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Sawyer v. State (1/7/2011) ap-2290

Sawyer v. State (1/7/2011) ap-2290

                                               NOTICE 
        The text of this opinion can be corrected before the opinion is published in the 
        Pacific Reporter.   Readers are encouraged to bring typographical or other formal 
        errors to the attention of the Clerk of the Appellate Courts. 

                               303 K Street, Anchorage, Alaska  99501
 
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               IN THE COURT OF APPEALS OF THE STATE OF ALASKA 

DEREK D. SAWYER,                                ) 
                                                )         Court of Appeals No. A-10160 
                            Appellant,          )        Trial Court No. 3GL-06-025 CR 
                                                ) 
             v.                                 ) 
                                                )                O P I N I O N 
STATE OF ALASKA,                                ) 
                                                ) 
                            Appellee.           )           No. 2290 - January 7, 2011 
                                                ) 

                Appeal     from    the  Superior    Court,   Third   Judicial   District, 
                Glennallen, John Suddock, Judge. 

                Appearances:      Christine S. Schleuss, Law Office of Christine 
                Schleuss, Anchorage, for the Appellant.          Tamara E. de Lucia, 
                Assistant Attorney General, Office of Special Prosecutions and 
                Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, 
                Juneau, for the Appellee. 

                Before:     Coats,   Chief   Judge,   and  Mannheimer       and  Bolger, 
                Judges. 

                BOLGER,       Judge. 

                Derek D. Sawyer was convicted of murder for killing his wife, Gretchen 

Sawyer.      Sawyer's defense at trial was that Gretchen either committed suicide, or that 

their twenty-nine-month-old son, Trace, shot her accidentally. 

----------------------- Page 2-----------------------

                Sawyer raises numerous claims of error.   We conclude that Superior Court 

Judge John Suddock did not abuse his discretion when he declined to order the State to 

disclose investigations of other young children firing guns or when he declined to impose 

sanctions   on   the   State   for   their   failure   to   preserve   paper   bags   that   the   investigating 

trooper   used   to   package   evidence   taken   from   the   crime   scene.   We   conclude   that 

evidence that Sawyer was a good parent was not admissible to show that he was not a 

murderer.  We conclude that even if Sawyer did not waive his right to be present when 

the judge questioned and dismissed an errant juror, Sawyer does not establish that his 

absence caused any recognizable prejudice. And we conclude that another trial juror did 

not commit a serious violation of his duties when he neglected to mention that his former 

girlfriend had been killed in a drunk driving incident. 

        Background 

                Gretchen and Derek Sawyer married in 1994 and moved from Arkansas to 

Glennallen, Alaska, after the birth of their son, Trace. Gretchen returned to Arkansas for 

a visit in February of 1996, and during that visit she reunited with her former high school 

boyfriend, Cody Bruce.        Gretchen became pregnant, and Sawyer suspected that Bruce 

was the father.  The couple's relationship deteriorated as Sawyer continued to question 

the baby's paternity while Gretchen maintained that it was his baby. 

                On July 13, 1997, Gretchen was shot once in the face with a Colt .357 

Magnum revolver as she lay in her bed around midnight.                Sawyer called 911 after the 

shooting, and Alaska State Trooper Mark Ridling responded to the scene. 

                Sawyer reported that he and Gretchen had gone to bed around 10:00 that 

evening, but that he got up to shower around midnight. Sawyer told Trooper Ridling that 

he ran from the bathroom after he heard a gunshot and that his son, Trace, was sitting on 

                                                 - 2 -                                            2290
 

----------------------- Page 3-----------------------

the floor of the bedroom next to a revolver.           Sawyer told the officer that the revolver 

belonged to his father, and that Sawyer had placed the loaded gun on the kitchen table 

next to a stack of rental videos, all of which he intended to return the next day.  Trooper 

Ridling   seized   some   evidence   from   the   bedroom,   including   the   gun   and   the   bloody 

pillows from the bed. 

                The   day   after   Gretchen's   death,   members   of   the   community   contacted 

Trooper Ridling to ask if they could clean the Sawyers' house, and Ridling agreed, 

believing that he could not secure the crime scene without a warrant. 

                Gretchen's killing went uncharged until Sawyer was indicted in 2006 on 
one count of first-degree murder.1        At trial, Sawyer contended that Gretchen must have 

committed suicide, or that twenty-nine-month-old Trace accidentally shot and killed his 

mother.    The State presented evidence that Trace was not physically able to pull the 

trigger on the gun due to the size and strength of his hands.  Sawyer was convicted after 

trial and he now appeals. 

        Discussion 

                Sawyer's Motion to Compel 

                Sawyer filed a motion to compel, asking the judge to order the State to 

produce the results of Alaska State Troopers investigations into incidents reported in the 

Anchorage Daily News where young children fired weapons, resulting in injury or death. 

The motion referred to three specific investigations "as well as any other instances of 

young   children   firing   guns   known   to   the   State."  The   State   opposed   the   motion   to 

compel, arguing that the case files Sawyer requested were irrelevant.   The State argued 

        1   AS 11.41.100(a)(1)(A). 

                                                 - 3 -                                              2290 

----------------------- Page 4-----------------------

that the issue in Sawyer's case was not whether any child was capable of firing any gun, 

but whether Trace was capable of firing the handgun used in this case. 

                 Judge   John   Suddock   denied   the   motion   in   a   written   order   finding   that 

Sawyer's discovery request was unduly burdensome to the police authorities and would 

constitute "an extraordinary waste of time and resources." Judge Suddock noted that the 

request was "hopelessly overbroad," and remarked that the defense had available to it 

"far   superior   avenues   to   pursue   its   point   [that   young   children   are   capable   of   firing 

guns],"   including   expert   testimony   by   occupational   therapists   or   national   databases 

maintained by safety organizations "that would dwarf the tiny sampling available in 

police files in Alaska." 

                 On appeal, Sawyer argues that the trial court committed reversible error 

when   it   refused   to   compel   the   State   to   disclose   Alaska   State   Troopers   investigative 

reports   from   the   three   reported   incidents.    Sawyer   contends   that   the   trial   court   was 

required to issue a subpoena to compel this production because the reports contained 
relevant evidence favorable to the defense.2 

                 This court will uphold a trial court's decision to deny a motion to compel 
discovery   except   when   the   court   has   plainly       abused    its   discretion.3   An   abuse   of 

discretion has occurred when the reasons for the exercise of the trial judge's discretion 
are clearly untenable or unreasonable.4 

        2    See Braham v. State, 571 P.2d 631, 643 (Alaska 1977) (holding that information 

from ongoing investigations must be disclosed if relevant and if disclosure will not "harm 
enforcement or protection efforts"). 

        3    Gunnerud v. State, 611 P.2d 69, 72-73 (Alaska 1980). 

        4    Lewis v. State, 469 P.2d 689, 695 (Alaska 1970). 

                                                    - 4 -                                               2290
 

----------------------- Page 5-----------------------

                 Alaska Criminal Rule 16(b)(1)(i) requires the prosecution to disclose "[t]he 

names and addresses of persons known by the government to have knowledge of relevant 

facts   and   their   written   or   recorded   statements   or   summaries   of   statements."       Rule 

16(b)(7)   allows   the   court   "in   its   discretion"   to   require   disclosure   of   other   relevant 

information "[u]pon a reasonable request showing materiality to the preparation of the 

defense."     Information listed in Rule16(b)(1)(i) must be disclosed automatically, but 

information covered by Rule 16(b)(7) need be produced on request only after a showing 
of materiality.5 

                 Both    of   these  subsections     require   the  discoverable     information      to  be 

relevant; this requirement will justify nondisclosure of information that is "reasonably 
not thought to be germane to the case."6             In order to satisfy this relevance threshold, 

evidence of unrelated prior incidents must have taken place under substantially similar 
circumstances.7 

                 There were significant dissimilarities between this case and those reported 

in the news media.  In one case from Kasilof, a five-year-old child was killed with a rifle, 

but the report did not indicate which of three young siblings, all seven or younger, was 

holding the rifle when it went off.  In another case from Nightmute, a child of unreported 

age shot a twelve-year-old boy with an unidentified weapon.  In the third case from Fort 

Wainwright, a four-year-old shot himself with a handgun he retrieved from a high shelf. 

None of the cases involved a handgun fired by a child as young as Trace.                     There were 

        5    Carman v. State, 658 P.2d 131, 140 (Alaska App. 1983). 

        6   Howe v. State, 589 P.2d 421, 424 (Alaska 1979). 

        7   See Walden v. State Dep't of Transp., 27 P.3d 297, 303 (Alaska 2001) (evidence 

of prior or subsequent accidents is admissible in product liability litigation so long as the 
incident took place under substantially similar circumstances). 

                                                   - 5 -                                              2290
 

----------------------- Page 6-----------------------

also no parties or witnesses linking these investigations to Sawyer's case.  We conclude 

that the judge did not abuse his discretion in refusing to order this disclosure. 

                Sawyer's Motion to Dismiss the Indictment 

                Following the second day of testimony, Sawyer filed a motion to dismiss 

the indictment based upon the State's failure to preserve the bags used to transport a blue 

pillow from the Sawyer residence to the Glennallen trooper station.  Sawyer requested 

either dismissal of the indictment, or the suppression of all evidence relating to the seized 
bedding and pillows, or a spoliation instruction.8 

                The State's theory at trial was that a tear in the fabric and gunshot residue 

on the blue pillow showed that it was in contact with the gun when it discharged.  The 

defense argued that the gun was laying on the pillow when it was fired and that the blood 

was transferred to the back of the pillow when it was packaged and contaminated by 

other   bloody   objects.   Sawyer   argued   that   Trooper   Ridling's   failure   to   preserve   the 

original packaging of the pillows meant that the jury could not determine the position of 

the pillow during the shooting.         The State responded by pointing out that the blood- 

soaked condition of the blue pillow was evident from photographs taken at the scene and 

therefore it would be speculative for Sawyer to argue that the original packing would 

allow him "to show ... whether there was blood on the back of the pillow."  The State 

also pointed out that Trooper Ridling testified that he recalled that there was blood on 

both sides of the blue pillow when he seized it. 

        8   See Thorne v. Dep't of Pub. Safety, 774 P.2d 1326, 1331-32 & n.12 (Alaska 1989) 

(finding that when the State fails to preserve evidence, the jury should be directed to presume 
that the evidence would have been favorable to the defendant). 

                                                 - 6 -                                             2290 

----------------------- Page 7-----------------------

                 Judge Suddock denied the motion, finding that Trooper Ridling's failure 

to   preserve   the   bags   was   in   good    faith,   and  that   the   defense   had   not   shown    any 
prejudice.9     Judge   Suddock   noted   that   the   defense   would   be   free   to   argue   that   the 

generalized deficiencies in the State's management of the evidence created a reasonable 

doubt as to whether the pillows cross-contaminated one another, and stated "therein lies 
the punishment to the State for [any] defects in evidence collection."10 

                 On appeal, Sawyer withdraws his claim that the trial court should have 

dismissed his indictment but pursues his claims that the judge should have suppressed 

the evidence or given a spoliation instruction. The application of sanctions for the failure 

to   preserve    evidence     depends     on   the  degree    of  the   prosecution's      culpability,   the 
importance of the lost evidence, and the prejudice to the defense.11 

                 Judge Suddock's findings were not clearly erroneous and his ruling was 

reasonable.  Trooper Ridling's testimony suggested that the bags were likely destroyed 

inadvertently.  The  evidentiary value of the packaging was not apparent.  And Trooper 

        9    See March v. State, 859 P.2d 714, 716 (Alaska App. 1993) ("While officers have 

a   duty   to   preserve   potentially   exculpatory   evidence   actually   gathered   during   a   criminal 
investigation,      the  due    process    clause   has   never    required    officers    to  undertake     a 
state-of-the-art investigation of all reported crimes."). 

         10  Thorne, 774 P.2d at 1331-32 & n.12. 

         11  Putnam v. State, 629 P.2d 35, 43 (Alaska 1980), abrogated on other grounds by 

Stephan v. State, 711 P.2d 1156, 1159 (Alaska 1985) ("[W]here it appears that the evidence 
was lost or destroyed in good faith, the imposition of sanctions will depend upon the degree 
to which the defendant has been prejudiced."); Contreras v. State, 674 P.2d 792, 821 (Alaska 
App. 1983), rev'd on other grounds, 718 P.2d 129, 130 (Alaska 1983) ("[W]here no specific 
rule or court decision requires the prosecution to preserve the evidence in question ... the 
defendant bears the burden of proving   that, if preserved, the evidence would have been 
exculpatory."). 

                                                    - 7 -                                               2290
 

----------------------- Page 8-----------------------

Ridling's observations suggested that the defense had not been prejudiced by the loss of 

this evidence.     Under these circumstances, no sanctions were required. 

                 Sawyer's Request that His Children Be Allowed to Testify 

                 The   Sawyers   had   two   children,   Trace   (Sawyer's   biological   child)   and 

Jodicee (the   child   that   Sawyer suspected to be Bruce's).             Sawyer sought to call his 

children to testify as to the strength of their relationship with Sawyer and to the fact that 

Sawyer   did   not   love   Trace   more   than   Jodicee.      Sawyer   also   sought   to   present   the 

children's testimony that Sawyer never spoke negatively about Gretchen, and that he 

hung a photo of Gretchen in the children's bedroom. 

                 Judge Suddock denied Sawyer's request, finding that the evidence was not 

relevant, and was unduly prejudicial.   Judge Suddock found that the testimony from the 

children   would   advance   the   inference   that   they   would   be   orphaned   if   Sawyer   was 

convicted. 

                 Sawyer argues that his ability to present a defense was infringed when 
Judge Suddock denied this request.12          Sawyer contends that the children's testimony was 

crucial to counter the State's claim that Sawyer killed his wife because of his resentment 

that Jodicee was not his biological child.          We review a trial court's decision to exclude 
evidence under Alaska Evidence Rule 403 for an abuse of discretion.13 

                 Sawyer's   attorney   made   the   following   argument   when   he   offered   this 

evidence: 

        12  See Keith v. State, 612 P.2d 977, 984 (Alaska 1980) (admitting character evidence 

over   the   State's   objection   that   it   was   cumulative   where   the   evidence   "was   vital   to   the 
defendant's version of the events"). 

        13   Weitz v. State, 794 P.2d 952, 955 (Alaska App. 1990). 

                                                   - 8 -                                                2290 

----------------------- Page 9-----------------------

                Our argument is, a killer doesn't keep constant reminders of 
                the person he killed, on a daily basis in his house.  And that 
                if Derek Sawyer was a murderer, as they claim, who had no 
                blood     interest  in   Jodicee   at  all,  that  it's  fundamentally 
                inconsistent with that claim, to have loved her and raised her 
                [as he did] his own son. 

In other words, Sawyer wanted to use the children's testimony about his good parenting 

conduct   to   show   that   he   was   not   a   murderer. And,   in   the   context   of   this   case,   he 

obviously intended to use this inference that he was not a murderer to establish that he 

did not murder Gretchen. 

                But evidence of a person's character is not admissible to show that the 
person acted in conformity therewith on a particular occasion.14               And even when a trait 

of the defendant's character is relevant, the defense may not rely on specific instances 
of good conduct.15      So Sawyer was not entitled to use the inference that he was not a 

murderer to show that he did not murder Gretchen.                And he was not entitled to rely on 

specific instances of good parenting to show that he was not a murderer. 

                It was not an abuse of discretion for the judge to conclude that any marginal 

probative value of the children's testimony was outweighed by the danger of unfair 

prejudice - that the jury would use the evidence improperly to conclude that Sawyer 

was not a killer or that the jury would acquit to avoid separating the children from their 

father. 

        14  See Alaska Evid. R. 404(a); Linehan v. State, 224 P.3d 126, 146-47 (Alaska App. 

2010) (holding that evidence that defendant admired a murderous movie character was not 
admissible to show that she committed murder). 

        15  See Alaska Evid. R. 405; Allen v. State , 945 P.2d 1233, 1239-40 (Alaska App. 

1997) (holding that evidence of defendant's prior acts of violence was not admissible to 
prove his character for violence). 

                                                  - 9 -                                             2290
 

----------------------- Page 10-----------------------

                Sawyer's Right-to-Be-Present Juror-Dismissal Claim 

                After the prosecution had rested and the defense had already examined 

several    witnesses,    the   prosecutor    reported    that  a  juror,  Daniel    Becker,    had   been 

discussing the case with friends and had   commented   on the case in violation of the 

court's order.  Judge Suddock examined Becker outside the presence of the jury, but in 

the   presence   of   defense   counsel   and   the   prosecutor.    Sawyer's   attorney   stated   that 

Sawyer waived his right to be present. 

                During the examination, Becker admitted to discussing the case with two 

non-juror friends; he admitted commenting generally about the evidence but denied 

commenting on the strength of the State's case.   Juror Becker also told the court that he 

was scheduled to begin a training course related to his work and, therefore, would not 

be available for jury service when the jury was expected to be deliberating. 

                Judge Suddock explained that he had clearly conveyed to the jury that they 

were not to form or express opinions about the case, and that they were warned not to 

divulge that they were jurors in the case. Judge Suddock found that Becker had willfully 

violated these instructions.       Judge Suddock announced that he would excuse Becker, 

considering this violation, along with the fact that Becker desired to attend a training 

during the time the jury was expected to be deliberating.             The judge noted that "I think 

we are more likely to have a fair and impartial jury if we do so." 

                Even though Sawyer's lawyer raised no objection at the time, and in fact 

encouraged Judge Suddock to proceed in Sawyer's absence,   Sawyer argues that his 

constitutional   right   to   be   present   at   all   stages   of   his   trial   was   violated   when   Judge 

Suddock questioned Becker in his absence.  "If a defendant has a constitutional right to 

be present at a proceeding, the defendant must personally waive his right to be present 

                                                 -  10 -                                            2290
 

----------------------- Page 11-----------------------

or expressly consent to allow the proceeding to occur outside his presence."16       When a 

defendant's right to be present at a proceeding is violated, we evaluate whether the error 
was harmless beyond a reasonable doubt.17 

              In many circumstances, the defendant has the absolute right to be present 
when the court questions a juror,18 and the record contains no indication that Sawyer 

personally waived his right to be present.     We do not know what discussion occurred 

between Sawyer and his attorney.  But this type of error does not require reversal if there 

is a legitimate reason to excuse the juror, if there is nothing in the record that suggests 

that the defendant's presence would have affected the judge's decision, and if there is no 

reason to believe that an alternate juror made a decision that was different than the juror 
who was excused.19 

              We assume for purposes of this opinion that it was error to question Becker 

outside Sawyer's presence.      But the court's decision to excuse Becker was harmless 

because the juror's violation of his oath and his work responsibilities were legitimate 

reasons to excuse him.    Defense counsel was present, and there is no reason to believe 

that Sawyer's personal presence would have made a difference in the judge's decision. 

There is likewise nothing in the record to suggest that the seating of the alternate juror 

made any difference in the outcome of the trial. 

       16  Pease v. State, 54 P.3d 316, 324-25 (Alaska App. 2002).
 

       17  Collins v. State, 182 P.3d 1159, 1163-64 (Alaska App. 2008).
 

       18  See Pease, 54 P.3d at 325 (explaining that "it is error for a judge to receive the
 

verdict outside the presence of the defendant (even if counsel is present)"). 

       19  Collins, 182 P.3d  at 1163; Coney v. State, 699 P.2d 899, 904 (Alaska App. 1985). 

                                            -  11 -                                      2290
 

----------------------- Page 12-----------------------

                 Sawyer's Motion for a New Trial Based upon Juror Misconduct 

                 Prior   to   sentencing   Sawyer   filed   a   motion   for   a   new   trial   alleging   that 

another juror, Martin Finnesand, failed to disclose information that the defense would 

have used to challenge him.   Specifically, defense counsel asked:  "Has anyone, or their 

relatives   or   friends,   ever   been   the   victim   of   or   witness   to   a   serious   violent   crime?" 

Finnesand did not report that his former girlfriend, and the mother of his child, had been 

killed in an incident for which her boyfriend was convicted of vehicular homicide. 

                 At the evidentiary hearing on Sawyer's motion, Finnesand testified that he 

and his girlfriend had a daughter together in 1981 and then separated in 1985.  In 1990, 

Finnesand's former girlfriend was killed when she was thrown from a moving vehicle, 

possibly during an episode of domestic violence.               Her boyfriend, Bill Linnell, pled no 

contest to criminally negligent homicide and was sentenced to serve one year in jail. 

                 Finnesand testified that the incident "simply did not come to [his] mind" 

during the voir dire questioning about violent crimes and that he always thought of his 

former girlfriend's death as being accidental.             He testified that he believed that Linnell 

had   been   charged   with   "drunken   driving,   or   negligence   of   some   kind."       Finnesand 

testified that the parties did not ask any questions during voir dire that reminded him of 

his former girlfriend's death and he further stated that he did not especially want to sit 

on Sawyer's jury. 

                 Judge     Suddock      found    that  Finnesand      did   not  consciously      withhold 

information and that any information   relating to Finnesand's former girlfriend                       was 

unrelated to Sawyer's trial.        Accordingly, the judge denied Sawyer's motion for a new 

trial. 

                                                   -  12 -                                             2290
 

----------------------- Page 13-----------------------

                 We review a trial court's denial of a motion for a new trial for an abuse of 
discretion.20   When a party alleges juror misconduct, "the verdict should stand unless the 

evidence clearly establishes a serious violation of the juror's duty and deprives a party 
of a fair trial."21  A new trial should be granted if the jury selection process suggests that 

a juror consciously withheld information.22 

                   The   trial   judge   applied   the  appropriate   test   when   he   concluded   that 

Finnesand did not consciously fail to disclose material information on voir dire.  The 

question about whether Finnesand's friends or relatives had been the victim of a violent 

crime   did   not   clearly   apply   to   the   information   about   Finnesand's   former   girlfriend 

because Finnesand did not view the motor vehicle accident as a violent crime. There was 

likewise no evidence that Finnesand's participation deprived Sawyer of a fair trial.  The 

judge's decision to deny the motion for a new trial was not an abuse of discretion. 

                 Cumulative Error 

                 Sawyer argues that the cumulative impact of the foregoing errors deprived 

him of a fair trial.     But "[c]umulative error requires reversal only when the impact of 

errors at trial is so prejudicial that the defendant was deprived of a fair trial, even if each 
individual error was harmless."23         We conclude that Sawyer has not established any error 

         20  Cheely v. State, 861 P.2d 1168, 1178 (Alaska App. 1993) (citing State v. Swain, 

817 P.2d 927, 930 (Alaska App. 1991)). 

         21  Fickes   v.   Petrolane-Alaska   Gas   Serv.,   Inc.,   628   P.2d   908,   910   (Alaska   1981) 

(quoting  West v. State, 409 P.2d 847, 852 (Alaska 1966)); see also Manrique v. State, 177 
P.3d 1188, 1191 (Alaska App. 2008). 

         22  Soundara v. State, 107 P.3d 290, 296 (Alaska App. 2005). 

         23  Roussel v. State, 115 P.3d 581, 585 (Alaska App. 2005). 

                                                   -  13 -                                             2290
 

----------------------- Page 14-----------------------

except   the   judge's   decision   to   question   and   exclude   a   juror   when   Sawyer   was   not 

present, and that error did not cause Sawyer any recognizable prejudice. 

        Conclusion 

                We therefore AFFIRM the superior court's judgment. 

                                                 -  14 -                                           2290
 
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