Opinion
Court of Appeals No. A-11472 No. 6352
06-15-2016
RANDY DWAYNE RANDALL, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: David D. Reineke, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
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. Trial Court No. 3AN-12-1082 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, John R. Lohff, Judge. Appearances: David D. Reineke, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, and Allard, Judge. Judge MANNHEIMER.
A jury convicted Randy Dwayne Randall of first-degree vehicle theft, second-degree theft, and driving with a canceled, suspended, or revoked license. Randall raises three claims on appeal: (1) that the trial court should have allowed him to introduce out-of-court statements that he made to the police, (2) that the trial court violated his right to due process by precluding him from presenting an other-suspect defense, and (3) that the trial court should have granted his request for a Thorne instruction — i.e., an instruction telling the jurors that certain missing evidence should be presumed to be favorable to Randall. For the reasons explained here, we conclude that the trial court did not err in its rulings on any of these three issues. Accordingly, we affirm Randall's convictions.
AS 11.46.360(a)(1), AS 11.46.130(a)(1), and AS 28.15.291(a)(1), respectively.
Thorne v. Dept. of Public Safety, 774 P.2d 1326 (Alaska 1989).
Underlying facts
On the morning of January 6, 2012, an Anchorage resident awoke to discover that his Toyota Tacoma truck had been stolen from his driveway sometime during the night. He immediately contacted the Anchorage police to report this vehicle theft.
Approximately four weeks later, in the early morning hours of February 2nd, Anchorage Police Officer Kevin McDonald was driving southbound on Spenard Road when he observed the stolen truck being driven the other way on Spenard Road. McDonald immediately turned around to locate and stop the truck.
Less than a minute later, McDonald located the truck parked at an apartment building. McDonald and a backup officer approached the truck.
Randall was standing on the passenger side of the truck, unloading groceries. The groceries were contained in Carrs Safeway grocery bags. No one else was in the vicinity. The key to the truck was attached by a lanyard to Randall's belt loop.
Officer McDonald checked the inside of the truck to make sure no one was hiding in the vehicle. He noticed that the driver's seat was positioned far forward — consistent with Randall's short stature.
When the officers confronted Randall, he declared that he had not been driving the truck. He told the officers that a man named "Curtis" had been driving. Randall said that he and Curtis had gone to the grocery store as a favor for a woman in the nearby apartment building.
When one of the officers contacted this woman, she confirmed that Randall had been picking up groceries for her, but she said that Randall was the one who had been driving the truck.
The police contacted the owner of the truck, and he came to retrieve it from the parking lot.
The next day, Officer McDonald went to a nearby Carrs Safeway grocery store to review the store's security video. The surveillance video of the inside of the store showed Randall shopping by himself.
Based on this evidence, Randall was charged with first-degree vehicle theft, second-degree theft, and driving with a canceled, suspended, or revoked license. Ajury convicted Randall of all three charges. Randall now appeals his convictions.
AS 11.46.360(a)(1), AS 11.46.130(a)(1), and AS 28.15.291(a)(1), respectively.
The trial court's ruling that Randall could not introduce his own statements to the police as "excited utterances"
At trial, Randall's attorney asked the trial judge to allow him to introduce evidence of Randall's statements to the police in the parking lot — specifically, Randall's assertions that a man named Curtis had been driving the truck, and that Randall himself had only been a passenger.
Randall's attorney conceded that these statements were hearsay, but he argued that the statements fell within the excited utterance exception to the hearsay rule (Alaska Evidence Rule 803(2)). The defense attorney contended that Randall was under the stress of excitement caused by his confrontation with armed police officers who accused him of vehicle theft. The trial judge agreed that most people would consider it an "exciting situation" to be confronted by police officers with their guns drawn. But the judge concluded that Randall had failed to prove that he was under the kind of excitement that would trigger the "excited utterance" exception.
The fact that someone is excited does not necessarily mean that their out-of-court statements qualify for admission under the "excited utterance" exception to the hearsay rule. As our supreme court clarified in State v. Agoney, 608 P.2d 762, 764 (Alaska 1980), the true question is whether the person's out-of-court statement was "spontaneous ... or impulsive" as opposed to "the product of reflection and deliberation". The proponent of the evidence must establish that the speaker's state of excitement was such that the speaker's "normal powers of reflection and conscious deliberation [were] suspended". Ibid. Or, as this Court explained in Sipary v. State, "the ultimate question is whether ... the circumstances surrounding the [speaker's] utterance produced a condition of excitement which temporarily stilled the speaker's capacity for reflection and produced utterances free of conscious fabrication." 91 P.3d 296, 305-06 (Alaska App. 2004).
Quoting Blair v. State, 42 P.3d 1152, 1154 (Alaska App. 2002).
Thus, the admissibility of the out-of-court statements hinges on the speaker's mental state at the time the statements were made. This is a question of historical fact, so we employ the "clearly erroneous" standard of review when we evaluate the trial judge's ruling on this issue. Sipary, 91 P.3d at 306.
Given the record in this case, Randall has failed to establish that the trial judge's ruling on this issue was clearly erroneous.
The trial court's ruling that Randall could not introduce his own statements to the police as evidence that someone else committed the offense
Randall's attorney also advanced a separate argument for admission of Randall's out-of-court statements to the police — i.e., Randall's statements that a man named "Curtis" had been driving the stolen truck, and that he and Curtis had been shopping at the Carrs Safeway grocery. The defense attorney contended that these statements were admissible for the purposes of (1) showing that someone else ("Curtis") might have committed the offenses for which Randall was charged, or at least (2) showing that the police failed to properly investigate the possibility that "Curtis" was the real culprit.
Under our supreme court's decision in Smithart v. State, 988 P.2d 583, 587-88 (Alaska 1999), a defendant may introduce evidence that the crimes charged against the defendant were potentially committed by another person (if the defendant's proposed evidence exceeds the threshold level of relevance described in Smithart). But the defendant's underlying evidence must itself be admissible. As this Court held in Cleveland v. State, 91 P.3d 965, 975 (Alaska App. 2004), the supreme court's decision in Smithart does not give defendants the right to introduce testimony or physical evidence that fails to qualify for admission under the rules of evidence.
In Randall's case, the defense offered only Randall's statements to the police in the parking lot to support the theory that "Curtis" was the real perpetrator of the crimes charged against Randall. Offered to prove that someone besides Randall might have committed these crimes, Randall's out-of-court statements were clearly barred by the hearsay rule: the statements were being offered as evidence that what Randall told the officers was true.
Seekingto avoid this result, Randall's attorney argued in the alternative that Randall's out-of-court statements were admissible to attack the adequacy of the police investigation — i.e., to show that the police were informed of the possibility of another suspect, and that they negligently failed to pursue this lead.
Out-of-court statements made to a police officer will sometimes tend to show the officer's state of mind, or will sometimes tend to show why the officer did or did not undertake particular investigative actions. But before a trial judge allows either the State or the defense to introduce out-of-court statements to prove "the course of the investigation", the judge must be convinced that the course of the investigation is itself truly relevant.
More specifically, the judge must ask (1) whether it is truly important for the jurors to understand the reasons why the police made their investigative choices or decisions, and (2) whether the probative value of explaining those reasons outweighs the risk that the jurors will improperly use the out-of-court statements for hearsay purposes — i.e., the risk that the jurors will treat the out-of-court statements as substantive evidence that the matters asserted in those statements are actually true.
Here, Randall's attorney offered a plausible non-hearsay rationale for introducingRandall's out-of-court statement about "Curtis": to support a defense theory that the police had inadequately investigated Randall's case. The defense attorney argued that if the jurors were aware that Randall told the police that someone else ("Curtis") had committed the crime, and if the police unreasonably failed to pursue this information, this might lead the jurors to have a reasonable doubt about Randall's guilt.
But the evidence admitted at Randall's trial showed that the police did investigate the possibility that someone else had driven the vehicle. When the police interviewed the woman who asked Randall to go to the grocery for her, she told them that Randall was the one who was driving the truck. And when the police viewed the surveillance video from the grocery store, it showed Randall shopping alone. Thus, the trial evidence already suggested why the police did not undertake further efforts to locate "Curtis".
Moreover, Randall's attorney did not claim that Randall gave the police any details that would have helped them identify or locate "Curtis", or that reasonably would have caused the police to pursue a different investigative route from the one they took.
We acknowledge that the trial judge might properly have allowed the defense attorney to pursue this proposed inquiry, and then instructed the jurors on the proper non-hearsay use of this evidence — i.e., that Randall's statements about "Curtis" did not constitute proof that Curtis existed, or that Curtis (if he existed) had anything to do with this case. But we conclude that the trial judge did not abuse his discretion by handling this issue the way he did.
Randall was not entitled to a Thorne instruction
Randall argues that the trial judge should have given a Thorne instruction concerning certain evidence that the police did not collect. He specifically contends that the police should have preserved a copy of the Carrs Safeway surveillance video (which showed Randall shopping at the store), and that the police should have retained "numerous items found in the [stolen] pickup", rather than allowing the owner of the truck to take these items with him when he reclaimed the truck.
The State has a duty to preserve potentially exculpatory evidence gathered during a criminal investigation. But Alaska law draws a distinction between (1) physical evidence that is lost or destroyed after it is taken into police custody versus (2) physical evidence that is destroyed or becomes unavailable following a police failure to collect it. See Selig v. State, 286 P.3d 767, 772 (Alaska App. 2012), where we noted the "fundamental" difference between instances where the police destroy or lose physical evidence in their possession and instances where the police fail to collect the evidence.
March v. State, 859 P.2d 714, 716 (Alaska App. 1993) (original citation omitted).
Randall acknowledges this legal distinction, but he asserts that the police "had possession" of the grocery store surveillance video. The record fails to support this contention. There is evidence that Officer McDonald went to the store to view the video, but there is no evidence that he took possession of it.
Indeed, when this point was argued in the trial court, Randall's attorney conceded that the surveillance video was retained by the store, and that Randall's defense team had the same access to it as the police — but they made no effort to obtain it.
Accordingly, the trial judge properly denied Randall's request for a Thorne instruction concerning this surveillance video.
We now turn to Randall's request for a Thorne instruction regarding certain items that were left in the stolen truck. At Randall's trial, the owner of the truck testified that, after he reclaimed the truck, he found a number of personal items in the truck that were not his, and he turned these items over to the police. These items included some broken CDs, a portable stereo, a backpack, some women's clothes, winter mittens, a jacket, and some trash bags.
The record shows that, while Randall's case was pending, his defense team viewed a number of these items. Indeed, when Randall's attorney litigated his Thorne instruction request, he expressly withdrew his request for a Thorne instruction regarding the items that had been left in the truck. Randall is therefore precluded from pursuing this claim on appeal.
In his reply brief, Randall argues for the first time that the police should have retained the entire truck instead of allowing the owner to retrieve it. Arguments presented for the first time in a reply brief are waived.
See Barnett v. Barnett, 238 P.3d 594, 603 (Alaska 2010). --------
For these reasons, we affirm the trial judge's refusal to give Randall's proposed Thorne instruction.
Conclusion
The judgement of the superior court is AFFIRMED.