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Carter v. State (8/7/2015) ap-2466

Carter v. State (8/7/2015) ap-2466

                                                      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
  

                                              Fax:  (907) 264-0878
  

                                      E-mail:  corrections @ akcourts.us
  



                 IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



STEVEN GENE CARTER,  

                                                                     Court of Appeals No. A-11631  

                                     Appellant,                    Trial Court No. 3AN-12-3373 CR  



                           v.  

                                                                              O  P  I  N  I  O  N  

STATE OF ALASKA,  



                                     Appellee.                          No. 2466 - August 7, 2015  



                  Appeal   from   the   District   Court,   Third   Judicial   District,  

                                                                   

                  Anchorage, Leslie Dickson and Gregory J. Motyka, Judges.  



                  Appearances: Andrew Steiner, Bend, Oregon, for the Appellant.  

                                                                               

                                                            

                  A.  James  Klugman,  Assistant  District  Attorney,  Anchorage,  

                                                                                      

                  and  Michael  C.  Geraghty,  Attorney General,  Juneau,  for  the  

                                                                    

                  Appellee.  



                  Before:  Mannheimer, Chief Judge, Allard, Judge, and Hanley,  

                                                         

                  District Court Judge. *  

                                                 



                  Judge MANNHEIMER.  



     *   Sitting  by   assignment  made  pursuant  to  Article  IV,  Section  16  of   the  Alaska  



Constitution and Administrative Rule 24(d).  


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

                        Steven Carter was convicted of third-degree theft for stealing $213 from a                                                       



                                                                                                                                         1  

wallet during an Easter service at the Tudor Rescue Mission in Anchorage.                                                                           

                                                                                                                                            No one  



                                                                                                                                             

personally witnessed Carter take the wallet, but the theft was recorded by the Rescue  



                                                                                                                                            

Mission's video security system.  Several people who viewed this video later testified  



                                                                                                                                              

at Carter's trial. The video itself, however, was not available at trial because the portion  



                                                                                                                                            

of the hard drive containing the video was automatically recorded over by the security  



                                                            

system after a number of weeks.  



                                                                                                                                                      

                        The officer who was assigned to investigate Carter's case testified that he  



                                                                                                                                                    

went to the Mission and asked the staff to make him a copy of the video, but he was told  



                                                                                                                                                       

that the one person who knew how to do this was not available.  The officer returned to  



                                                                                                                                                            

the Mission at least five times to get a copy of the video, but he was never successful.  



                                                                                                                                    

Ultimately, it became too late:  the security system over-wrote the video.  



                                                                                                                                               

                        In this appeal, Carter claims that the Anchorage police had a duty to collect  



                                                                                                                                                

the video and preserve it - and that, because the police did not do so, the trial judge  



                                                                                                                                         

either should have dismissed thetheft charge or, in the alternative, should have instructed  



                                                                                                                                    

the jurors that they should presume (contrary to all the evidence) that the video would  



                                                                                                                                            

have been exculpatory.  See Thorne v. Dept. of Public Safety, 774 P.2d 1326 (Alaska  



               

 1989).  



                                                                                                                                 

                        Carter's first theory is that the Anchorage police came into "constructive"  



                                                                                                                                                    

possession of the video, and that they then allowed it to be destroyed.  The facts of this  



                                                                                                                                                   

case simply do not support an assertion of "constructive possession", at least as that  



                                                                                                                                                     

phrase is normally understood.  The video was in the possession of the Mission, the  



      1     Carter was prosecuted under the 2012 version of AS 11.46.140(a)(1), which defined   



third-degree  theft   as   the  theft  of   property valued                             between  $50  and  $500.    In  the  2014  

legislative session, this statute was amended so that it now covers thefts of property valued                                                  

between $250 and $750.  See SLA 2014, ch. 83,  5.  



                                                                         - 2 -                                                                   2466
  


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

Mission staff were not acting as agents of the police, and the police in fact made several                                                                                                                                                                                                                                                                                                         



attempts   -   all   unsuccessful   -   to   obtain  a   copy   of   the   video.     There   was   no  



"constructive possession".                                                                                                         



                                                                 Carter argues in the alternative that if police did not constructively possess                                                                                                                                                                                                                                                  



the video, they nevertheless had a due process obligation to collect the video because                                                                                                                                                                                                                                                                         



they knew that it was material evidence.                                                                                                                                                                



                                                                 Carter concedes that, in general, the government does not have a duty to                                                                                                                                                                                                                                                                                   



collect all evidence pertinent to a crime.                                                                                                                                                        See March v. State                                                                            , 859 P.2d 714, 716 (Alaska                                                                    



App. 1993). But Carter asserts that the facts of his case merit an exception to this general                                                                                                                                                                                                                                                                                                      



rule.   



                                                                 There is some authority for the assertion that the police have an affirmative                                                                                                                                                                                                                                  



duty to collect and preserve evidence that they know is important.                                                                                                                                                                                                                                                                 See Klumb v. State                                                                               ,  



712 P.2d 909, 912 (Alaska App. 1986).                                                                                                                                                              But we conclude that this duty does not apply                                                                                                                                                          



to cases like Carter's - cases where the evidence is in the hands of a third party, where                                                                                                                                                                                                                                                                                                               



the defendant knows that the evidence exists (and understands the importance of it),                                                                                                                                                                                                                                                                                                                                  



where the evidence is not ephemeral (                                                                                                                                               i.e., its probative value will not be impaired by a                                                                                                                                                                                         



 short delay in collectingit),                                                                                                    and where the defendant has essentially the same opportunity                                                                                                                                                                               



as the government to subpoena or otherwise obtain the evidence.                                                                                                                                                                                                                                                                



                                                                 Wehaveencountered                                                                                        analogoussituations                                                                                 before. Forexample,                                                                                   in  Bradley  



v.  State, 662 P.2d 993 (Alaska App. 1983), a defendant who was involved in a vehicular                                                                                                                                                                                                                                                                                            



accident was taken to a hospital, where the hospital staff drew his blood and tested it for                                                                                                                                                                                                                                                                                                                      



                                                                                              2  

medical  purposes.                                                                                                                                                                                                                                                                                                                                                                                            

                                                                                                            Three days later,  in accordance with  hospital policy,  the staff  



                                                                                                                                                                                                                                                                                                                                                                        3  

                                                                                                                                                                                                                                                                                                                                                                                                           

destroyed  the  blood  sample  (but  retained  a  record  of  the  test  results).                                                                                                                                                                                                                                                                                                    The  State  



                2                662 P.2d at 994.  



                3               Id. at 995.  



                                                                                                                                                                                                        - 3 -                                                                                                                                                                                                   2466
  


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

obtained the test results (which included the alcohol content of the blood) and later used                                                           



                                                                                                                           4  

those results at the defendant's trial for driving under the influence.                                                         



                                                                                                                                                        

                        The defendant argued that the test results should be suppressed because the  



                                                                                                        5  

                                                                                                                                                        

                                                                                                            But this Court held that the  

State had failed to collect and preserve the blood sample.  



                                                                                                                                                      

State had no duty to collect and preserve the sample because "the blood sample was  



                                                                                                                                                       

taken by and was in the possession of an independent entity ... [,] both the defendant and  



                                                                                                     6  

                                                                                                         

the [S]tate had the opportunity to preserve the sample."  



                                                                                                                                                       

                        Similarly, in Moberg v.Anchorage, 152 P.3d 1170(AlaskaApp. 2007), this  



                                                                                                                                                          

Court held that the government had no duty to direct a hospital to preserve a sample of  



                                                                                                                                                  7  

                                                                                                                                                       

the defendant's blood beyond the hospital's normal seven-day retention period.                                                                        We  



                                                                                                                                                       

relied on the fact that the hospital had drawn the blood sample for medical purposes, that  



                                                                                                                                               

the defendant was aware that he faced DUI charges and the blood sample was relevant  



                                                                                                                                                         

evidence,  and  that  both  the  defendant  and  the  government  had  the  opportunity  to  



                                      8  

                                         

                        

preserve the sample.  



                                                                                                                                               

                        (Compare State v. Ward, 17 P.3d 87 (Alaska App. 2001), where a hospital  



                                                                                                                                                         

drew the defendant's blood for medical purposes and later destroyed it pursuant to  



                                                                                                                     

hospital policy - but the police mistakenly told the defendant that his blood sample  



                                                                                                      9  

                                                                                                                                                    

would remain available until someone asked to test it.                                                    This Court ruled that, once  



                                                                                                                                                        

police affirmatively represented to Ward that there was no time limit for collecting the  



      4     Id. at 994-95.  



      5     Id. at 995.  



      6     Ibid.  



      7      152 P.3d at 1173-74.  



      8     Id. at 1174.  



      9      17 P.2d at 88.  



                                                                          - 4 -                                                                     2466
  


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

evidence, the State was required to honor that representation.                                       That is, the State "was         



obliged   to   make   an   effort   to   ensure   that   Ward's   blood  sample   was   preserved   as  

promised." 10     

                      )  



                                                                                                                                       

                      Carter's case presents circumstances that are analogous to the facts of  



                                                                                                                                     

Bradley and Moberg .  Carter knew that the video existed; the criminal complaint in this  



                                                                                                

case recites that "Carter was observed on recorded security video taking [the victim's]  



                                                                                                                                   

jacket and walking towards the restroom and then leaving the Mission."  As we have  



already explained, the video remained on the Mission's security system hard drive for  



                                                                                                                                 

a number of weeks after this case was filed. During that time, Carter had the same means  



                                                                                                                                      

as the State to obtain a copy of this evidence, either by requesting a copy from the  



                                                                                                                                   

Mission staff or by invoking legal process.  We therefore conclude that the police were  



                                                                            

under no duty to collect or preserve the video.  



                                                                                                                               

                      Finally, Carter argues that he was denied his right of confrontation because  



                                                                                                                                   

the police failed to collect and preserve the video. Basically, Carter argues that his right  



                                                                                                                                    

of confrontation was infringed because government witnesses testified about what they  



                                                                                                                                        

 saw on the video, but the video was not available to test these witnesses' testimony.  



                                                                                                                                  

                      Carter analogizes his case to the situation presented in Lauderdale v. State,  



                                                                                                                                      

 548 P.2d 376 (Alaska 1976), a case dealing with prosecutions for driving under the  



                                                                                                                                            

influence in which the State wishes to offer evidence of the defendant's breath test result.  



                                                                                                                                      

Lauderdale holds that if the State wishes to introduce evidence of breath test results, the  



                                                                                                                                   

 State is required to offer defendants a way to preserve independent evidence of their  



                                                                                                                                 

blood alcohol content - for example, by preserving a sample of the defendant's breath  



                                               

for retesting.  Id. at 381-82.  



                                                                                                                                      

                      But in Nicholson v. State, 570 P.2d 1058, 1064 n. 23 (Alaska 1977), the  



                                                                                                                                       

 supreme  court  described  the Lauderdale  decision  as  resting  on  the  State's  duty  to  



      10   Id. at 89.  



                                                                 - 5 -                                                            2466
  


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

"preserv[e] ... evidence already gathered by the authorities or created by the authorities."                                                                                                                                        



That is not the situation in Carter's case.                                                                  We therefore reject his confrontation clause                                                         



argument based on                                 Lauderdale .   



                  Conclusion  



                                   The judgement of the district court is AFFIRMED.  

                                                                                                                                                                           



                                                                                                          - 6 -                                                                                                      2466
  

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