Opinion
Court of Appeals No. A-10781 Trial Court No. 3AN-08-10431 CR No. 5885
09-26-2012
KENNETH D. SMITH, Appellant, v. STATE OF ALASKA, 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 precedent for any proposition of law.
MEMORANDUM OPINION
AND JUDGMENT
Appeal from the Superior Court, Third Judicial District, Eric Aarseth and Peter Ashman, Judges.
Appearances: Dave Reineke, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Terisia Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Richard Svobodny, Acting Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
COATS, Chief Judge.
In February of 2010, an Anchorage jury convicted Kenneth D. Smith of burglary in the first degree, burglary in the second degree, assault in the second degree, assault in the fourth degree, disorderly conduct, and making a false report. The charges arose out of an incident on September 16, 2008, when Smith burglarized a shed and residence which belonged to Michael Hastings, who returned home while Smith was in the process of entering his residence. The men struggled until Hastings, with the help of two other men, was able to subdue Smith. When the police arrived, Smith identified himself by giving a false name.
Smith appeals, arguing that the superior court committed two errors. His first contention is based upon a recorded interview that Anchorage Police Officer Angelina Fraize conducted with Hastings shortly after the incident. When Smith moved for production of the recording, the police were unable to produce it. Smith moved for sanctions. Superior Court Judge Eric Aarseth denied the motion. Smith argues this was error. But we conclude that the record establishes that Smith was not prejudiced by the loss of the recording and that therefore Judge Aarseth did not err in refusing to impose sanctions.
Smith's trial was conducted by Superior Court Judge pro tem Peter J. Ashman. During jury deliberations, the jury informed the court that they were deadlocked. Judge Ashman brought the jurors into the courtroom one at a time to discuss whether further deliberations in the case could be productive. After the court had questioned two jurors, Smith's counsel pointed out that Smith, who was in the courtroom sitting at counsel's table, was in handcuffs. Smith's attorney told Judge Ashman that she had told Smith to keep the handcuffs hidden under the table. On appeal, Smith argues that Judge Ashman erred in having Smith appear in handcuffs in the presence of the jury. But we conclude that the record shows that Smith's attorney took steps to ensure that the jurors would not see that Smith was in handcuffs, that she so informed Judge Ashman, and that she did not ask him to take any other action. We conclude that Judge Ashman did not commit any error.
Factual and procedural background
On September 16, 2008, at 2:10 PM, Anchorage Police Officer Angelina Fraize was dispatched in response to a report that a man had been apprehended breaking into a residence in Eagle River. When she arrived at the scene, she saw two men holding Kenneth Smith on the ground. Officer Fraize took Smith into custody. She then interviewed the homeowner, Michael Hastings, and recorded this interview. Officer Fraize took Smith to the police station and at 3:40 PM wrote her report about the incident.
On October 13, 2008, Hastings testified before the grand jury that, on the afternoon of September 16, he returned to his residence early to meet some men who were delivering windows. He saw a car parked in his driveway with the engine running. No one was in the car. Hastings walked inside and went to the rear of his house. He saw Smith jumping into the house through a window in the solarium.
Hastings testified that Smith saw him, exclaimed, "Oh, shit," and jumped back out of the window and onto the ground outside the house. Smith, who had a pry bar and a cat's paw (a nail pulling tool) in his hands, dropped the pry bar, ran around the house, and toward his car. Hastings ran around the other side of the house toward Smith's car, picking up a rake as he ran.
Smith raised the cat's paw and ran toward Hastings. Hastings thought Smith was going to strike him with the cat's paw. He hit Smith in the knee with a rake and the two men wound up on the ground, wrestling each other. During the struggle, Smith bit Hastings's arm and struck Hastings two or three times on the top of the head with the cat's paw.
As Smith and Hastings were wrestling, two men arrived to deliver the windows. The men helped Hastings subdue Smith until the police arrived. Then Officer Fraize arrived, arrested Smith, and interviewed Hastings.
The grand jury indicted Smith for burglary in the second degree for breaking into Hastings's shed, burglary in the first degree for breaking into Hastings's house, assault in the third degree for running at Hastings with the cat's paw and placing Hastings in fear of imminent serious physical injury, and assault in the second degree for striking him with the cat's paw. The State also charged Smith with assault in the fourth degree for biting Hastings, and with providing false information for lying about his name.
Prior to trial, Smith discovered that the State had lost the recording of the interview with Hastings that Officer Fraize had conducted shortly after the incident. He moved to dismiss the indictment in light of the State's failure to preserve this evidence, or, in the alternative, to impose other sanctions.
Superior Court Judge Eric Aarseth conducted an evidentiary hearing on Smith's motion. Officer Fraize testified at the evidentiary hearing. She stated that her written report indicated that she recorded the interview and that therefore she had probably recorded it. She concluded that she had probably accidentally failed to upload her interview with Hastings into the police department computer system when she uploaded her other recorded interviews from her digital recorder. After uploading the recordings, she deleted all of the interviews from the recorder, including her interview with Hastings. Officer Fraize attributed her error to the fact that she uploaded recordings only once a week. She testified that she now uploads all of her recorded interviews to the department computer system at the end of every shift so that this error would not repeat itself. Officer Fraize testified that she wrote her report at 3:40 PM, shortly after the incident. She stated that when she writes a report, she tries to include all of the information she thinks is relevant to the facts of the case.
At the close of the evidentiary hearing, Judge Aarseth denied Smith's motion to impose sanctions. Judge Aarseth found that, in all probability, Fraize had recorded her interview with Hastings. He found that the loss of the recording was an inadvertent mistake that did not rise to a level where he could find that she had acted negligently. He found that in her police report, prepared close in time to the incident, Fraize had accurately summarized the statements that Hastings made at the scene. Furthermore, Smith had access to the recording of Hastings's testimony at the grand jury. Judge Aarseth concluded that Smith had not been prejudiced by the loss of the recording of Fraize's interview with Hastings.
At trial, Smith conceded that he lied to the police about his identity. Smith admitted kicking open the door to Hastings's shed and to prying open the window of Hastings's house. But he denied entering either building. He admitted running toward Hastings with the cat's paw, hitting Hastings with the cat's paw, and biting him, but he argued that he had acted in self-defense when, while he was trying to flee the scene, Hastings blocked his path to his car, hit him with the rake, and placed him in a choke hold.
Following deliberations, the jury convicted Smith of burglary in the second degree, burglary in the first degree, assault in the second degree, assault in the fourth degree, disorderly conduct, and providing false information.
We affirm Judge Aarseth's decision declining to impose sanctions for the failure to preserve evidence
It is undisputed that, once Officer Fraize recorded her interview with Hastings, the State had a duty to preserve the recording and to provide it to Smith in discovery. In determining what, if any, sanctions are required when the State violates its duty to preserve evidence, a court is to examine four factors: (1) whether the State acted in good faith or bad faith, (2) the degree of the State's culpability in the loss of the evidence, (3) the importance of the evidence that was lost, and (4) the likelihood that Smith suffered prejudice from the loss of the evidence.
Thorne v. Dep't. of Pub. Safety, 774 P.2d 1326, 1330-31 (Alaska 1989); State v. Contreras, 674 P.2d 792, 821 (Alaska App. 1983), rev'd on other grounds, 718 P.2d 129 (Alaska 1986).
Riney v. State, 935 P.2d 828, 840 (Alaska App. 1997) (citing Thorne, 774 P.2d at 1331; Putnam v. State, 629 P.2d 35, 40-43 (Alaska 1980)).
As we have previously pointed out, Judge Aarseth found that the State did not act in bad faith, and that Officer Fraize's failure to preserve the evidence was an inadvertent mistake that he found did not rise to the level of negligence. He found that the loss of the evidence did not prejudice Smith because Fraize had prepared her police report setting out Hastings's statements within a short period of time and that her report contained an accurate summary of Hastings's statements. In addition, Smith had access to Hastings's testimony at the grand jury. Implicit in Judge Aarseth's findings is the conclusion that the lost evidence, the recording of Hastings's statements, was not of significant importance to Smith's ability to defend his case. He therefore declined to impose sanctions.
After reviewing the record, we conclude that Judge Aarseth did not abuse his discretion in declining to impose sanctions. It is a close question whether Officer Fraize acted negligently in failing to preserve the recording, but Judge Aarseth's conclusions that Fraize did not act in bad faith and that Fraize's loss of the evidence was inadvertent are supported by the record. Judge Aarseth's conclusions that the evidence was not critical to Smith's defense and that Smith was not prejudiced by not having the recording are also supported by the record. Officer Fraize set out Hastings's statements in her report, which was written approximately one hour after talking with him, and Hastings testified before the grand jury approximately one month after the incident. Although Smith argues that Hastings's statement right after the incident might have been important, there was nothing complicated about Fraize's report. Officer Fraize witnessed what Hastings said at the scene and attempted to accurately set out his statement in her police report. Smith was able to cross-examine both Officer Fraize and Hastings at trial.
In arguing that he was prejudiced, Smith states that both he and Hastings were critical witnesses at the trial and that "small differences in their testimony [might have] made a huge difference in the charges the jury had to consider." He argues that the audio recording might have shown that Hastings was calm when he talked to Officer Fraize and that this might have undercut Hastings's trial testimony about the assault. He argues that the jury might have had more of a question about whether he actually entered Hastings's residence based upon the content of Hastings's recorded statement. These arguments concerning how he was prejudiced simply amount to unsupported and unconvincing speculation.
Furthermore, in cross-examining Officer Fraize, Smith was able to point out to the jury that Hastings was a critical witness and that she had recorded the interview. Fraize admitted that a recording of a witness right after an incident would be better evidence of the way someone sounded after a stressful incident and the exact words that they used. She admitted that she made a mistake in losing the recording, that she was more vigilant now, and that she had learned from her prior mistake. So Smith was able to point out the State's mistake in losing the recording and to point out this weakness in the State's investigation. This further weakens Smith's claim of any prejudice arising from the recording's absence because the jury was able to consider the problems with the State's investigation caused by the loss of the recording.
We conclude that Judge Aarseth did not abuse his discretion in determining that he would not impose sanctions for the loss of the recording of Hastings's testimony.
Judge Ashman did not err in failing to take some action when he was informed that Smith was handcuffed
In Anthony v. State, the Alaska Supreme Court set out the general principle that, because the defendant in a criminal case is presumed innocent and has the right to "face the jury with the appearance and dignity of a free and innocent man" a trial judge has an independent duty to limit any shackling or restraint of the defendant to achieve this result. A court should allow such restraint only in the presence of manifest necessity and after giving the defendant an opportunity to be heard. Any restraints imposed should be the "least intrusive" necessary to accomplish a necessary objective.
521 P.2d 486, 495 (Alaska 1974).
Id. at 495-96 (citing Kennedy v. Cardwell, 487 F.2d 101 (6th Cir. 1973); Miller v. State, 457 S.W.2d 848, 840-49 (Ark. 1970); Eaddy v. People, 174 P.2d 717, 718 (Colo. 1946); Shultz v. State, 179 So. 764 (Fla. 1938)).
Id. at 496 (citing Kennedy, 487 F.2d at 107, 110 (6th Cir. 1973)).
Id.
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The record in this case shows that Superior Court Judge pro tem Peter Ashman, who conducted Smith's trial, discussed with the parties what security would be necessary in the courtroom during the trial. Smith has not argued that Judge Ashman abused his discretion in the security arrangements which he authorized during the trial. Rather, Smith contends that Judge Ashman erred in failing to take action in response to an incident that occurred during jury deliberations.
After the jurors had deliberated for fourteen hours, over three days, they sent a note to Judge Ashman suggesting that they were having trouble reaching a verdict on one of the charges, and asking for advice. Judge Ashman convened the parties, including Smith, to discuss the note.
Judge Ashman decided to call each juror into the courtroom to question them individually about whether it would be productive for the jury to continue to deliberate. After Judge Ashman questioned two jurors, Smith's counsel asked to approach the bench. In the bench conference, Smith's counsel stated that, because there was only one trooper in the room, Smith was handcuffed. She told the court that she had told Smith "to keep his hands under the table." Judge Ashman replied, "It's the best we can do." Smith's counsel responded, "Okay."
As we have previously stated, Smith does not contend that Judge Ashman erred in directing the security arrangements during the trial. All Smith's counsel did was to inform Judge Ashman that, because only one trooper was available in the courtroom at this moment during deliberations, Smith was in handcuffs. And she informed Judge Ashman that she had acted to make sure that her client would not be prejudiced by having a juror observe Smith in handcuffs — she had told Smith to "keep his hands under the table." She did not ask for any other relief. We conclude that, under these circumstances, Judge Ashman did not err in failing to take any additional action.
The judgment of the superior court is AFFIRMED.