead lights on and performed a traffic stop.
When Hendrickson approached the car, he noticed a strong odor of alcoholic beverages and he saw that the driver had bloodshot, watery eyes. The driver was Butler.
Hendrickson then called Zhuchkov and asked her to bring the juveniles who had reported the offenses to see if they could identify the driver. Zhuchkov arrived with three children: V.P., Y.T., and N.T. All three told Hendrickson that Butler was the man they had seen driving around the neighborhood.
Meanwhile, Briggs conducted a series of field sobriety tests on Butler and determined that Butler was intoxicated. Butler was then arrested for driving under the influence and indecent exposure. (A post-arrest breath test showed that Butler's blood alcohol level was .195 percent.)
Butler was subsequently charged with two counts of first-degree indecent exposure under AS 11.41.458(a)(1) (exposing oneself to a child under the age of 16 and, while doing so, masturbating), and one count of driving under the influence. Before trial, Butler pleaded no contest to the DUI charge. Thus, his trial involved only the two counts of indecent exposure.
The controversy and the evidence pertaining to the date of Butler's earlier offense
In the indictment, Butler's two acts of indecent exposure were identified as having occurred "on or about August 21, 2004" (Count 1 of the indictment — the count involving A.S.), and "on or about August 18, 2004" (Count 3 of the indictment — the count involving Y.T.). For present purposes, it is important to note that the date alleged in Count 1 (August 21st) was the date of Butler's arrest, and not the date of the incident involving A.S. — which obviously occurred earlier.
Butler's trial began on the morning of August 3, 2005. Just after the court went on record, and just before the prospective jurors were brought into the courtroom, the prosecutor notified the court and the defense attorneys that "there was some confusion" concerning the date of the incident in Count 1. The prosecutor stated that she now believed that the earlier incident occurred on August 10th, and she was trying to get the 911 dispatch logs to see if they confirmed this earlier date. She promised that she would provide a copy of the 911 dispatch log to the defense team as soon as she received it. Neither of Butler's defense attorneys voiced any immediate response to the prosecutor's announcement.
The prosecutor then brought up the fact that Butler's attorneys had filed a notice that Butler intended to present a defense of alibi. The prosecutor asked if the alibi defense applied to both counts of indecent exposure. When one of Butler's defense attorneys confirmed that the alibi defense applied to both counts, the prosecutor again warned the defense attorneys that "there m[ight] be confusion with regard to one of those dates". The only response from the defense attorneys was, "Okay. Thank you for warning us."
The jury was then summoned to the courtroom, and jury selection commenced.
About four hours later (a little after two o'clock in the afternoon), with jury selection complete, the jury sworn, and the trial about to begin, one of Butler's defense attorneys told the court, "I guess I need a little information from the State." The defense attorney then explained:
Defense Attorney: If they think they're . . . going to be amending . . . the earlier-in-time count, . . . if they're going to be amending the date [of that charge], . . . I think I'm entitled to notice of [that] — because, in an alibi defense, a date can be very crucial. And I would need to know how to approach that issue before I even give [my] opening statement.
And as I understand, the State will be principally relying on a [911] dispatch card that will have [the] date [that] a call was made, and that will pretty much factually settle the question of when a certain incident occurred. But I would ask for an explanation [from the prosecutor] at this time, so I know what the State will be intending to prove in that regard. And . . .
The Court: Okay.
Defense Attorney: . . . then I'll . . . talk to [my client], and then I can see [whether] I have an issue that I need to bring to [the court] at this time.
The trial judge, Superior Court Judge Eric Smith, then asked the prosecutor about the date of the offense alleged in Count 1.
The Court: Well, what is the date [in question]?
Prosecutor: Well, . . . I have not seen a dispatch log yet, and so I'm not sure. And, based on the police reports, it looks like it may be August 10th — and that's in the police reports that were provided to the defense a long time ago. But the indictment charges "on or about [August 21, 2004], and since its only what, 11 days' difference — But I did raise [this problem]. . . . And [the earlier date] has been in the police report.
The Court: Right, [but] the problem is [that], if Mr. Butler is going to assert an alibi defense, then the actual day may be important — because [his] alibi defense may or may not cover the date [on which] the State is alleging it happened.
. . .
Prosecutor: But be that as it may, I have given the defense all the information that I have. The . . .
The Court: When do you think you're going to get the [911] dispatch log?
Prosecutor: I am hoping to get it today. Just one moment. [whispered conversation] If you want, we can [make a] call during the break and see if it's ready.
The Court: Well, that would be appropriate.
Prosecutor: Okay.
Defense Attorney: Yeah — because . . . it's hard for me to make a decision about [my] opening [statement] until . . . I have a better idea of what the State intends. Because we've been relying on the date in the indictment . . ., so it's pretty important to know how to proceed[.] So I guess I'd ask to postpone opening statements until we get that information.
Judge Smith then ordered a recess until that afternoon, to allow time for the prosecutor to obtain the 911 dispatch log and thus clarify the date of Butler's earlier offense, the one involving A.S.
Later that day, the prosecutor obtained a 911 dispatch log which showed that the 911 operators received calls from Nataliya Zhuchkov at 12:01 a.m. on August 10, 2004 and again at 7:33 p.m. on August 21, 2004. The prosecutor told the court and the defense attorneys that this was all the information she had with respect to the dates of the offenses. She added that the dispatch log "[did]n't show what I expected it to show", but that Butler "[could] make of it what he wants".
Butler's lead attorney, George Davenport, responded that the dispatch log was unhelpful, because he still did not know "[whether] the State [was] contending that . . . Count 1 occurred on August 10th". The defense attorney added that the dates of Zhuchkov's telephone calls did not directly establish the dates of the offenses.
Judge Smith then asked the prosecutor to declare the State's position regarding the dates of the offenses. The prosecutor responded that, based on the testimony presented to the grand jury, Butler's two offenses occurred within a two-week window — presumably, the two weeks preceding Butler's arrest on August 21st — but the prosecutor conceded that she did not have specific dates. The prosecutor acknowledged that the indictment contained specific dates, but she explained that "the testimony and the police reports indicate that there may be a few days, a week — these are children we're dealing with".
Judge Smith then told Butler's defense attorneys that they would have to decide whether they wished to reserve the defense opening statement until after the State's case-in-chief — so that they would know what dates were disclosed by the evidence. Davenport replied, "Yeah, they [ i.e., the State] have not helped me decide that question."
The discussion then moved to another topic: Butler's decision to plead no contest to the DUI charge rather than go to trial on that charge.
After Butler entered this plea, Judge Smith asked the prosecutor how much time she would need for her opening statement. The prosecutor replied that she would like twenty minutes. Judge Smith then asked Mr. Davenport how much time he needed for his opening statement, and Davenport replied, "About the same."
At this point, the jury was brought back to the courtroom. Judge Smith advised the jurors that Butler had pleaded no contest to the DUI charge, and then the prosecutor delivered the State's opening statement. Immediately after the prosecutor concluded her opening statement, Butler's lead defense attorney, Davenport, delivered the defense opening statement.
In other words, Davenport delivered the opening statement without seeking further clarification of the dates of the offenses. He did not follow Judge Smith's suggestion and reserve the defense opening statement until after the State presented its case-in-chief, nor did he seek a continuance or any other relief from the court.
In his opening statement, Davenport told the jurors that the children had confused Butler with someone else — and that Butler was not present on the dates of the offenses. Davenport then openly acknowledged to the jurors that Butler might have a problem with this alibi defense:
Defense Attorney: Mr. Butler . . . has accounts for where he was at the times that we think they say this happened — although we're at a bit of a disadvantage here because the State is really unclear as to when all this really happened. And [you] can see how that puts [us] in a bind: If you don't — I mean, how can you . . . prove where you were when you don't know what the State is saying [regarding] when [the offense] happened?
So there's going to be some confusion in the evidence, and I'm afraid that [this is] going to be important for you to decide. . . . And if Mr. Butler wasn't there, he didn't do it.
The taking of testimony at Butler's trial began on the morning of Thursday, August 4, 2005. The State presented three witnesses that morning, including Trooper Hendrickson and Nataliya Zhuchkov, and then Judge Smith called a lunch recess. When Butler's trial recommenced a few minutes before 2:00 p.m., the State called A.S. to the stand.
During her testimony, A.S. admitted that she could not positively identify Butler as the man who exposed himself to her, nor was she sure of the date on which the incident occurred — although she was sure that it happened in August 2004. However, A.S. was positive that she called 911 that same day, when she got back to her home.
At the conclusion of the testimony on August 4th, Butler's trial was recessed until the afternoon of Monday August 8th. When court reconvened, the prosecutor told Judge Smith that she had conducted a further investigation of the 911 dispatch logs, and that she had made a further disclosure to the defense:
Prosecutor: [A]fter [A.S.] testified on Thursday afternoon, and [she] was very adamant that she personally had called 911, I asked again for our paralegal to look for [that] 911 call.
[The paralegal] had previously checked — and, normally, when a 911 call is made, it shows up [under the person's name] in APSIN. . . . [The paralegal] ran [A.S.], and there was no 911 call in her APSIN [record].
Well, I had [the paralegal] contact the 911 dispatcher, and we found out that you can actually find 911 calls another way — which is, if you have the phone number that it was [made] from, you can call the police department and have them basically backtrack [to] the last time that that phone number called 911.
So I had [my paralegal] do that, and we did find the 911 call that [A.S.] had [testified about]. And . . . we have the dispatch log of that [call], which was . . . faxed over to Mr. Davenport's office — both the [Palmer Police Department] log and also the [Alaska State Trooper] Mat Com log — and I also left [Mr. Davenport] a voice mail about this on Friday morning [ i.e., the morning of August 5, 2005].
The dispatch [log] shows that [A.S.'s 911 call] was [made on] August 9[, 2004] . . . at . . . 10:54 [p.m.].
Based on this new information, the prosecutor asked Judge Smith for permission to amend both counts of the indictment so that they each encompassed windows of time — with Count 1 covering August 8 through 21, 2004, and Count 3 covering August 9 through 18, 2004.
Butler's attorney responded with a motion to suppress the evidence pertaining to the date and time of A.S.'s 911 call. The defense attorney argued that the State had violated the discovery rules by not finding and disclosing this information earlier, and the attorney further declared that the appropriate remedy was suppression of the evidence.
Judge Smith replied that, before he could consider suppression of evidence, the defense would have to establish that the prosecutor's violation of Criminal Rule 16 had been willful, and that a continuance of the trial would not cure the problem. The defense attorney then conceded that "[he had] no way to know whether it [was] willful" — and that, in fact, he "[did]n't see any grounds to assert that."
Nevertheless, the defense attorney asserted that he was entitled to suppression of the evidence because the evidence seriously undercut Butler's claim of alibi — a theory of defense that Butler was now committed to, by virtue of the defense attorney's opening statement. During his discussion of this point, the defense attorney amended his request for relief by declaring that he would be willing to have Judge Smith either declare a mistrial or suppress the evidence.
In order to further explain his claim of prejudice, Butler's attorney made an ex parte offer of proof to Judge Smith concerning the details of Butler's alibi defense. According to the defense attorney, Butler was prepared to present evidence that he drove to Anchorage after work on the afternoon of August 10, 2004, that he left Anchorage by plane shortly after midnight on August 11th for a trip to Iowa, and that he did not return home until the early morning hours of August 21st.
The defense attorney noted that if the indictment was amended as the prosecutor proposed, Butler would no longer have an alibi for the earliest dates covered by the two counts of the indictment. And the defense attorney explained that, if he had known that Butler would have to explain his whereabouts on August 8th, August 9th, and the early part of August 10th, he would have conducted a very different investigation — rather than simply relying on a few witnesses to corroborate that Butler was traveling out of state between the evening of August 10th and the early morning of August 21st.
When the ex parte presentation was over and the prosecutor rejoined the discussion, Judge Smith told the prosecutor that he agreed with the defense attorneys that the new information was important — because, for the first time, the State had specific evidence that the offenses might have occurred as early as August 8th or August 9th. However, to assess the defense attorney's claim of prejudice, Judge Smith replayed the audio record of the defense opening statement.
After listening to the defense opening statement, Judge Smith issued his ruling. First, he declared that he would not suppress the evidence of A.S.'s 911 call — because he found that the prosecutor's conduct "was [far] from willful" — that, in fact, the prosecutor "took the steps she needed to take when she understood the situation."
Judge Smith then concluded that a mistrial was not warranted:
The Court: Given the nature of the [defense] opening [statement, where the defense attorney] essentially said that it wasn't real clear when the kids were going to testify all this happened, . . . I'm prepared to continue [ i.e., delay] the defendant's part of this case. We'll have the State finish . . . its case, and then, Mr. Davenport, . . . we'll take a break . . ., and at the end of that break, you can tell me what kind of continuance you need.
. . .
Basically, my finding is that a continuance will enable Mr. Butler and [defense] counsel to evaluate and find the relevant witnesses, with respect to the [new] dates. . . . A mistrial is just too severe a [remedy], given the nature of the [defense] opening [statement] — that [the evidence] was vague as to when the [offenses] were [allegedly committed]. So I don't think Mr. Davenport [in his opening statement] made a promise he couldn't keep to the jury — because he freely admitted, at the outset, [that] he wasn't entirely sure what dates were going to be at issue.
Shortly thereafter, the prosecutor concluded the State's case-in-chief, and Judge Smith recessed the trial to give the defense attorneys the opportunity to confer with Butler about how to proceed. When court resumed, Butler's lead attorney announced, "My decision, as far as requesting a continuance or not, is to simply request [that we] resume tomorrow morning [at] the regular time."
Following the defense attorney's rejection of a continuance, Judge Smith ruled on the State's request to amend the indictment — the request to amend the wording of the charges so that they explicitly covered the earlier dates of August 8th and 9th.
Alaska Criminal Rule 7(e) states that a court "may permit an indictment or information to be amended at any time before verdict or finding if no additional or different offense is charged and the substantial rights of the defendant are not prejudiced." Here, the question was whether the change in the listed dates would prejudice Butler's substantial rights.
Relying on much the same reasoning as when he denied the defense request for a mistrial, Judge Smith allowed the proposed amendment of the indictment. Judge Smith concluded that this amendment did not prejudice Butler's substantial rights because (1) Butler had already been aware of the possibility that the offenses occurred earlier than the dates listed in the original indictment, and (2) Butler had been offered, and had declined, a continuance to meet the new evidence.
A few minutes later, at 3:53 p.m., Judge Smith recessed Butler's trial for the afternoon. When court reconvened at 9:00 a.m. the next morning, Butler's attorneys began presenting the defense case. As suggested by the defense opening statement, Butler's case included a claim of alibi, as well as assertions that the children had misidentified Butler and that they were wrong about the dates of the offenses.
In particular, the defense presented evidence that, although some witnesses described the perpetrator as having a black trench coat, and although Trooper Henderson described Butler as wearing a black trench coat when he initially stopped him, no coat was seized from Butler's person or recovered from his car. In addition, the defense presented evidence that some of the child witnesses told police that the offenses took place around August 11th, 12th, 16th, and 18th.
Butler then took the stand and testified that he was in Iowa on a family trip from August 10th through August 21st. He testified that he had been driving back from a grocery store when he was pulled over on the 21st, and that the neighborhood he was arrested in was on his way home from the grocery. Butler also testified that he had seen several old white Pontiacs in that neighborhood since the time of these incidents.
Butler's sister then testified about Butler's trip to Iowa, corroborating his claim of alibi for the period of August 10th through August 21st.
Finally, the defense presented the testimony of David G ardner, a co-worker of Butler's. Gardner testified that Butler was at work from 9:00 a.m. until 6:00 p.m. on August 9th. Gardner also testified that Butler was usually at home in the evenings, and that Gardner often stopped by to visit Butler in the evening around 8:00 or 9:00 p.m..
In the State's closing argument, the prosecutor relied on the evidence suggesting that the offenses could have occurred on August 8th or 9th, before Butler went on his trip to Iowa. In support of this assertion, the prosecutor pointed to A.S.'s call to 911 at 10:54 p.m. on August 9th, and to Nataliya Zhuchkov's call to 911 on August 10th at 12:01 a.m.. The prosecutor also argued that the reason the jury heard conflicting testimony about the dates of the offenses was that children do not pay attention to dates the way adults do, so they may not have remembered the dates correctly. She pointed out that many of the witnesses identified Butler as the man who had exposed himself in their neighborhood.
The following morning, the jury returned a verdict of guilty on both counts of indecent exposure.
Why we conclude that Judge Smith did not abuse his discretion when he denied Butler's request for a mistrial and when he granted the State's request to amend the dates specified in the indictment
From time to time, new information will be revealed at a criminal trial that aids one side or the other, or that hurts one side or the other. To a certain extent, this is an expectable consequence of calling witnesses into court to testify under oath and to be subjected to cross-examination.
But if new information comes to light during a criminal trial as a result of the State's failure to abide by Criminal Rule 16(b) and disclose the information earlier, then the defendant is entitled to a mistrial upon request if (1) the defendant offers a plausible way in which the defense case could have been prejudiced by the late disclosure, and (2) the State fails to affirmatively disprove the defendant's specific claim(s) of prejudice. Sivertsen v. State, 963 P.2d 1069, 1072 (Alaska App. 1998); Bostic v. State, 805 P.2d 344, 347-48 (Alaska 1991).
Thus, when Butler claims that Judge Smith should have granted him a mistrial because of the late disclosure of the date and time of A.S.'s call to 911, Butler's argument rests on the premise that this late disclosure was a violation of Criminal Rule 16(b). Judge Smith appears to have assumed that a violation of Rule 16 had taken place, but this topic received very little attention in the superior court.
The record is clear that the prosecutor herself had no prior knowledge of this information. In fact, it is undisputed that the prosecutor's paralegal engaged in a pre-trial search (an unsuccessful one) for any record of a 911 call from A.S. — and that the information about this call was uncovered only after A.S. took the stand at Butler's trial and insisted that she had called 911, and after the prosecutor directed her paralegal to renew her search for a log of the call. These were the facts that led the defense counsel to concede that there were no grounds for asserting a willful violation of Rule 16, and that led Judge Smith to affirmatively find that there had been no willful violation.
But if the prosecutor did not have this information until the renewed mid-trial search turned up the log of A.S.'s call, how did the late disclosure of this information constitute a violation of Rule 16? This question received essentially no attention in the superior court.
Criminal Rule 16 contains a provision that imposes a duty of disclosure on the State even if the prosecutor's office does not have the information in question. Under Rule 16(b)(4)(ii), the prosecutor is responsible for disclosing all "material and information in the possession or control of . . . [persons] who either regularly report [to the prosecuting attorney's office] or[,] with reference to the particular case[,] have reported to the prosecuting attorney's office."
In Butler's case, the superior court and the parties apparently assumed that the 911 dispatch logs fell into the category of information covered by subsection (b)(4)(ii). But the record does not clarify who runs the 911 switchboard in the Matanuska-Susitna Valley region, and whether that agency or inter-agency group fits within the definition codified in subsection (b)(4)(ii).
It may be that the answer to this question was so obvious to the superior court and the parties that it seemed to call for no exploration or explanation. For present purposes, we simply note the issue — so that our opinion is not read as an implicit ratification of the superior court's assumption.
But even assuming that knowledge of the 911 dispatch logs was properly attributable to the State under Rule 16(b)(4)(ii), so that the State violated Rule 16 by not earlier disclosing the date and time of A.S.'s 911 call, we agree with Judge Smith that the mid-trial disclosure of this information did not require a mistrial.
As explained above, when a defendant requests a mistrial rather than a continuance as the remedy for a mid-trial discovery violation, the defendant must show "a plausible way in which [the] defense [case] could have been prejudiced by the discovery violation". Once the defendant has made this minimal showing, the burden shifts to the State to prove that the defendant has not been prejudiced in the manner claimed.
Sivertsen, 963 P.2d at 1072 (citing Bostic, 805 P.2d at 348).
Bostic, 805 P.2d at 349.
In Butler's case, we agree with Judge Smith that Butler failed to present a plausible way in which the late disclosure of the information irreparably prejudiced the investigation or presentation of his case.
It is true, as the Alaska Supreme Court recognized in Howe v. State, 589 P.2d 421, 424 (Alaska 1979), that a continuance "is at best an awkward and disruptive substitute for pre-trial discovery" — and that "under certain circumstances[,] such as those involving strategic decisions concerning the conduct of the trial[,] a continuance is [simply] not an effective substitute for pre-trial discovery." This observation is the rationale underlying the supreme court's later decision in Bostic v. State, 805 P.2d 344 (Alaska 1991).
In Bostic, the supreme court held that a continuance was not an adequate remedy for the State's mid-trial discovery violation because Bostic had already committed himself to a theory of the case that was now unexpectedly rebutted by expert testimony — indeed, by the testimony of an expert with whom Bostic had a privileged relationship. The supreme court declared that, under these circumstances, a mistrial was required because "[a] continuance would have given Bostic only more time to agonize over how to unring a bell that should never have been rung in the first place." Id. at 348.
Like the defendant in Bostic, Butler committed himself in his opening statement to a theory of the case — i.e., alibi — that was adversely affected by the mid-trial disclosure of the date and time of A.S.'s call to 911. But as we explained earlier in this opinion, Butler's attorneys began the trial fully aware that the government's evidence pertaining to the dates of the offenses was imprecise — and, in particular, that the true dates of the offenses might be considerably earlier than the dates recited in the indictment.
Even before jury selection began, the prosecutor warned the defense attorneys that there "[might] be some confusion" regarding the dates of the alleged offenses. When Butler's attorneys did not react immediately to this announcement, the prosecutor pressed the issue. She reminded the court that Butler had filed a notice of alibi, and she noted that a change in the dates of the offenses might adversely affect whatever alibi Butler planned to present. The only response from the defense attorneys was, "Okay. Thank you for warning us."
About four hours later, the defense attorneys complained that the State's imprecision regarding the dates of the offenses might affect their opening statement, and they asked the prosecutor to be more specific. When the prosecutor responded that she could not be more specific, Judge Smith suggested that the defense attorneys might wish to reserve their opening statement until after the State's case-in-chief. But Butler's attorneys rejected this suggestion and, instead, delivered Butler's opening statement at the beginning of the trial.
In that opening statement, Butler's lead attorney openly acknowledged the problem created for the defense by the imprecision in the dates of the offenses:
Defense Attorney: Mr. Butler . . . has accounts for where he was at the times that we think they say this happened — although we're at a bit of a disadvantage here because the State is really unclear as to when all this really happened. And [you] can see how that puts [us] in a bind: If you don't — I mean, how can you . . . prove where you were when you don't know what the State is saying [regarding] when [the offense] happened?
So there's going to be some confusion in the evidence, and I'm afraid that [this is] going to be important for you to decide. . . . And if Mr. Butler wasn't there, he didn't do it.
In other words, Butler's attorneys knew about this problem, and they chose to proceed with the trial despite the risk posed to their alibi defense by the imprecision in the dates. In his opening statement, the defense attorney alerted the jury that Butler would be presenting evidence of alibi, but that this alibi might not cover all of the dates encompassed by the testimony.
This is what Judge Smith confirmed for himself when he reviewed the audio record of the defense opening statement. As Judge Smith noted when he issued his ruling, "I don't think [that] Mr. Davenport made a promise he couldn't keep to the jury — because he freely admitted, at the outset, [that] he wasn't entirely sure what dates were going to be at issue."
For these reasons, we conclude that Butler's case is significantly different from the situation presented in Bostic, where the defense theory of the case was directly contradicted by the newly disclosed evidence, and where Bostic's attorneys could only "agonize over how to unring a bell that should never have been rung in the first place".
Aside from the content of the opening statement, Butler's attorneys also argued to Judge Smith that their investigation and presentation of Butler's defense might have been quite different if they had known about the date and time of A.S.'s telephone call to 911. When Davenport explained to Judge Smith why he believed that a continuance was not adequate to cure the problem, and why a mistrial or suppression was required, the defense attorney said:
Defense Attorney: Every question I asked witnesses would have been different. The whole cross-examinations [of the State's witnesses] would most likely have been quite different. . . . [E]very relevant issue would have been different if we had [a] different defense, so I don't think a continuance is going to cure the problem. . . . We may . . . not [have been] using [an alibi] defense [at all], had we known this difference, this variance in the dates that the State is now [proposing]. So . . . that's why a continuance wouldn't be adequate.
But when Judge Smith asked the defense attorney to specify what different strategy he would have pursued, or what additional or different investigation he would have conducted, if he had known the date and time of A.S.'s call to 911, the defense attorney's sole response was that he would have tried to find witnesses to expand Butler's alibi defense so that it covered the earlier date:
Defense Attorney: [T]he main thing that springs to mind is [that] we would have had to have done a thorough investigation of earlier dates and times to see where the defendant was, what witnesses could establish where he was on these earlier dates and times. So looking at, you know, August 7th, 8th, and 9th, or whenever the bottom end of the range they want to amend to, we would have had to find [additional] witnesses — because we were relying on the fact that [Butler] was gone, demonstrably, on an airplane trip this whole time.
In other words, the defense attorney did not back up his assertion that the basic defense strategy would have changed. Instead, the defense attorney told Judge Smith that the basic defense strategy — i.e., an alibi defense — would have remained the same, but that the defense team would have conducted additional investigation to see if they could find alibi witnesses for the earlier dates.
(Indeed, given the evidence in this case, it is difficult to imagine a defense strategy other than the one that Butler's attorneys pursued: a combined claim of alibi and misidentification.)
This was the apparent basis for Judge Smith's decision to reject the defense attorneys' request for a mistrial but to offer the defense attorneys a continuance so that they could further investigate potential alibi evidence for August 8 and 9, 2004. But as we have already explained, when Judge Smith made this offer (late in the afternoon of a trial day), the defense attorneys stated that they wanted to resume Butler's trial the next morning, as scheduled. In other words, Butler's attorneys essentially told Judge Smith that they did not need a continuance to conduct further investigation.
In his brief on appeal, Butler argues that the new information disrupted his entire trial strategy and presentation. In support of this position, Butler points to some of the statements that his attorney made to Judge Smith (the statements we have just quoted) about how the new information required a re-assessment of the fundamental defense strategy in the case.
But as we have just described, when Judge Smith asked the defense attorney to explain his assertion, all the defense attorney said was that the defense team would have to investigate Butler's potential alibi for the two earlier dates — and then, when Judge Smith offered to delay the trial so that the defense attorneys could conduct this investigation, the defense attorneys rejected the offered continuance and announced that they simply wished to proceed with the trial as scheduled.
Under the supreme court's decision in Bostic and this Court's decision in Sivertsen, it is not sufficient for a defendant to make unsupported, general assertions that the disclosure of new information has irremediably undermined their trial strategy or their trial presentation. To warrant a mistrial, the defendant must offer a plausible way in which the defense case could have been prejudiced by the late disclosure. Bostic, 805 P.2d at 348-49; Sivertsen, 963 P.2d at 1072.
Here, Butler's attorney suggested only one specific prejudice: the lack of opportunity to investigate Butler's potential alibi for August 8 and 9, 2004. Judge Smith could reasonably conclude that this prejudice might be cured by a continuance, so he told the defense attorneys to consult with their client and then report back on how much time was needed. But after the attorneys consulted with Butler, they told Judge Smith that no continuance was needed, and that the trial should continue as scheduled.
Given this record, Judge Smith did not abuse his discretion when he concluded that the late disclosure of the time and date of A.S.'s telephone call to 911 did not require a mistrial. For the same reasons, Judge Smith did not abuse his discretion when he concluded that amending the indictment to specifically list August 8th and August 9th as potential dates for the offenses did not prejudice Butler's substantial rights.
Conclusion
The judgement of the superior court is AFFIRMED.