Opinion
Court of Appeals No. A-9322.
March 12, 2008.
Appeal from the Superior Court, Third Judicial District, Dillingham, Fred Torrisi, Judge, Trial Court No. 3DI-03-557 CR.
Herman G. Walker Jr., Limón Walker, Anchorage, for the Appellant. Diane L. Wendlandt, 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
In 1999, Albert A. Kvamme's twenty-two-year-old daughter, M.K., accused him of sexually assaulting her. Investigators found evidence of sperm on M.K., but after DNA testing of the sperm was inconclusive, the investigation fell dormant. Police reports and audio tapes of interviews conducted during the investigation were lost or recycled.
In 2003, the State reopened the case, and improved DNA testing showed that the DNA in the sperm was statistically likely to be Kvamme's DNA. He was charged and convicted of first-degree sexual assault. Kvamme appeals, claiming that the superior court should have dismissed the indictment because of pre-accusation delay. He also argues that the court should have dismissed the case because evidence the State collected was lost while the case languished. For the reasons stated below, we affirm the judgment of the superior court.
AS 11.41.410(a)(1).
Background facts and proceedings
Early in the morning of October 11, 1999, twenty-two-year-old M.K. went to the Togiak police station and spoke with the officer on duty, Sean Montgomery. Montgomery recorded the conversation during which M.K. mentioned that Kvamme kicked her. Officer Roger Wassillie then arrived at the station and also recorded a conversation with M.K. At that point, the officers thought they were investigating only an assault, not a sexual assault.
Officer Sean Carlos took over the investigation and recorded another conversation with M.K. This time, M.K. said that Kvamme had sexual intercourse with her during the assault. Officer Carlos began investigating a possible sexual assault.
M.K. was examined by Jacqueline Tindall, a Sexual Assault Response Team (SART) nurse at Kanakanak Hospital in Dillingham. During the examination, M.K. told Tindall that her father had kicked her "in the leg and in her privates with his shoe or boot on" and then "penetrated her vaginally three or four times." Tindall noticed that M.K. was bleeding from her vagina, and Tindall found a laceration at the base of M.K.'s vagina as well as swelling and redness in her vaginal area. Tindall also found bruises on M.K.'s leg and groin, and swelling around her right ear. Tindall took swabs of M.K.'s inguinal region — the area outside the vagina where the leg meets the groin — and sent the swabs to the state crime lab for analysis.
Officer Carlos obtained a search warrant to perform a SART examination of Kvamme and to search Kvamme's house; the examination and the search were recorded. Kvamme's son, Albert Kvamme III, was interviewed on tape by Officer Wassillie, but Officer Wassillie later could not recall the interview.
Days later, Alaska State Trooper Michael Brandenburger interviewed M.K. During the interview, M.K. accused several members of the Togiak community of assaulting and raping her, but she did not accuse her father of any wrongdoing. At a follow-up SART examination with Nurse Tindall, M.K. told Tindall that she was the victim of several assaults — events that Tindall thought were "impossible" and "strange."
Lab technicians determined that a swab taken from M.K. contained sperm, and they performed DNA testing on the sample. The testing — which analyzed six genetic markers — indicated that Kvamme could not be excluded as the source of the sperm. However, the statistical analysis showed that the probability that someone else in the Yupik population, other than Kvamme, could be the source of the sperm was one in 1,800.
The State did not proceed to indictment. The State would later explain that with a "non-specific DNA test result," the viability of the prosecution rested on the credibility of M.K., who could be impeached with her statements in several interviews. During the intervening years the following items were lost: the tapes of M.K.'s initial interviews with the Togiak police, the tape of Trooper Brandenburger's interview with M.K., the tape of the search of Kvamme's home and his examination, and the tape of the interview with Albert Kvamme III. Police reports were also lost. Tapes of M.K.'s two SART examinations and the transcript of her interview with Trooper Brandenburger remained available.
In June 2003, a social worker contacted the local assistant district attorney to determine the status of the case. The assistant district attorney requested that the semen sample be retested using the available (and more advanced) DNA-testing technology. This testing analyzed fifteen genetic markers (rather than six). The results of this test were much more conclusive than the initial testing; according to the statistical analysis, the probability that the semen found on M.K. came from someone else within the Yupik population, other than Kvamme, was one in 51,730 quintillion.
The grand jury charged Kvamme with one count of first-degree sexual assault. Kvamme moved to dismiss the indictment, arguing that the delay between the alleged assault and the indictment violated his right to due process. The State opposed the motion, arguing that it had a valid reason for the delay — that there was insufficient evidence to support a successful prosecution in 2000 — and that Kvamme had not suffered actual prejudice as a result. Superior Court Judge Fred Torrisi denied the motion without comment, apparently accepting the State's argument. Kvamme filed another motion to dismiss, this time arguing that the State had failed to preserve the tapes and police reports. Judge Torrisi found that the loss of evidence was negligent but not intentional. He concluded that the following jury instruction was the appropriate sanction:
AS 11.41.410(a)(1).
The State has failed to preserve the following evidence:
Taped interviews of M.K. with Officer Sean Carlos
Taped interviews of M.K. with Officer Roger Wassillie
Taped interviews of M.K. with Officer Sean Montgomery
Taped interview of Albert Kvamme III
Because the State has failed to preserve this evidence it shall be presumed that statements were made that were favorable to the defense.
At trial, M.K. testified that she had sex with Kvamme. When asked directly by the prosecutor if she wanted to have sex, M.K. answered "I don't know. I was awfully afraid at the time." During cross-examination, Kvamme impeached M.K. with a tape-recorded interview that she provided to the defense in which she stated that nothing happened with her father. Kvamme also impeached her with other evidence. Nonetheless, the jury found Kvamme guilty of first-degree sexual assault. Judge Torrisi sentenced Kvamme to the presumptive term, 8 years' imprisonment. Kvamme appeals.
See former AS 12.55.125(i)(1)(A).
Discussion Kvamme's motion to dismiss based on pre-indictment delay
Kvamme argues that Judge Torrisi wrongly denied his motion to dismiss the indictment based on pre-accusation delay. We review the superior court's decision to deny the motion to dismiss for an abuse of discretion.
State v. Gonzales, 156 P.3d 407, 411 (Alaska 2007); Sheldon v. State, 796 P.2d 831, 834 (Alaska App. 1990).
A due process challenge under the Alaska Constitution based on a pre-indictment delay claim is analyzed under a two-part test that aims to "protect the accused from improper or unreasonable conduct by the government in the bringing of a criminal charge." The two parts a court must examine are "(1) the reasonableness of the delay, and (2) the resulting harm to the accused." Kvamme must show that the delay was unreasonable and that he suffered actual prejudice from the delay. "[T]he State has the burden, once the issue is raised, to come forward with reasons for the delay[;] when the reasons are advanced, the defendant must show that they do not justify the delay."
State v. Mouser, 806 P.2d 330, 336 (Alaska App. 1991).
Id.
Id.
Id. (quoting York v. State, 757 P.2d 68, 70-71 (Alaska App. 1988) (quoting Alexander v. State, 611 P.2d 469, 474 (Alaska 1980)).
The State contends that it "did not prosecute this case in 1999 for one simple reason: the prosecutor correctly believed that there was insufficient evidence to support a successful prosecution." The State argues that its case against Kvamme rested on the accuracy of the DNA testing because the sole witness to the attack, M.K., had identified several individuals in addition to Kvamme as assailants, and the State contends that she "was suffering from significant mental problems." After reviewing the results of the 2000 DNA testing, the prosecutor concluded that he did not have sufficient evidence to convict. However, after the more accurate testing in 2003 provided convincing evidence of Kvamme's guilt, the prosecutor moved forward with the case.
Once the State offered a justification for the delay, the burden shifted to Kvamme to show that the delay was unreasonable. Kvamme concedes that prosecutors did not make "a deliberate decision to wait until technology got better before they prosecuted," but instead dropped the case merely because they thought the "case [was] a mess." Kvamme contends that "[t]he decision not to prosecute is not a reasonable excuse" for the delay in his case.
See Gonzales, 156 P.3d at 412.
But the Alaska Supreme Court has recognized that it is reasonable for the State to delay filing charges if a prosecutor reasonably concludes that the State cannot establish a suspect's guilt beyond a reasonable doubt. Though Judge Torrisi did not explain his ruling, we infer that he found that the State had a reasonable explanation for the delay in Kvamme's case.
See Tarnef v. State, 512 P.2d 923, 931 (Alaska 1973).
The State explained the circumstances that led to the delay in the case. The prosecutor thought the initial DNA testing was insufficiently convincing — considering the likely exculpatory testimony from M.K. and other evidence impeaching her accusation — to indict and convict Kvamme. Judge Torrisi could reasonably conclude that this provided the State with a reasonable explanation for the delay. From our review of the record, we conclude that Judge Torrisi did not abuse his discretion when he rejected Kvamme's pre-indictment delay claim.
The State asks us to explicitly adopt the prevailing standard applied in most federal jurisdictions examining pre-indictment delay claims — that the State is presumed to act reasonably in cases of delay unless the defendant can establish that the State acted in bad faith. We need not expressly adopt this standard because Kvamme's claim fails under the current Alaska standard.
See United States v. Gouveia, 467 U.S. 180, 192, 104 S. Ct. 2292, 2299, 81 L. Ed. 2d 146 (1984); United States v. Lovasco, 431 U.S. 783, 795-96 n. 17, 97 S. Ct. 2044, 2051-52 n. 17, 52 L. Ed. 2d 752 (1977); United States v. Crouch, 84 F.3d 1497, 1511-12 (5th Cir. 1996).
Because the State provided a reasonable explanation for the delay, Kvamme cannot establish both prongs of the pre-indictment delay test. Nevertheless, we address the test's second prong — Kvamme's claim that he suffered actual prejudice as a result of the delay. Again, Judge Torrisi did not explain his ruling, but we infer that he found that Kvamme suffered no actual prejudice.
"Actual prejudice" is a "particularized showing that the unexcused delay was likely to have a specific and substantial adverse impact on the outcome of the case." We have held that, "[a]t the very least, [the accused] must show that but for the delay, he would have been able to present favorable evidence. Mere speculation about the loss of favorable evidence is insufficient." Kvamme claims the delay caused him to suffer prejudice because his defense was hindered by the loss of police reports and the tapes of the interviews with M.K., Albert Kvamme III, and Kvamme himself.
Mouser, 806 P.2d at 337.
Id. at 337-38 (quoting Wilson v. State, 756 P.2d 307, 311 (Alaska App. 1988)).
Kvamme contends that "[w]ithout M.K.'s original two[-]hour interview there is no way to compare her statements to find and explore any inconsistencies in her statements." But Kvamme cannot explain exactly how the recovery of the interview tapes would have helped his defense. As the State points out, M.K. had little or no credibility when the trial began because she had told Trooper Brandenburger that numerous other individuals had assaulted her and had retracted her allegations of sexual assault against Kvamme. At trial, Kvamme used M.K.'s retraction and the transcripts of her interview with Trooper Brandenburger to impeach her. Moreover, M.K. testified at trial, so Kvamme had the opportunity to confront her and impeach her testimony directly. Kvamme has not shown that the loss of the tapes resulted in actual prejudice.
Kvamme also does not show how the lost recordings of interviews given by himself and by Albert Kvamme III resulted in actual prejudice. Accordingly, we conclude that Judge Torrisi's denial of Kvamme's motion to dismiss the indictment based on pre-indictment delay was not an abuse of discretion.
Kvamme's motion to dismiss based on the failure to preserve evidence
Kvamme next argues that the State violated his right to due process when it failed to preserve evidence. Judge Torrisi found that the loss of evidence was not intentional, but that the State was negligent in its duty to preserve evidence. He concluded that the following jury instruction was the appropriate sanction: "Because the State has failed to preserve this evidence it shall be presumed that statements were made that were favorable to the defense." We review the court's decision on what sanction to impose for abuse of discretion.
See Putnam v. S tate, 6 29 P.2d 35, 43-44 (A laska 1981), rejected on other grounds by Stephan v. State, 711 P.2d 1156, 1159, 1163 (Alaska 1985).
Kvamme argues that the proper sanction to impose in this case was dismissal of the case. In its brief, the State does not dispute that it failed in its duty to preserve evidence, but it contends that the question is whether dismissal was the proper remedy.
We have recognized that the sanction of dismissing a case for failing to preserve evidence is "a severe sanction which is generally not justified unless there has been deliberate action by the government or significant prejudice to the defendant." But dismissal is only one possible sanction when evidence is lost. To determine the proper remedy, "the court must consider the degree of culpability on the part of the state, the importance of the lost evidence, the prejudice suffered by the defendant, and the evidence of guilt adduced at the hearing or trial."
Fletcher v. Anchorage, 650 P.2d 417, 418 (Alaska App. 1982) (citing United States v. Quiovers, 539 F.2d 744 (D.C. Cir. 1976)).
State v. Ward, 17 P.3d 87, 90 (Alaska App. 2001) (citing Thorne v. Dep't of Pub. Safety, 774 P.2d 1326, 1331 (Alaska 1989) and Putnam, 629 P.2d at 44)).
Here, Judge Torrisi found that the State did not act in bad faith, but it was negligent in not preserving the evidence. Kvamme does not dispute this finding.
We have held that when the government loses evidence through negligence, "a court should not dismiss the charges against the defendant unless it affirmatively appears that the lost evidence would have created a reasonable doubt concerning the defendant's guilt." For several reasons, we conclude that the lost evidence would not have created a reasonable doubt as to Kvamme's guilt.
State v. Norman, 875 P.2d 775, 777 (Alaska App. 1994) (citing Abdulbaqui v. State, 728 P.2d 1211, 1218 (Alaska App. 1986)).
First, as discussed above, Kvamme still had the opportunity to confront M.K. and test her credibility even without the tapes of her first interviews. He impeached her with the tape recording she provided the defense and with the interview she provided Trooper Brandenburger. The court also gave a jury instruction on the lost evidence that was favorable to Kvamme.
Second, it appears that the tapes of Kvamme's interviews with police would not have been particularly helpful. Kvamme might have wanted to use the tapes to demonstrate that he had denied M.K.'s allegations from the start of the investigation, but Officer Carlos testified at an evidentiary hearing that Kvamme denied M.K.'s allegations during the interviews, so the fact that Kvamme denied the allegations was not in dispute.
Third, the tape of the interview with Albert Kvamme III would not have been particularly helpful to Kvamme. Officer Wassillie did not remember interviewing Albert. Albert's testimony at trial was the only evidence that the interview took place. He testified that he told Officer Wassillie that nothing happened the night of the charged sexual assault. Kvamme has not shown that he was harmed by the loss of this tape, and the substance of Albert's interview with the police was not an important piece of Kvamme's defense.
Judge Torrisi concluded that a jury instruction was the proper remedy, and he instructed the jury to "presume that statements were made [during the missing interviews] that were favorable to the defense." The court's instruction is in accord with the Alaska Supreme Court's holding that a proper sanction for lost evidence is to presume that the evidence would have been favorable to the defendant. Therefore, we conclude that Judge Torrisi did not abuse his discretion when his choice of remedy for the State's loss of evidence was the jury instruction that was favorable to Kvamme.
Thorne, 774 P.2d at 1331 (citing United States v. Bundy, 472 F.2d 1266, 1268-69 (D.C. Cir. 1972) (Levanthal, J., concurring)). See also Ward, 17 P.3d at 90.
Conclusion
The judgment of the superior court is AFFIRMED.