Opinion
Court of Appeals No. A-9296.
August 19, 2009.
Appeal from the Superior Court, Third Judicial District, Kenai, Charles Cranston, Judge, Trial Court No. 3KN-02-253 CR.
Sharon B. Barr, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Tamara de Lucia, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
MEMORANDUM OPINION AND JUDGMENT
On February 2, 2002, M.B. was found on the floor of her bedroom under an overturned armoire. She was bleeding profusely around her head and vagina, and had received severe trauma, including numerous fractures, bite marks on her chest, extensive injuries to her face and neck, a crushed jaw, and a vaginal laceration. The State charged twenty-year-old Justin Starkweather, M.B.'s neighbor, with attempted first-degree murder, first-degree sexual assault, first-degree assault, first-degree burglary, and fourth-degree theft. Starkweather claimed that the crimes were committed not by him, but by Melissa Larson and Fred Bahr Jr.
AS 11.41.100(a)(1)(A) AS 11.31.100(a).
AS 11.41.410(a)(1), (2).
AS 11.41.200(a)(1) — (3).
AS 11.46.300(a)(1), (2)(B).
AS 11.46.150(a).
As part of this defense, Starkweather offered evidence of Bahr's prior bad acts and convictions to support his contention that Bahr was M.B.'s attacker. Senior Superior Court Judge Charles K. Cranston allowed Starkweather to introduce some of this evidence — including some of Bahr's prior convictions — but not all. On appeal, Starkweather argues that Judge Cranston erred when he excluded other portions of this offered evidence. But we conclude that Judge Cranston did not abuse his discretion when he excluded this offered evidence.
Starkweather also argues that Judge Cranston erred by not dismissing his case for prosecutorial interference with a witness. Before trial, the State served Bahr with a subpoena to appear as a witness for the government at Starkweather's trial. Both the prosecutor and the defense had already interviewed Bahr. Sometime later, Bahr, who was under parole supervision, absconded. Starkweather sought discovery of any relevant information from the prosecutor's pretrial interview. The prosecutor objected to this inquiry into her interview with Bahr, contending that it was not discoverable because it constituted work product. Judge Cranston required the prosecutor to provide the court with her notes of the interview for an in camera inspection.
After reviewing these notes, Judge Cranston found that they contained no date but mentioned that Bahr's next meeting with his parole officer was scheduled for March 22, 2004; that the notes did not contain an indication of Bahr's attitude toward being called as a witness; and that the notes indicated that Bahr was willing to provide a DNA sample. With this information, Judge Cranston concluded that because the prosecutor had not made any summary of Bahr's statements, the requested information was not discoverable.
Starkweather then moved to dismiss the case, arguing that the prosecutor interfered with Bahr, w ho was described as a defense witness. Judge Cranston ultimately denied this motion.
On appeal, Starkweather argues that this was error. We conclude that the record supports Judge Cranston's ruling that the prosecutor's notes contained no information discoverable under Criminal Rule 16(b)(1)(A)(i). However, our review of the prosecutor's notes shows that Bahr apparently informed the prosecutor of statements made by Starkweather, statements that would be discoverable before trial under Criminal Rule 16(b)(1)(A)(ii). Yet we have found no indication in the record that these statements w ere otherwise disclosed to Starkweather. Accordingly, we must direct disclosure of these statements and remand for findings by the superior court.
Starkweather also argues that Judge Cranston abused his discretion by failing to exclude the testimony of a particular witness. During the trial, the State disclosed that it planned to call a witness whom it had recently discovered. The witness was a prison inmate, Jeremy Cooper, who would testify that Starkweather, while the two were together in jail, admitted assaulting M.B. Starkweather objected, claiming that the State violated its discovery obligation by not identifying Cooper as a prospective witness in a timely manner. Starkweather argued that the State should be barred from calling Cooper because of the mid-trial notification. But Judge Cranston ruled that the State had not committed a discovery violation and granted Starkweather a continuance to prepare for Cooper's testimony. Starkweather argues that this remedy was inadequate. Starkweather never asked for a mistrial; he only asked the court to exclude Cooper's testimony. We conclude that Judge Cranston did not abuse his discretion by declining to exclude Cooper's testimony.
Finally, Starkweather argues that Judge Cranston violated his double jeopardy rights when he imposed separate sentences for attempted first-degree murder and first-degree assault, because those counts should merge. Starkweather also argues that the composite sentence of 80 years' imprisonment with 25 years suspended was excessive. We defer ruling on these issues pending receipt of the superior court's additional findings.
Why we conclude that Judge Cranston did not err in limiting Starkweather's presentation of Bahr's prior bad acts
Before trial, Starkweather filed a notice of his intent to offer evidence that Bahr and Larson had committed the assault on M.B. Starkweather contended that Larson, who was a friend of his, had come to his house at 1 a.m. on the morning of the assault. According to Starkweather, Larson borrowed shoes from him and asked him to hold a bag for her. Starkweather contended that this evidence explained why the police found bloody shoe prints going from M.B.'s house to Starkweather's residence, as well as why Starkweather had a bag containing M.B.'s personal effects in his room.
In this notice, Starkweather pointed out that, although Larson denied any involvement in the assault and denied taking any shoes from Starkweather or giving him a bag, she did admit to having been with Bahr and at Starkweather's house on the night of the assault. Starkweather characterized Bahr as a person with "a substantial history of both drug use and violence against women" and "a convicted felon with a history of sexual violence."
Starkweather identified the following evidence to support his assertion that Bahr was the person who assaulted M.B.: (1) Bahr's 1994 sexual assault conviction and the State's sentencing memorandum in that case, which included information that Bahr prevented the victim from leaving and became violent when the victim resisted his advances; (2) another incident in 1994 where Bahr spit at a state trooper, broke a tail light of a patrol car with his knee, and attempted to shatter the plexiglass screen in a patrol car with his head; (3) Bahr's convictions for two counts of domestic violence against his companion when he was on probation for the sexual assault case; (4) Bahr's 1997 assault conviction for his attack on his wife and small children where he wielded a butcher knife, and that allegedly commenced when Bahr became enraged when his wife refused to have sex with him — Bahr stabbed the television, cut himself, and flicked blood toward the arresting officers and his children; and (5) after Bahr's arrest on an outstanding probation violation warrant, a urinalysis test showing that he had consumed cocaine and marijuana.
Applying Alaska Evidence Rule 404(b), Judge Cranston concluded that Bahr's 1994 conviction for sexual assault, the 1994 incident involving the altercation with state troopers, and Bahr's arrest after a positive drug test were inadmissable propensity evidence. He ruled that Starkweather could introduce certified copies of Bahr's convictions for third-degree assault and for domestic violence, but prohibited Starkweather from discussing the underlying facts of those cases other than as stated in the judgments. During opening statements, Starkweather's attorney told the jury:
Fred Bahr was thirty-two years old at the time. He weighed about 270 pounds. He's 6'2" tall. He is a convicted felon. You will learn that Bahr is a man with a history of violence against women. He has a felony conviction for assaulting a woman and two other convictions for domestic violence assaults. This is not a man that women are safe around.
Later in the trial, Starkweather attempted to elaborate on the details of one of the convictions through the testimony of Anchorage Police Detective Rod Ryan. Starkweather argued that the underlying facts of Bahr's prior assaults show ed propensity for violence against women. Accordingly, Judge Cranston ruled that allowing the details of the prior conviction would constitute propensity evidence in violation of Evidence Rule 404(b).
Starkweather contends that Judge Cranston erred in refusing to allow evidence of Bahr's conviction for sexual assault and by barring testimony to establish the facts underlying Bahr's conviction for domestic violence assault.
Starkweather argues that the evidence of Bahr's 1994 sexual assault conviction would have demonstrated that Bahr "became violent and angry when his sexual advances were refused." Starkweather asserts that the assault conviction shows that Bahr has a propensity to attack women: "A jury hearing that Bahr had a prior conviction for a sexual offense might have reasoned that if Bahr previously sexually assaulted a woman who resisted his sexual advances, he sexually assaulted M.B." Starkweather argues Judge Cranston erred in refusing to let Starkweather set out the facts of Bahr's 1997 assault conviction where he attacked his wife and small children while wielding a butcher knife. These facts could have established Bahr's propensity for violence against women.
If a defendant wishes to introduce evidence implicating a specific person who also might have committed the crime, the defendant must first "produce evidence that `tend[s] to directly connect such other person with the actual commission of the crime charged.'" Based on Starkweather's offer of proof, Judge Cranston concluded that Starkweather had met this burden. We question whether Starkweather met this burden at trial based on our review of the record. Even so, the rules of evidence still govern what evidence is admissible.
Smithart v. State, 988 P.2d 583, 586 (Alaska 1999) (alteration in Smithart) (quoting Marrone v. State, 359 P.2d 969, 984-85 n. 19 (Alaska 1961)).
Cleveland v. State, 91 P.3d 965, 975 (Alaska App. 2004).
Evidence Rule 404(b)(1) prohibits the admission of "other crimes, wrongs, or acts . . . if the sole purpose for offering the evidence is to prove the character of a person in order to show that the person acted in conformity therewith." This rule codifies the common-law doctrine forbidding the admission of "propensity" evidence, which is "evidence of a person's other bad acts whose sole relevance is to prove the person's character, so that the person's character can then be used as circumstantial evidence that the person acted true to character during the episode being litigated." Evidence Rule 404(b)(1) permits evidence of prior bad acts for "other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." In other words, evidence of a person's prior misconduct is inadmissible unless it is probative of some disputed fact other than the person's general propensity to engage in similar misconduct. Evidence Rules 404(b)(2), (3), and (4) offer limited exceptions to the prohibition of propensity evidence, but none of these exceptions applies in this case.
Bingaman v. State, 76 P.3d 398, 403 (Alaska App. 2003) (citations omitted).
See Jordan v. State, 895 P.2d 994, 999 (Alaska App. 1995)
The fact that evidence of other crimes is admissible under Evidence Rule 404(b)(1) does not necessarily mean that the evidence should beadmitted. Even if evidence is admissible under Rule 404(b), it is still subject to exclusion under Evidence Rules 402 and 403. Rule 402 bars the admission of irrelevant evidence. Rule 403 allows a trial court judge to exclude relevant evidence "if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."
Bingaman, 76 P.3d at 401.
Id.; Jordan, 895 P.2d at 999.
Starkweather argues that because Evidence Rules 404(b)(2), (3), and (4) allow propensity evidence against the accused under certain limited circumstances, this court should apply "an even more liberal standard . . . when admitting prior bad act evidence concerning another suspect."
This court has recognized that prior-misconduct evidence should be more liberally admitted when it is offered against a witness instead of theaccused. But in Jordan v. State, this court made clear that this relaxed standard does not affect the initial propensity inquiry, but instead affects only the Rule 403 balancing test:
See Jordan, 895 P.2d at 999.
This relaxed standard, however, reflects the change in the A.R.E. 403 balance of probative value and prejudicial impact that usually occurs when prior-misconduct evidence relates to a witness instead of the accused. To reach the relaxed A.R.E. 403 balancing analysis, the accused must first establish, under A.R.E. 404(b), that the proffered evidence relates to some issue other than propensity.[]
Id.
Because we agree with Judge Cranston that this evidence proved only Bahr's character, we reject Starkweather's argument that the evidence should have been admitted to show Bahr's propensity for violence against women.
Starkweather also argues that the evidence should have been admitted to show Bahr's "identity" as the perpetrator. Starkweather concedes in his brief that for evidence to be relevant for identity under Evidence Rule 404(b)(1), the circumstances of the prior conviction have to be so similar to the charged offense as to disclose a unique modus operandi. But he argues that Bahr's modus operandi was to become "extraordinarily violent when women resisted him."
In Jordan, we indicated that the evidence rules permitted using a prior conviction to prove identity only if the circumstances of the prior case were so similar to the current case so "as to disclose a unique modus operandi." This court went on to explain that
Id. (italics removed).
[a]bsent circumstantial similarities sufficiently unique to constitute a "signature crime," a prior conviction for a similar offense tends to establish identity only through the impermissible inference of propensity: "[M]uch more is demanded than the mere repeated commission of crimes of the same class, such as burglaries or thefts."[]
Id. (alteration in Jordan) (quoting Vaughn C. Ball et al., McCormick on Evidence § 190, at 449 (2d ed. 1972)).
In Starkweather's case, Judge Cranston could properly conclude that the facts of Bahr's prior conviction for sexual assault and the specific facts of his 1997 domestic violence assault were inadmissible because they were simply propensity evidence. We further note the record shows that Starkweather did introduce substantial evidence of Bahr's criminal history and was able to argue that this evidence suggested Bahr attacked M.B. Consequently, we conclude that Judge Cranston did not err in limiting the evidence of Bahr's prior bad acts.
Why we conclude that Judge Cranston properly rejected Starkweather's argument that he was entitled to question the prosecutor about her interview with Bahr and obtain a copy of the prosecutor's notes
Shortly before trial, Starkweather's attorney learned that Bahr had absconded. On September 2, 2004, Starkweather filed a motion to compel discovery from the Department of Corrections Division of Probation and Parole about Bahr. Starkweather argued that when a person he described as an "other suspect" disappears immediately before trial, descriptions of the circumstances of his absconding should be discoverable. Starkweather asserted that Bahr's probation officer had ordered Bahr to contact the district attorney to discuss the case and that Bahr disappeared after being given this order. Judge Cranston granted Starkweather's request for discovery of files from the Department of Corrections.
Starkweather then asked Judge Cranston to order the prosecutor to inform the defense about whether she had any contact with Bahr and, if so, to produce any documentation of that contact. In response, the prosecutor stated that the paralegal from her office had spoken to Bahr, probably on several occasions over the past year. The prosecutor also admitted that she had interviewed Bahr in her office and went over the questions she expected to ask him on direct examination and the answers to those questions. The prosecutor stated that she did not record or transcribe the interview but took notes. She asserted that nothing in her notes was discoverable.
Judge Cranston ordered the prosecutor to turn her notes over to the court for an in camera inspection. Starkweather's attorney submitted a memorandum to the court to assist the court in determining whether any information in the prosecutor's notes was discoverable. The memorandum included a list of several topics, including seventeen statements that Bahr had allegedly made on other occasions. The defense attorney asked the court to review the materials to see if any of Bahr's statements appeared to contradict prior statements that Bahr had made.
In reviewing the prosecutor's notes of the interview with Bahr, Judge Cranston found that the notes did not contain discoverable material. Judge Cranston noted that the prosecutor's notes were undated, but they did contain a notation that Bahr's next meeting with his parole officer was on March 22, 2004. He found that the notes did not contain any reference to Bahr's attitude toward being a witness and that the notes contained a reference that Bahr was willing to provide a DNA sample.
Thereafter, Starkweather moved to dismiss the case, arguing that the prosecutor had improperly interfered with the defense's case during her interview with Bahr by either directly or indirectly encouraging Bahr to abscond or by threatening him in some way and thereby causing him to abscond. Starkweather thus requested a hearing to examine the prosecutor about her interview with Bahr. Starkweather asserted that when a "witness disappears after an interview with the prosecutor, it is not unreasonable to assume that some conduct on the part of the prosecutor caused such a disappearance, either by a direct threat of prosecution, [or] a threat of negative action toward the suspect based upon his non-cooperation, such as a threat to revoke his parole." Starkweather argued that such prosecutorial actions aimed at discouraging critical witnesses from testifying deprived him of his right to due process.
On October 2, 2004, Judge Cranston considered Starkweather's motion to dismiss. Starkweather also requested permission to question the prosecutor about her interview with Bahr at an evidentiary hearing. The prosecutor responded that Judge Cranston had already reviewed her interview notes, and she therefore opposed any further inquiry into the matter. The prosecutor pointed out that Bahr was aware that he had violated his parole because of his urine test that was positive for drugs and that Bahr may have absconded for reasons entirely unrelated to Starkweather's case.
In reviewing the matter, Judge Cranston asked the prosecutor some questions about her interview with Bahr. First, the judge asked her whether, "during the interview between you and Mr. Bahr, did Mr. Bahr assert a Fifth Amendment privilege?" The prosecutor declined to answer the question. Judge Cranston then asked, "Do your notes omit anything significant with respect to what Mr. Bahr told or asserted during that interview?" The prosecutor replied, "Nothing." Starkweather's attorney objected, arguing that the prosecutor's answer did not make any sense because she refused to answer whether Bahr asserted his privilege against self-incrimination. Judge Cranston then asked the prosecutor, "Can I assume from the fact that there was no reference to a Fifth Amendment privilege in the notes, that [Bahr] did not assert the Fifth?" Continuing to assert the work product privilege, the prosecutor declined to answer the question. The defense attorney specified that she wanted to know whether Bahr had asserted a Fifth Amendment privilege, asserted his Sixth Amendment rights or asked for counsel in any way, asked for any benefit in exchange for testifying, admitted to committing the crime, or made any statements that were inconsistent with his prior statements.
After this discussion, Judge Cranston issued a written order ruling that there was nothing in the record to suggest that Bahr absconded because of the interview with the district attorney or because of any act of prosecutorial misconduct. He found that under Criminal Rule 16(b)(1)(A)(i), there was nothing additional that the State was obligated to discover, other than Bahr's name and address — information already supplied to Starkweather. He further ruled that Criminal Rule 16 does not require the prosecutor to respond to questions relating to interviews with witnesses. Therefore, Judge Cranston denied Starkweather's motion to dismiss.
Starkweather appeals Judge Cranston's decision to not order the prosecutor to turn over the notes of her interview with Bahr and the refusal to order the prosecutor to answer questions about this interview.
Bahr was subpoenaed to testify in the case and was under parole supervision, but had disappeared sometime after the interview with the prosecutor. (Starkweather had also interviewed Bahr to prepare for trial.) Bahr's probation officer testified that he had not had any contact with Bahr since February, that he had attempted to contact him on several occasions, and that the troopers had also been unsuccessful in their attempts to find him.
Criminal Rule 16 is designed to further discovery by minimizing surprise, affording opportunity for effective cross-examination, and meeting the requirements of due process. Two subsections of Criminal Rule 16 are of importance to this case, Criminal Rule 16(b)(1) and (3).
Kristich v. State, 550 P.2d 796, 800 (Alaska 1976).
Criminal Rule 16(b)(1), in pertinent part, reads:
(b) Disclosure to the Accused.
(1) Information within Possession or Control of Prosecuting Attorney.
(A) Except as is otherwise provided as to matters not subject to disclosure and protective orders, the prosecuting attorney shall disclose the following information within the prosecuting attorney's possession or control to defense counsel and make available for inspection and copying:
(i) The names and addresses of person known by the government to have knowledge of relevant facts and their written or recorded statements or summaries of statements;
(ii) Any written or recorded statements and summaries of statements and the substance of any oral statements made by the accused;
(iii) Any written or recorded statements and summaries of statements and the substance of any oral statements made by a co-defendant[.]
In addition, Criminal Rule 16(b)(3) provides:
(b) Disclosure to the Accused. . . .
(3) Information Tending to Negate Guilt or Reduce Punishment. The prosecuting attorney shall disclose to defense counsel any material or information within the prosecuting attorney's possession or control which tends to negate the guilt of the accused as to the offense or would tend to reduce the accused's punishment therefor.
Relying on Sivertsen v. State, the State argues that the prosecutor's interview with Bahr was the questioning of a witness or part of trial preparation and was not discoverable. In Sivertsen, we held Criminal Rule 16(b)(1)(A)(i) did not require the prosecution to disclose the oral statements of a witness (other than oral statements of a defendant or codefendant) "made during pretrial preparation shortly before trial." Although we recognized that our interpretation of the rule "could be abused," we observed that in Sivertsen there was no indication in the record "that the prosecutor tried to circumvent the rule." We also noted that it was clear that Sivertsen was aware of the witness and stated that the record did not reflect that the prosecution did anything to prevent the witness from discussing the case with Sivertsen.
963 P.2d 1069 (Alaska App. 1998), disapproved of on other grounds in Sivertsen v. State, 981 P.2d 564, 567 (Alaska 1999).
Id. at 1071.
Id. at 1072.
Id.
Starkweather contends that there was bad faith on the part of the prosecutor. If the prosecution suppresses exculpatory evidence, a defendant's due process rights may be violated. But Judge Cranston rejected Starkweather's claim that there was misconduct by the prosecutor, finding nothing in the record to support Starkweather's claim.
See Brady v. Maryland, 373 U.S. 83, 86-87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215 (1963); Dorman v. State, 622 P.2d 448, 455 (Alaska 1981).
Here, the prosecutor met with Bahr in late February of 2004. At that time, trial was scheduled to start a few weeks later on April 12, 2004. However, the trial did not start until September. The prosecutor's notes contained in the record reflect areas of questioning consistent with reasonable witness preparation for this case. As the notes reflect and as Judge Cranston divulged, Bahr was willing to provide a DNA sample and pointed out to the prosecutor that the State already had a sample of his DNA. (Bahr had a prior felony conviction and the State obtained a DNA sample from him under AS 12.55.015(h).) From our examination of the record, we conclude that the prosecutor's notes are not discoverable information under Criminal Rule 16(b)(1)(A)(i).
Why we conclude additional findings are necessary
The prosecutor's notes appear to reflect two statements by Starkweather to Melissa Larson or Bahr. The notes are handwritten, but it appears that Bahr informed the prosecutor that Starkweather called Larson ten to fifteen times and at some point stated, according to the handwritten note, "I just did something really bad and it's your fault because you wouldn't come and talk to me." In addition, the notes reflect another comment from Starkweather, presumably to Bahr and apparently about Larson, "Bring her back or I'll kick your ass." Criminal Rule 16(b)(1)(A)(ii) requires the disclosure of "the substance of any oral statements made by the accused." Similarly, the American Bar Association's Standards for Criminal Justice explains:
[T]he discoverability of the [defendant's] statement does not depend on its written or oral form. . . . For example, the statement is discoverable even if made before or during the alleged offense, even if exculpatory, and even if made to a third party rather than to prosecution or police personnel.
Commentary to 2 ABA Standards for Criminal Justice, § 11-2.1(a)(ii), at 11-20 (2d ed. 1982) (internal footnotes omitted).
Thus, if the notes indeed reflect statements by Starkweather, the State was required to disclose these statements under Criminal Rule 16(b)(1)(A)(ii).
The superior court must determine whether Starkweather was prejudiced by the non-disclosure of this information. If this had been a mid-trial discovery violation, then under Bostic v. State, a defendant is obliged to advance a plausible way in which his defense could be prejudiced by the prosecution's failure to make a timely disclosure. Once the defense makes that showing, the government has the burden to disprove prejudice.
805 P.2d 344 (Alaska 1991).
See Jurco v. State, 825 P.2d 909, 917 (Alaska App. 1992).
Bostic, 805 P.2d at 349.
But the parties have not addressed whether the Bostic standard should apply for post-trial disclosure of this information and whether there is a different standard if the nondisclosure would constitute a discovery violation. In Putnam v. State, the court ruled that when the State loses or destroys potentially exculpatory evidence without bad faith and without attempting to avoid production of the evidence, sanctions will be imposed on the State only if the defendant was prejudiced.
629 P.2d 35 (Alaska 1981), rev'd on other grounds by Stephan v. State, 711 P.2d 1156 (Alaska 1985).
Id. at 43.
We applied this analysis for a potential discovery violation when the State did not preserve evidence in Abdulbaqui v. State .
728 P.2d 1211 (Alaska App. 1986).
The state's failure to comply with these disclosure requirements, due to the loss or destruction of the evidence in question, does not automatically require the imposition of sanctions. Rather, the trial court must carefully examine the circumstances surrounding the state's violation of its duty of preservation. What, if any, sanctions are appropriate is to be determined by weighing the degree of culpability involved on the part of the state, the importance of the evidence that has been lost, and the evidence of guilt that is adduced at trial.
Where the evidence in question was destroyed in bad faith or as part of a deliberate attempt to avoid production, sanctions will follow. On the other hand, where it appears that the evidence was lost or destroyed in good faith, the imposition of sanctions will depend on the degree to which the defendant has been prejudiced. In cases where the defendant cannot reasonably be said to have been prejudiced by the state's good faith failure to preserve the evidence, sanctions will not generally be appropriate. Where the defendant has suffered prejudice, however, sanctions will generally be warranted. What sanction is appropriate in a given case is left to the sound discretion of the trial court.
In applying this rule, the state has the burden of establishing that the failure to preserve the evidence occurred in good faith, and not out of a desire to suppress evidence, and of demonstrating that the defendant has suffered no resulting prejudice. Further, because of the difficulty involved in speculating whether or not the lost or destroyed materials could have been used effectively at trial, the harmless error doctrine will be strictly applied in these cases.[]
Id. at 1217-18 (citations omitted).
Although the instant case involves the nondisclosure of information, rather than the loss or destruction of evidence, the standards applied in Putnam and Abdulbaqui may assist the superior court.
After allowing the parties to address the issue, the superior court shall make findings of fact and conclusions of law. The court must address whether Bahr disclosed statements by Starkweather and whether the statements were cumulative of other statements by Starkweather that were otherwise discovered. The transcript does show that Larson testified about phone calls from Starkweather that she received when she was with Bahr, but Larson testified that she had little recollection of what Starkweather said.
Assuming that the statements were discoverable and Starkweather advances a plausible way in which his defense was prejudiced by the nondisclosure of the two statements quoted above, the superior court shall determine whether Starkweather's defense was prejudiced by the nondisclosure of those two potentially discoverable statements. The superior court shall forward its findings and decision to this court within 120 days of the issuance of this decision. When the matter returns to this court, we will continue our consideration of this case.
Why we conclude that Judge Cranston did not err in denying Starkweather's motion to exclude the testimony of Jeremy Cooper
Slightly over one month after M .B. was attacked, Starkweather was in a cell at Wildwood Correctional Complex near Jeremy Cooper, another inmate, for approximately three days. Over two years later, on September 7, 2004, Cooper spoke to his wife on the telephone from the jail and told her that Starkweather had admitted that he attacked M.B.
The jail routinely records inmate telephone calls. A few days after Cooper called his wife, an employee of the facility listened to a recording of the telephone call as part of the jail's routine procedure. When he heard the contents of Cooper's call, he immediately informed the district attorney's office.
The prosecutor asked Trooper James G. Truesdell to investigate the call. Truesdell obtained a search warrant and seized the recorded phone call on September 14. On Saturday, September 25, Truesdell interviewed Cooper. The following Monday, September 27, the prosecutor provided Starkweather with the substance of Cooper's statements to Starkweather. (Jury selection began on September 8 and the parties gave opening statements on September 17.)
On October 1, 2004, Starkweather moved to preclude the State's use of Cooper's testimony or, in the alternative, for the immediate production of records. Starkweather contended that the State "was fully aware of, and physically in possession of [Cooper's recorded statements] during jury selection and prior to opening statements." Because the State did not disclose this information until September 27, Starkweather asserted that the State "completely and deliberately violated the provisions of Criminal Rule 16 . . ., the defense is substantially prejudiced, and the only meaningful remedy is preclusion [of Cooper's testimony]." In the alternative, Starkweather requested expedited discovery of Cooper's juvenile delinquency files, the search warrant application for the recorded statements, and any offers discussed between Cooper and the State. In addition, Starkweather wanted a court order requiring Cooper and his wife, Darcy Cooper, to immediately submit to an interview with defense counsel.
Judge Cranston concluded that the State did not violate Criminal Rule 16. Because he found no violation, he ruled that preclusion of Cooper's testimony was inappropriate. Instead, the court determined that Starkweather could have a reasonable continuance to prepare for and respond to Cooper's potential testimony. Judge Cranston ordered that Starkweather be provided with the search warrant application and the substance of any offers made by the State to Cooper. He also ordered that arrangements be made to allow Starkweather's attorney to interview Cooper and his wife.
Starkweather challenges Judge Cranston's ruling that the state did not commit a discovery violation. He points out that the State was aware by at least September 10 that Cooper told his wife that Starkweather had admitted committing the offense. He argues that the prosecutor was required to immediately disclose Starkweather's statements under Criminal Rule 16(b)(1)(A). He points out that, by the time he was told about the telephone call and that Cooper would be called as a State's witness, he had already selected a jury and made his opening statement. But Judge Cranston reasoned that the State was entitled to perform a reasonable investigation before concluding that Cooper was a person who had relevant facts or knowledge about the case that needed to be disclosed to the defense. He concluded that a reasonable continuance, rather than exclusion of Cooper's testimony was the appropriate remedy.
We do not need to resolve the question of whether Judge Cranston was correct that the State was entitled to conduct an investigation before informing Starkweather about Cooper's telephone call and that Cooper would be a State's witness. Even assuming that the State committed a discovery violation, the real question before us concerns the proper remedy for the fact that Starkweather first learned about Cooper's potential testimony when his trial was well under way.
The leading case for determining the remedy when there is a mid-trial discovery violation is Bostic . In that case, the court acknowledged that "a continuance is ordinarily the appropriate remedy for a discovery violation. . . ." But, where there is a discovery violation:
Id. at 347 (quoting Bostic v. State, 772 P.2d 1089, 1094 (Alaska App. 1989).
[T]he party violating [the discovery rules] has the burden of showing that the non-offending party has not been prejudiced in the manner he specifically claims. If this burden is not met in regard to a violation of the Rule which surfaces during trial, and the party violating the Rule deems the evidence too important to proceed without it, the proper remedy is a mistrial."[]
Id. at 345.
Starkweather did not move for a mistrial. He argues that "a mistrial was unnecessary because the jury had not yet heard the Cooper evidence when Starkweather made his motion." Starkweather appears to be arguing that excluding Cooper's testimony would be a less drastic remedy than declaring a mistrial. But this is simply not the law. As is illustrated by the discussion in Bostic, where a continuance is an inadequate remedy, a mistrial is appropriate. Exclusion of evidence for a discovery violation, if it is ever appropriate, is a drastic remedy that results in the suppression of relevant evidence. We conclude that Starkweather was not entitled to the exclusion of Cooper's testimony. He may have been entitled to a continuance or perhaps a mistrial, but Starkweather said he did not want either.
Unless Starkweather moved for a mistrial, Judge Cranston could not have granted a mistrial without implicating Starkweather's double jeopardyrights. Under these circumstances, we do not find plain error in Judge Cranston's refusal to declare a mistrial sua sponte. Conclusion
See, e.g., Tritt v. State, 173 P.3d 1017, 1019-20 (Alaska App. 2008).
We REMAND the case for additional findings. The superior court shall transmit its findings to this court within 120 days of this decision. We will then resume our consideration of the case.
Starkweather's defense was that Fred Bahr and Melissa Larson committed the crime. Under Alaska law, whenever a defendant "wishes to implicate a specific individual, evidence of the third party's guilt is admissible only if the defense can produce evidence that `tend[s] to directly connect such other person with the actual commission of the crime charged.'" The State has not contested the sufficiency of Starkweather's evidence to directly connect Bahr with the actual commission of the crime.
Smithart v. State, 988 P.2d 583, 586 (Alaska 1999) (quoting Marrone v. State, 359 P.2d 969, 984-85 n. 19 (Alaska 1961)).
On September 2, 2004, shortly before Starkweather's trial, Starkweather's attorney learned that Bahr had absconded, even though he was under state subpoena and was on parole supervision. Starkweather learned that Bahr apparently had fled shortly after talking to the prosecutor in February or March.
In response to motions from Starkweather, the prosecutor stated that she had not recorded or transcribed her interview with Bahr but that she had taken notes. She asserted that nothing from her notes, or from what Bahr had said, was discoverable by the defense.
Judge Cranston ordered the prosecutor to turn her notes over to the court for an in camera inspection. Starkweather's attorney submitted a memorandum to the court to assist it in determining whether any information in the prosecutor's notes was discoverable. The memorandum was served on the prosecutor's office. The memorandum included a list of several topics, including seventeen statements that Bahr had allegedly made. The memorandum asked the court to provide discovery if any of Bahr's statements appeared to contradict these particular prior statements.
Judge Cranston later issued an order stating that he had reviewed the prosecutor's notes of her interview with Bahr and found no discoverable material. Starkweather then filed a motion to dismiss the case, claiming that the prosecutor had improperly interfered with the defense's case during her interview with Bahr. Starkweather thus requested a hearing to examine the prosecutor about that interview. Specifically, Starkweather asserted that when
[a] witness disappears after an interview with the prosecutor, it is not unreasonable to assume that some conduct on the part of the prosecutor caused such a disappearance, either by a direct threat of prosecution, or a threat of negative action toward the suspect based upon his non-cooperation, such as a threat to revoke his parole.
Accordingly, Starkweather argued that prosecutorial actions aimed at discouraging critical witnesses from testifying can deprive a defendant of due process.
On October 2, 2004, Judge Cranston met with counsel outside the presence of the jury to discuss Starkweather's motion to dismiss for prosecutorial interference. At this meeting, Starkweather renewed his request to question the prosecutor about her interview with Bahr. The prosecutor responded that Judge Cranston had already reviewed her interview notes, and she opposed any further inquiry. She also pointed out that Bahr was aware that he had violated his parole because his urine had tested positive for drugs and might have absconded for reasons entirely unrelated to Starkweather's case.
Nevertheless, Judge Cranston proceeded to question the prosecutor about her interview with Bahr. He asked her whether, "[D]uring the interview between you and M r. Bahr, did Mr. Bahr assert a Fifth Amendment privilege?" The prosecutor refused to answer the question. Judge Cranston then asked, "Do your notes omit anything significant with respect to what Mr. Bahr told or asserted during that interview?" The prosecutor replied, "Nothing." Starkweather's attorney objected and argued that the prosecutor had still not indicated whether Bahr asserted his Fifth Amendment privilege. Judge Cranston then asked the prosecutor, "Can I assume from the fact that there was no reference to a Fifth Amendment privilege in the notes, that [Bahr] did not assert the Fifth?" The prosecutor declined to answer the question. The defense attorney specified that she wanted to know whether Bahr had asserted a Fifth Amendment privilege, asserted his Sixth Amendment rights or asked for counsel in any way, asked for any benefit in exchange for testifying, admitted to committing the crime, or made any statements that were inconsistent with his prior statements.
Judge Cranston ruled that there was nothing in the record to suggest that Bahr had absconded because of any information he disclosed to the district attorney or because of any act of prosecutorial misconduct. He found that, under Alaska Criminal Rule 16(b)(1)(A)(i), if the prosecutor's interview with Bahr was not written or recorded, there was nothing to discover other than Bahr's name and address. He further ruled that Criminal Rule 16 does not require the prosecutor to respond to questions relating to interviews with witnesses. Therefore, Judge Cranston denied Starkweather's motion to dismiss.
Starkweather appeals Judge Cranston's decision to not order the prosecutor to turn over the notes of her interview with Bahr and his refusal to order the prosecutor to orally divulge the substance of that interview.
In analyzing this issue, it is important to recognize that Starkweather has not seen the prosecutor's notes, which were provided to the court in camera. Of course, Starkweather was not present when the prosecutor interviewed Bahr. This makes it very difficult for Starkweather to argue how he might have been prejudiced by any lack of discovery. Therefore, we do not have the benefit of Starkweather's argument on this issue or the State's response to that argument.
I begin my analysis by pointing out that Starkweather set out some unusually compelling reasons why he needed the discovery that he asked for in this case. His defense was based upon a claim that the assault was committed by an alternate suspect, Fred Bahr. Although Bahr was subpoenaed to testify in the case, while he was under parole supervision and required to register as a sex offender, he disappeared, apparently shortly after talking to the prosecutor. Bahr's probation officer testified in October 2004, during Starkweather's trial, that he had not had any contact with Bahr since late February or early March, that he had attempted to contact Bahr on several occasions, and that the troopers had also been unsuccessful in their attempts to find him. Starkweather's attorney represented that, since learning of Bahr's disappearance, the defense had actively attempted to locate him. Consequently, the prosecutor's interview with Bahr was the last time anyone connected with the case had spoken with him, and Starkweather had no alternative means of getting information about Bahr's potential involvement in the crime.
All three members of this court agree that the prosecutor violated the discovery rules by failing to disclose to Starkweather his oral statements. Therefore, it is obvious that the prosecutor violated the discovery rules in spite of the fact that her attention was specifically directed to her notes. And Judge Cranston erred in failing to direct the disclosure of at least Starkweather's statements as reflected in the notes. Furthermore, in his notice to Judge Cranston about what information he should be looking for in the notes, Starkweather asked whether Bahr had made any statements inconsistent with the statement, "I don't know Justin Starkweather."
Alaska R. Crim. P. 16(b)(1)(A)(ii).
The prosecutor's notes reflect that Bahr "talked to Justin that night — [Starkweather] said `bring her back or I'll kick your ass.'" This statement, which should have been turned over to the defense, appears to indicate that, contrary to his prior statement, Bahr did know Justin Starkweather. It also appears that "that night" was the night of the assault, or at least very close in time to the night of the assault.
Starkweather has established that the prosecutor withheld this statement. Because it is obviously discoverable as a statement of the defendant, and Starkweather made it clear that he was seeking any statements that would contradict Bahr's earlier statement that he did not know Starkweather, Starkweather has an argument that the prosecutor's failure to turn over this information should allow him to inquire further into the prosecutor's interview with Bahr. I therefore conclude that this may be a case where the defense established grounds to obtain discovery of the prosecutor's interview.
Cf. Payne v. Bell, 89 F. Supp. 2d 967 (W.D. Tenn. 2000) (granting petitioner's request to depose prosecutor where petitioner produced evidence of possible Brady violations and the prosecutor was "the only source of the information sought by Petitioner").
Judge Cranston erred in failing to perceive that the prosecutor had withheld discoverable information and may have erred in failing to allow Starkweather additional discovery about the prosecutor's interview with Bahr. But because the case is being remanded, I do not need to decide this issue.
This case is being remanded because of the discovery violation. As I have previously pointed out, because Starkweather was unaware of the discovery violation, he has not had any opportunity to argue how he was prejudiced. And the State has not had the opportunity to explain why it committed the discovery violation or to rebut Starkweather's claims of prejudice. On remand, the trial court will be able to develop a factual record, and the parties will be able to address these issues.