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accepting the State's concession that the trial court erred in denoting on the judgment that two counts of second-degree murder "merged for sentencing"
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Court of Appeals No. A-12121 No. 6728
11-07-2018
JOSHUA DAVID WAGNER, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Jane B. Martinez, Law Office of Jane B. Martinez, LLC, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Donald Soderstrom, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, 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-11-12073 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Jack W. Smith, Judge. Appearances: Jane B. Martinez, Law Office of Jane B. Martinez, LLC, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Donald Soderstrom, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, and Allard and Wollenberg, Judges. Judge WOLLENBERG.
A jury found Joshua David Wagner guilty of second-degree murder. Wagner appeals, raising three claims.
Wagner first argues that the trial court erred in refusing to instruct the jury, under Thorne v. Department of Public Safety, to presume that the audio notes of the crime scene investigators' observations — audio recordings that were deleted by the police after they were transcribed — were favorable to Wagner. The trial court concluded that this presumption was unwarranted. But the trial court nonetheless instructed the jury that it could consider the circumstances surrounding the deletion of the recordings in evaluating the investigators' testimony. We conclude that the trial court did not abuse its discretion in declining to give an adverse-inference instruction under Thorne.
Thorne v. Dep't of Public Safety, 774 P.2d 1326, 1331-32 (Alaska 1989).
Wagner next argues that the trial court erred in permitting the prosecutor to display to the jury a mannequin dressed in the clothing worn by the victim at the time of his death. We find no reversible error in this decision, particularly given the favorable instruction Wagner received regarding the clothing.
Finally, Wagner notes that there is a technical flaw in the trial court's written judgment. At Wagner's sentencing, the trial court properly merged the jury's two verdicts for second-degree murder. But in the written judgment, the court improperly designated the two counts of second-degree murder as merging "for purpose of sentencing" only. We remand this case to the trial court to correct the judgment by entering a single conviction for second-degree murder.
Underlying facts and proceedings
In October 2011, Wagner moved his trailer onto the Anchorage property shared by Norman George Dennis Jr. and Dennis's girlfriend, Annie Atkinson. Atkinson had given Wagner permission to leave his trailer in their driveway for two to three days. Wagner eventually removed the trailer from the driveway, but, without permission, he moved several of his possessions into Dennis and Atkinson's garage.
One evening, Wagner put his dog in the garage, and Dennis told Atkinson he was going to ask Wagner to remove the dog. Shortly after Dennis left to speak with Wagner, Atkinson heard a commotion in the garage. Atkinson and her brother went to the garage and saw Dennis and Wagner fighting.
Initially, Dennis appeared to have Wagner backed up against the wall. But after a few seconds, Dennis retreated, and Atkinson's brother saw a knife fall out of Wagner's hand. Dennis was bleeding badly. Atkinson's brother pulled Dennis into the house, and Atkinson called 911.
While Dennis was lying on the floor inside the house, Wagner broke a window with a fire extinguisher, sprayed it inside, and screamed repeatedly that he would kill Dennis.
The medics arrived and transported Dennis to the hospital. Dennis died from a stab wound to his heart.
A grand jury indicted Wagner on one count of first-degree murder, two counts of second-degree murder (under alternative theories), and one count of third-degree criminal mischief.
AS 11.41.100(a)(1)(A), AS 11.41.110(a)(1) & (a)(2), and AS 11.46.482(a)(1), respectively.
At trial, Wagner argued that he killed Dennis in self-defense. According to Wagner, Dennis punched him repeatedly and struck him with an unknown object, and then Dennis pulled out a knife and tried to cut Wagner. Wagner testified that he was able to pry the knife out of Dennis's hand, and he then stabbed Dennis. Wagner acknowledged that he initially lied to the police by telling them that the fight had started on his own property, and by describing the object with which Dennis had hit him as either a black spike or an axe handle.
The jury acquitted Wagner of first-degree murder but convicted him of second-degree murder and third-degree criminal mischief. (Wagner does not appeal his third-degree criminal mischief conviction.)
The court did not abuse its discretion in declining to give a Thorne instruction regarding the audio notes of the crime scene investigation
Following Dennis's death, a crime scene investigation team spent the night documenting the scene. The officers used cassette recorders to record their observations as they photographed, measured, and diagrammed the scene and collected evidence. These oral "field notes" were later transcribed by the Anchorage Police Department for inclusion in the officers' reports. After the transcripts were completed and reviewed by the officers, the audio recordings were deleted and the tapes re-used, consistent with the practice of the Anchorage Police Department.
Prior to trial, Wagner asked the court for a "Thorne instruction" — an instruction directing the jury to presume that the deleted audio recordings would have been favorable to Wagner.
Thorne, 774 P.2d at 1331-32.
The trial court found that the police had a duty to preserve the field recordings. But after a police transcriptionist and five officers who investigated the crime scene testified outside the presence of the jury about the Department's practice regarding the recordings, the court declined to give an adverse-inference instruction. The court found that the police had not acted in bad faith and that Wagner had not suffered any discernible prejudice.
Wagner challenges the trial court's decision. In response, the State argues that, contrary to the superior court's ruling, the officers had no duty to preserve the recordings. The State also argues that the trial court did not err when it declined to give an adverse-inference instruction.
We need not address the State's first argument because, even assuming the State had a duty to preserve the audio recordings, we conclude that the trial court did not abuse its discretion in declining to give a Thorne instruction under these circumstances.
See Riney v. State, 935 P.2d 828, 840 (Alaska App. 1997) (evaluating judge's denial of a Thorne instruction for abuse of discretion).
In Thorne, the Alaska Supreme Court addressed the proper remedy for situations in which the police have destroyed evidence that they previously gathered during a criminal investigation. The defendant in Thorne was arrested for driving while intoxicated. After Thorne resolved his criminal case by entering a plea to the lesser charge of negligent driving, the police erased and re-used the videotape of Thorne's performance on the field sobriety tests. When the Department of Public Safety subsequently took administrative action against Thorne's driver's license, the videotape was no longer available.
Thorne, 774 P.2d at 1331-32.
Id. at 1327.
Id. at 1328.
Id. at 1328-29.
The supreme court held that the police violated Thorne's right to due process when they destroyed the videotape before the administrative proceeding was resolved. As a remedy, the court remanded Thorne's case to the administrative hearing officer with directions to presume that the videotape would have been favorable to Thorne. In determining the appropriate sanction for the State's failure to preserve evidence in its possession, the court advised of the need to balance four factors — "the degree of culpability on the part of the state, the importance of the evidence lost, the prejudice suffered by the accused, and the evidence of guilt adduced at the trial or hearing."
Id. at 1330.
Id. at 1332.
Id. at 1331.
Here, Wagner contests the trial court's finding that the police acted in good faith. He argues that the officers acted in bad faith because they intentionally deleted the audio recordings as part of a department policy. But "bad faith" for purposes of Thorne refers to "a deliberate attempt to avoid production" of the evidence. Although the judge in Wagner's case questioned the soundness of the police department's policy of erasing the audio once the officers had checked the transcription, the judge found that this policy was aimed at conserving resources—not at suppressing evidence. The recordings were not erased until they were transcribed and made part of the officers' final reports, which were provided to Wagner. And there was no evidence that the officers intended to prevent disclosure of information to Wagner.
State v. Ward, 17 P.3d 87, 90 (Alaska App. 2001) (quoting Putnam v. State, 629 P.2d 35, 43 (Alaska 1980)); see also Stover v. State, 1996 WL 33686815, at *4 (Alaska App. June 26, 1996) (unpublished) (noting that, in the context of the State's failure to preserve evidence, "bad faith" refers to "a purposeful attempt to prevent its disclosure").
We review a trial court's finding of good or bad faith for clear error. We conclude that the trial court's finding that the officers did not act in bad faith is not clearly erroneous.
See Stover, 1996 WL 33686815, at *5 (citing Long v. State, 772 P.2d 1099, 1101 (Alaska App. 1989), and Wilbur v. State, 816 P.2d 907, 911 (Alaska App. 1991)).
Wagner next argues that, even absent bad faith, the trial court erred in declining to find that Wagner had suffered prejudice. But this is not a case, like Thorne, where the evidence itself — such as the video of Thorne's field sobriety tests — was completely destroyed and unavailable for Wagner's defense. This is also not a case where the police failed to preserve recordings of witness statements, where a transcript might not fully capture certain intangible characteristics of the interview, like the tenor of a witness's voice or the nature of a witness's reaction. Rather, the police used the cassette tapes simply to record their own observations of the crime scene in lieu of taking written field notes; these recordings were directly transcribed, and the transcripts were incorporated into the reports provided to Wagner.
The trial court found that any deviations between the recordings and the transcripts in this case were minor, consisting solely of grammatical or formatting changes. Wagner challenges this finding. But this finding is supported by the officers' testimony, which the judge found credible.
Moreover, as the trial court recognized, there was a substantial amount of documentary evidence collected from the scene. This evidence included hundreds of photographs in addition to an hour-long video that documented the crime scene as a whole; this video was admitted into evidence and available for the jury's review. The trial court could reasonably find that the existence of the transcripts, together with the amount of evidence collected from the scene, made it unlikely that the audio recordings contained important information that was not transcribed or that was otherwise unavailable to the defense.
See Williams v. State, 629 P.2d 54, 63-64 (Alaska 1981) (concluding that no sanction was required after the police erased the recorded statement of a rebuttal witness because the tape was garbled and notes had been taken of the entire interview, as the recording was cumulative of other evidence at trial); see also Abdulbaqui v. State, 728 P.2d 1211, 1218 (Alaska App. 1986); Riney v. State, 935 P.2d 828, 839-40 (Alaska App. 1997) (upholding denial of Thorne instruction, in part, because destroyed evidence was cumulative of other evidence in record).
Finally, we note that while the trial court declined to issue an instruction that the jury should presume that the audio recordings would have been favorable to Wagner's defense, the court instructed the jury that it could consider the destruction of the recordings in evaluating the officers' testimony. Despite this instruction, Wagner's attorney did not discuss either the deleted recordings or the transcripts in his closing argument.
Under these circumstances, we conclude that the superior court did not abuse its discretion in declining to give Wagner's requested instruction.
The trial court did not abuse its discretion in permitting the display of Dennis's clothing on a mannequin
During trial, the prosecutor announced that he intended to display to the jury a mannequin dressed in the clothing Dennis was wearing during the fight. The prosecutor explained that he considered this the "best representation" of what Dennis looked like while fighting with Wagner.
Wagner's attorney argued that the proposed display was cumulative of photographs of Dennis's clothes that were already in evidence and that the display was unduly prejudicial. The defense attorney also argued that the display would be misleading due to the amount of blood that had soaked into Dennis's clothing while the medics were attending to him.
The court shared the defense attorney's concern as to whether the clothing accurately represented Dennis's appearance at the time of the fight. But the court ruled that it would permit the display.
The defense attorney moved to reconsider, contending that dressing the mannequin in Dennis's clothing constituted a "re-enactment" of the event, and that the trial court was required to analyze the admissibility of this re-enactment under Love v. State. The prosecutor explained that he did not intend to perform a re-enactment, but simply to use the mannequin to display Dennis's clothes to the jury in three dimensions. Wagner's attorney agreed that the State could display Dennis's clothing for the jury, but he challenged the use of the mannequin on the ground that it did not accurately portray how Dennis would have appeared to Wagner during the fight.
Love v. State, 457 P.2d 622, 627-28 (Alaska 1969) (explaining standard for admission of experiments as evidence).
The court concluded that the display would not amount to a re-enactment. The court also found that the clothes were evidence that could be validly displayed to the jury. But because the court found that the clothes were in a materially different condition than they were at the time Dennis left the garage, the court gave a limiting instruction to the jury.
In particular, the court instructed the jury "not to consider the mannequin as an accurate representation of how Mr. Dennis looked while in the garage," since Dennis wore the clothing for up to an hour after he left the garage, including in the hospital, and thus "substantially more blood" would have seeped into the clothing. The court also instructed the jury that there were "significant differences between the conditions in this courtroom today and the conditions as they existed in the garage," and that the mannequin was not an accurate representation of Dennis's posture or size on the night of the assault.
Wagner raises two arguments on appeal. First, Wagner again contends that displaying the mannequin was a "re-enactment" — i.e., an experiment purporting to simulate past events. Accordingly, he argues that, under Love v. State, the State was required to show that the evidence was "developed under conditions substantially similar to those surrounding the event in issue."
Id. at 627; see also Smith v. State, 771 P.2d 1374, 1378 (Alaska App. 1989).
We disagree with Wagner that the display of the mannequin constituted a re-enactment. The State did not use the mannequin to try to recreate what happened in the garage. Rather, the State used the headless, armless mannequin simply to display Dennis's clothing — a display not meaningfully different than having an officer simply hold up the clothing. We conclude that the trial court was not required to analyze the use of the mannequin under Love.
Second, Wagner argues that the display of the mannequin was impermissible under Alaska Evidence Rules 401, 402, and 403 because it was irrelevant, misleading, and unduly prejudicial.
Given the trial court's limiting instruction, it is clear that the court actively assessed the probative value of the display of the clothing against its potential for misleading the jury. Moreover, we note that much of the prejudice that Wagner alleges — the additional blood staining that occurred after the stabbing and the additional cuts in the clothing caused by the medics — stems from the state of the clothing itself, rather than its display on a mannequin.
Wagner never contested the propriety of showing Dennis's clothing to the jury; he simply challenged the display of this clothing on a human-like form. Given this record, the court did not abuse its discretion in permitting the use of the mannequin.
The trial court must amend the judgment to reflect a single conviction for second-degree murder
The jury found Wagner guilty of two counts of second-degree murder based on different theories of the same offense. At Wagner's sentencing hearing, the trial court stated that the two counts would "merge for purpose of sentencing." The written judgment similarly reflects that the two counts are "merged for sentencing." Wagner contests this characterization and argues that the judgment must reflect a single merged conviction for second-degree murder. The State concedes error.
The State's concession is well-founded. As we explained in Nicklie v. State, Alaska law does not recognize merger of convictions for sentencing purposes only. Rather, when a jury finds a defendant guilty of two counts that merge, the merger results in a single conviction based on the jury's two verdicts.
See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (requiring an appellate court to independently evaluate any concession of error by the State in a criminal case).
Nicklie v. State, 402 P.3d 424, 425-26 (Alaska App. 2017). --------
Accordingly, we direct the trial court to modify the judgment to reflect a single merged conviction for second-degree murder.
Conclusion
We REMAND this case to the trial court to amend the judgment consistent with this opinion. The judgment of the superior court is otherwise AFFIRMED.