Opinion
Court of Appeals No. A-9573.
October 29, 2008.
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael L. Wolverton, Judge, Trial Court No. 3AN-04-8979 Cr.
Kathleen Murphy, Assistant Public Defender, and Q uinlan Steiner, Public Defender, Anchorage, for the Appellant.
Terisia Chleborad, 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
Sabil Mumin Mujahid argues that the superior court erred when it did not dismiss his case after the prosecution provided late discovery during trial. We conclude that Mujahid did not show that he was prejudiced by the late disclosure and affirm the superior court. Background facts and proceedings
At about five o'clock in the morning on September 12, 2004, Officer Troy J. Clark of the Anchorage Police Department was walking behind Mujahid near the Big Timber Motel in the Mountain View neighborhood. Clark saw Mujahid drop a baggie with a knot tied in it onto the ground. A second officer, Officer Swaran Singh, picked the baggie up off of the ground while Clark handcuffed Mujahid. A field test of the substance in the baggie was positive for cocaine. The field test was confirmed later by a lab test. Based on the lab test results and Clark's testimony, the grand jury indicted Mujahid on one count of fourth-degree misconduct involving a controlled substance.
AS 11.71.040(a)(3)(A) (possession of cocaine).
Mujahid chose to represent himself at trial. In his opening statement, Mujahid asserted that the evidence would show that he never possessed the baggie. He claimed that he would prove this by demonstrating that there were no fingerprints or DNA linking him to the baggie.
During the State's case, Officer Clark testified that he did not send the baggie for fingerprint testing because he watched Mujahid drop the baggie on the ground and because every time he submitted a plastic baggie for fingerprinting, no usable fingerp rints were found. Jane Booth, a criminalist and supervisor of the drug section at the state crime lab, testified that the substance in the baggie was crack cocaine. On cross examination, she testified that she "believe[d] there was some fingerprinting analysis done [on the baggie]," but did not know the results. Mujahid immediately objected that the State had withheld this fingerprint evidence. The prosecutor, however, insisted that he never ordered a fingerprint analysis. The State rested and the jury was excused.
Mujahid moved to dismiss his case, arguing that the State withheld evidence. Superior Court Judge Michael L. Wolverton asked that the fingerprint test results be faxed to the court. He ruled that the results would not be admitted unless the results were exculpatory. He found that if Mujahid's fingerprints were not found on the baggie, then the results would be "more exculpatory than inculpatory."
During a short recess, the court received a copy of the fingerprint report. The report indicated that no ridge detail suitable for comparison was detected on the baggie. The prosecutor learned that his paralegal had sent a form to the lab that had a box checked requesting fingerprint testing. He explained to the court that a copy of the request form was in his paperwork, but he would normally not review that paperwork "as a matter of course." And since he did not order the fingerprinting, he had no reason to expect that it had been requested. The prosecutor further explained that the day before grand jury, the lab faxed a copy of the drug testing results, and he proceeded to grand jury with only that evidence. He did not see the fingerprint test results. The results were generated eight days after indictment.
Based on this information, Judge Wolverton found that the State did not intentionally withhold evidence. He decided to excuse the jury until the following Monday morning. He announced that the remainder of that day (Thursday) and the next would be available to sort out "what we do from here." Judge Wolverton provided a "preliminary estimation" of what would be done: Mujahid would have the opportunity to examine any of the State's witnesses and "anybody else [he] think[s] . . . is relevant on the issue . . . that [the] prints were in fact submitted." But he told Mujahid that he was unlikely to dismiss the case.
Mujahid objected. He contended that it would be difficult for him to prepare his examination of the additional witnesses and renewed his motion to dismiss.
Once again, Judge Wolverton replied that he was unlikely to dismiss the case. He told Mujahid that he could move for a mistrial, but explained that Mujahid would "need to decide whether that would be beneficial to y ou even if you w on that or whether it would be more beneficial to proceed in front of the jury who's going to hear this evidence. . . . [T]hat's what you need to think about." Mujahid insisted that he wished to preserve his motion to dismiss.
A few hours later, Judge Wolverton asked M ujahid whether he had decided what he "may want to request the court to do." Mujahid stated that he was choosing to proceed with the trial. Judge Wolverton explained to Mujahid that any person with knowledge about the fingerprint testing in his case would be brought in on the next day (Friday) for questioning and that Mujahid would be able to call those persons as witnesses for the jury on the following Monday. Judge Wolverton also advised Mujahid that, after the court had heard from these witnesses, "[W]e'll talk about what we do from there."
The next day, the prosecution produced the pertinent individuals in court. Mujahid called one of the individuals — Dale Bivins, a latent-fingerprint examiner with the crime lab — to the stand for questioning.
The following Monday, Mujahid called Bivins and Officer Clark to testify in his case. Mujahid also presented himself as a witness and rested. Mujahid moved for a judgment of acquittal, arguing that the State's case was wholly circumstantial. Judge Wolverton denied the motion, pointing out that Clark testified that he saw Mujahid drop the baggie.
In rebuttal, the prosecutor called the paralegal from his office and clerical personnel from both the crime lab and the evidence department. These witnesses presented testimony addressing the genesis and processing of the fingerprint request. There was no further discussion of Mujahid's motion to dismiss.
In his closing argument, Mujahid emphasized that there was no physical evidence linking him to the baggie of crack cocaine. He pointed out that while the State had run fingerprint tests, it had failed to send the baggie for DNA testing. He contended that the State had withheld the fingerprint evidence, but he stated that, "[I]t makes no difference if [the criminalist] didn't get fingerprints off [of the baggie] because it doesn't . . . attach to me. You have to attach the evidence to me. You need more than this man's word." The jury found Mujahid guilty.
Discussion
The State argues that Mujahid did not preserve his claim that the superior court wrongly denied his motion to dismiss because Judge Wolverton did not explicitly deny the motion. The State contends that Mujahid was obliged to press the court for a ruling on the motion to preserve the issue for appeal.
See Taylor v. Johnston, 985 P.2d 460, 467 (Alaska 1999); Russell v. State, 934 P.2d 1335, 1340-41 (Alaska A pp. 1997); M arino v. State, 934 P.2d 1321, 1327 (Alaska App. 1997).
Although the state's argument is correct in typical circumstances, in this case Mujahid was representing himself. Even though a review of the transcript shows that Mujahid understood many of the intricacies of trial procedure, case law suggests that when it is obvious what a pro se litigant is trying to accomplish, the judge should inform the litigant of the proper procedure. Mujahid raised his motion to dismiss several times before the court, and it is possible that Mujahid misunderstood Judge Wolverton to have denied this motion. Therefore, we will address the merits of Mujahid's claim.
See Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987) (noting that pro se pleadings are held to lesser standards than those prepared by individuals with formal legal training and that "the trial judge should inform a pro se litigant of the proper procedure for the action he or she is obviously attempting to accomplish"); Genaro v. Anchorage, 76 P.3d 844, 846-47 (Alaska 2003) ("Although we recognize that it is often difficult for a trial court to find the correct balance between the need to remain neutral and impartial and the need to inform pro se litigants of the proper procedures for their attempted actions, we conclude that in this instance it was an abuse of discretion not to inform Genaro `of the proper procedure for the action . . . she [was] obviously attempting to accomplish,' namely, using a Rule 36(b) motion to preclude summary judgment." (quoting Breck, 745 P.2d at 75)); Casciola v. F.S. Air Service, Inc., 120 P.3d 1059, 1062-63 (Alaska 2005) ("We apply a more lenient standard to pro se litigants. To avoid waiver, a pro se litigant's briefing must allow his or her opponent and this court to discern the pro se's legal argument." (internal citation omitted)).
Mujahid argues that the facts of his case warranted a dismissal under Alaska Criminal Rule 43(c). He compares his case to S tate v. Echols — a case in w hich this cou rt upheld the trial court's dismissal of two counts of an indictment against the defendant. But to the extent that Echols has continuing vitality, we recognized in Blair v. State that Echols "applies only to a narrow set of circumstances: instances w here the State's refusal to grant immunity to a defense w itness undermines the fundamental fairness of the trial." There is no immunity issue in this case.
793 P.2d 1066, 1071-72 (Alaska App. 1990).
42 P.3d 1152 (Alaska App. 2002).
Id. at 1155.
The State concedes that its failure to disclose the fingerprint evidence in this case — a failure that Judge Wolverton found to be unintentional — constitutes a violation of Alaska Criminal Rule 16(b)(1)(B). Mujahid argues that dismissal is necessary because the State, in general, continues to violate Rule 16. H is argument boils down to an assertion that the very nature of a discovery violation warrants a dismissal.
See Bostic v. State, 805 P.2d 344, 347-48 (Alaska 1991) (holding that a violation of Criminal Rule 16(b)(1)(i) is presumptively prejudicial to the defendant even if the violation is due to negligence).
In D es Jardins v. State, the A laska Supreme Cou rt held that the appropriate remedy for a defendant prejudiced by a prosecutor's Rule 16 violation is normally a continuance to provide the defendant an opportunity to investigate the new information and adjust his or her case accordingly.
551 P.2d 181 (Alaska 1976).
Id. at 187; see also Bostic, 805 P.2d at 347-48.
In Bostic v. State, the court noted that a continuance is "ordinarily the appropriate remedy for a discovery violation," but it held that a mistrial may be warranted when a mid-trial discovery violation undermines the theory of the case to which the non-offender has committed himself. Under such circumstances, a continuance offers the non-offender "only more time to agonize over how to unring a bell that should never have been rung in the first place." In contrast, a mistrial permits the defendant to "restructure his defense in light of the sudden revelation of information which he was entitled to have all along."
Bostic, 805 P.2d at 348.
Id. at 349.
Id. at 349.
The co urt also held that the mid-trial d iscovery violation w as presu mptively prejudicial. The court ruled that "[t]he burden rests on the state to show that the defendant has not been prejudiced in the manner he specifically claims." But Bostic does not suggest that dismissal is an appropriate sanction for a discovery violation. Instead, if a defendant articulates a plausible way in which his case is prejudiced, and the prosecution fails to rebut that claim, Bostic provides that the defendant is entitled to a mistrial, rather than merely a continuance.
Id. at 349.
Id. at 349.
Mujahid elected to proceed with trial instead of requesting a mistrial and has not made a convincing claim that he was prejudiced by the discovery violation.
Indeed, the fingerprint testing supported Mujahid's theory of the case — the State had no physical evidence linking him to the drugs and the state's failure to disclose the evidence before trial supported Mujahid's claim that the police and prosecution handled his case in a slipshod manner.
We therefore conclude that Mujahid was not entitled to a dismissal of his case because of the mid-trial discovery violation.
Conclusion
The judgment of the superior court is AFFIRMED.