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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State v. Gonzales (04/20/2007) sp-6119

State v. Gonzales (04/20/2007) sp-6119, 156 P3d 407

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,


) Supreme Court No. S- 12103
Petitioner, ) Court of Appeals No. A-08653
) Superior Court No. 3AN-02-03050CR
v. )
) O P I N I O N
Respondent. ) No. 6119 - April 20, 2007 _______________________________ )
Petition  for  Hearing
          from  the  Court of Appeals of the  State  of
          Alaska,  on  Appeal from the Superior  Court,
          Third  Judicial District, Anchorage,  Michael
          L. Wolverton, Judge.

          Appearances:  Diane  L. Wendlandt,  Assistant
          Attorney  General, Anchorage,  and  David  W.
          M rquez,   Attorney  General,   Juneau,   for
          Petitioner.    Renee   McFarland,   Assistant
          Public  Defender, and Quinlan Steiner, Public
          Defender, Anchorage, for Respondent.

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.

          CARPENETI, Justice.

          I.   In 1992 Andrew Gonzales was accused of sexually abusing
the  ten-year  old  daughter  of his girlfriend.   Following  the
accusation  Gonzales  fled  the  state  and  the  child  required
extensive   psychiatric  hospitalization.    Gonzales   did   not
resurface  for ten years, at which point the state presented  his
case  to  a  grand jury, which indicted Gonzales.   The  superior
court dismissed the case against Gonzales after finding that  the
ten-year pre-indictment delay was not reasonable and had resulted
in actual prejudice.  The court of appeals upheld this dismissal.
We  reverse  because  Gonzaless flight in  combination  with  the
childs   mental health needs justified the pre-indictment  delay.
We remand to the superior court for further proceedings including
a determination of whether remedial sanctions are appropriate due
to  prejudice from lost evidence, and if so, what those sanctions
should be.
     A.   Facts
          On  January  5,  1992  a state trooper  stopped  Andrew
Gonzales for a traffic violation while his girlfriend, D.D.,  and
her  ten-year  old daughter, A.D., were passengers in  the  car.1
The  trooper  noticed sexually explicit drawings inside  the  car
which  depicted  a  young  girl.   Later  that  day  the  trooper
conducted  a  taped  interview of A.D.  and  D.D.,  investigating
whether  A.D. was the girl depicted in the drawings  and  whether
Gonzales had sexually abused A.D.
          In  that  initial interview, A.D. denied that  Gonzales
had ever seen her naked,  touched her private parts, or asked her
to  keep  secrets.  D.D. similarly indicated that she  had  never
seen  or  heard anything that would lead her to believe  anything
was going on between A.D. and Gonzales.
          By  mid-January  the case had been transferred  to  the
Anchorage  Police  Department  and assigned  to  Detective  Linda
Branchflower.  On January 15, Detective Branchflower  interviewed
A.D.  alone.   In that interview A.D. reported that Gonzales  had
sexually abused her.  Detective Branchflower arranged for A.D. to
come  to  the station where the detective recorded an  additional
interview  with  A.D.   During  the  in-station  interview   with
Detective Branchflower, A.D. stated that Gonzales had touched her
genitals  and  touched her with his penis.  A.D.  also  explained
that she did not tell anyone about the abuse because Gonzales had
threatened to hurt her.
          The  next  day the police executed a search warrant  on
Gonzaless  home,   removing,  among other  things,  drawings  and
childrens  clothing  catalogs.  The following  day,  January  17,
Detective  Branchflower interviewed Gonzales.  According  to  the
police  report  of  the  interview, Gonzales  admitted  that  the
drawings found by the troopers were of A.D. but stated that  A.D.
had   not  posed  for  them.   When  asked  directly  about   the
allegations  of  sexual  abuse, Gonzales  invoked  his  right  to
counsel and ended the interview.  Detective Branchflower did  not
arrest   Gonzales  or  instruct  him  to  remain  in  the  state.
Following  the  interview, the police executed  a  second  search
warrant  on  Gonzaless home, retrieving a tape  they  had  missed
during the first search the previous day.
          Gonzales  left the state shortly after being questioned
by  Detective  Branchflower.  He did not inform his  fifteen-year
old  son   who was living with him and dependent on him  that  he
was leaving or where he was going.  Indeed, Gonzales left between
the  time  his son went to bed one night and awoke the next  day.
Gonzales  did not notify his landlord or shut off his  utilities.
He  did  not leave a forwarding address.   And he did not  inform
the police about his move.
          Meanwhile the police responded to a call from  D.D.  in
late January reporting A.D.s upset and aggressive behavior.  D.D.
stated  that she had to hold down A.D. to prevent the  girl  from
hurting  herself or her younger brother, and that A.D. later  got
into  a  water-filled  bathtub while  fully  clothed.   Detective
Branchflower,  learning  about this report  from  the  responding
officer, contacted D.D. and suggested that A.D. receive immediate
psychiatric  care.   A.D. spent much of the next  six  months  in
residential   treatment  at  the  Charter  North  facility,   and
continued  to receive treatment afterwards.  A.D.s final  Charter
North  hospitalization   lasted twenty-one  days  during  January
          Over  the  weeks  and months following  the  accusation
Detective  Branchflower attempted to locate Gonzales by searching
databases  that  would show whether Gonzales had  applied  for  a
drivers  license or had committed a crime in Florida, Nevada,  or
Washington   all  states  where she  thought  Gonzales  might  be
residing.   Detective Branchflower suspended the investigation in
July  1992,  noting  [i]nvestigative leads have  been  exhausted.
Suspects   whereabouts  are  unknown.  Victim   has   significant
psychiatric  trauma due to the sexual abuse.   The  investigation
remained   suspended  for  several  years  although  occasionally
Detective Branchflower checked to see if Gonzales had resurfaced.
          Gonzales   returned   to  Alaska  in   December   2001.
Detective  Kristie  Neddeau  of the Anchorage  Police  Department
resumed   the   investigation  when  she  learned  of   Gonzaless
whereabouts  in  Alaska from a concerned neighbor  claiming  that
Gonzales  was  grooming a child in the neighborhood for  possible
sexual  abuse.   Neddeau  obtained a  search  warrant  to  search
Gonzaless   home  for  child  pornography,  and  officers   found
thousands of images of child pornography.
     B.   Proceedings
          In  September  2002 a grand jury indicted Gonzales  for
four  counts of first degree sexual abuse of a minor,2 two counts
of  second  degree  sexual abuse of a minor,3 and  one  count  of
attempted  first  degree sexual abuse of a minor,4  all  stemming
from  A.D.s  1992  allegations.  The  grand  jury  also  indicted
Gonzales on three counts of distribution of child pornography and
seven  counts of possession of child pornography based  upon  his
conduct  in  2002.  These latter counts are not on appeal  before
          Gonzales moved to dismiss the sexual abuse of  a  minor
charges on the basis of prejudicial pre-accusation delay.  By the
time  the  indictment was returned, the state had lost  all  tape
recordings of the interviews conducted by the state troopers  and
Detective  Branchflower in 1992 except for the initial  interview
of  A.D. in which she denied the abuse.  The state also lost what
Gonzales  alleges to be a videotaped version of the interview  in
which A.D. accused Gonzales.  The state has preserved transcripts
of all the interviews known to be recorded, with the exception of
Detective Branchflowers January 17, 1992 interview of Gonzales.
          The  superior  court conducted a series of  evidentiary
hearings   in  which  Gonzales,  Gonzaless  son,  and   Detective
Branchflower  testified.  The superior  court  issued  a  written
          order granting Gonzaless motion to dismiss the 1992-based charges
on  the basis of pre-accusation delay.  The superior court stated
on the record:
          [T]here was no good reason set forth for  the
          delay.   Im  going to find also that  because
          the  tapes were missing, among[] other  items
          of  evidence . . . that I would have  granted
          the  motion  under Fletcher [v. Anchorage][5]
          to  give an instruction to the jury that they
          would  have presumed that the evidence  would
          have been favorable to the defendant.  In  my
          view that sort of finding . . . is equivalent
          to actual prejudice.
          The  state appealed the ruling to the court of  appeals
which  affirmed the superior court.6  The court of  appeals  held
that the State presented no evidence justifying the delay.7   The
court of appeals also characterized the issue before the superior
court  as  being whether due process was violated when the  state
unreasonably  delayed  indictment, thereby prejudicing  Gonzaless
ability to present a defense.8  In such a circumstance the  court
of  appeals  stated that no lesser sanction  than  dismissal  was
supported by case law.9
          An appellate court reviews a trial courts dismissal of
an indictment for an abuse of discretion.10  We will not overturn
a  decision left to the discretion of the trial court [a]bsent a
definite and firm conviction that the judge made a mistake.11
          We  review  de novo the question of which party  holds
the burden of proof in a motion,12 as well as all other questions
of law.  In ruling on questions of law we adopt the rule that is
most persuasive in light of precedent, reason, and policy.13

     A.   The  Pre-Accusation Delay Test Places  the  Burden  of
          Proof on the Defendant.
          A  defendants pre-accusation or pre-indictment  rights
are  entitled to limited protection under the federal and Alaska
Constitutions.14  The right to a speedy trial is not  implicated
at  all  in  such a case because that right attaches  only  upon
either formal charges or arrest,15 when the defendant experiences
a  restraint  on his liberty or suffers the public obloquy  that
accompanies  formal charges.16  Instead, an individuals  primary
safeguard  against undue pre-indictment delay is the statute  of
limitations  set by the legislature.17  Such statutes  represent
legislative assessments of relative interests of the  State  and
the defendant in administering and receiving justice.18  Gonzales
does not dispute that his indictment fell within the statute  of
limitations.  The remaining safeguard against stale  indictments
is  provided by the due process clauses of both the  Alaska  and
federal constitutions.19
          State due process challenges are analyzed under a two-
part  test which aims to protect[] the accused from improper  or
unreasonable  conduct by the government in  the  bringing  of  a
criminal charge.20  The first part of the test inquires  whether
the delay was reasonable.21  The second part examines the degree
of  prejudice  resulting  from the  delay.22   To  establish  an
unconstitutional pre-indictment delay, the defendant must  prove
both  that the delay was not reasonable23 and that the defendant
suffered  actual prejudice from the delay.24  If  the  defendant
succeeds in meeting both parts of the test, the only sanction is
          Alaska case law requires that the defendant bears  the
burden of proof to demonstrate the absence of a valid reason for
the delay.26 However, once the issue of pre-indictment delay  is
raised,  the  state has the burden to come forward with  reasons
for  the delay.27  This intermediate burden is necessary because
the  reasons  for  the delay are normally within  the  exclusive
knowledge  of  the state.28  When the reasons are advanced,  the
defendant  must show that they do not justify the delay.29   The
defendant also has the burden to prove actual prejudice.30
          In  this case the lower courts did not properly assign
the burden of proof to the defendant, instead placing the burden
on  the state not only to proffer reasons for the delay but also
to  justify  why  the  delay was necessary.   For  example,  the
superior court asked, Wouldnt [Gonzaless fleeing the state]  cut
towards  .  . . lets indict him now in 1992[?] . . . I  mean  if
thats  when  he fled, under those circumstances, why  wait?   In
response  to  the states argument that Gonzaless  flight  was  a
reasonable  reason  for the state to delay  the  superior  court
remarked,  I  dont think [Gonzaless flight] has anything  to  do
with  anything  . . . and Detective Branchflower said  as  much.
She  could have brought the charge. (Emphasis added.)  Later the
superior  court commented, I mean why didnt you go  to  a  grand
jury?  I just, quite frankly, still dont understand.  And  so  I
think thats the real problem and I dont know the answer to it.
          The   court  of  appealss  opinion  characterizes  the
evidence in a way that likewise indicates that the state  failed
to   meet   its  burden.   The  court  summarized  the   factual
conclusions that the superior court could reasonably  have  come
to and concluded, the State presented no evidence justifying the
          In  combination  these statements  indicate  that  the
burden  of proof was misapplied in the lower courts.   When  the
facts  of this case are reexamined under the proper burdens,  we
are compelled to reverse.

     B.   The  Lower  Courts Erred in Finding that the  Ten-Year
          Delay in Gonzaless Indictment Was Unreasonable.
               1.   The   delay   in   indicting   Gonzales   is
                    presumptively  valid because of  his  flight
                    from the state and because of concerns about
                    the welfare of A.D.
          The  record  indicates  that  the  state  offered  two
persuasive  reasons  for  the ten-year delay  between  the  1992
          allegations of child molestation and the 2002 indictment.
First,  Gonzales fled the state and could not be  located  until
2002.   Second,  A.D. was institutionalized  for  a  significant
period  of  time subsequent to the alleged abuse.32 After  these
reasons were proffered, the lower courts should have shifted the
burden  to  Gonzales to show that his flight and concerns  about
A.D. were not reasonable reasons to delay prosecution.  Both  of
the reasons the state mentions  Gonzaless absence from the state
and concerns about the minor   have been found, in isolation, to
justify delay.  We consider each reason in turn.
               (a)  A  defendants flight is a reasonable  reason
                    for the state to delay an indictment.
          Alaska  cases  support the states proposition  that  a
defendants flight is a reasonable cause for the state  to  delay
an indictment.  In Lipscomb v. State,33 the court of appeals held
that  Lipscombs due process rights were not violated by a three-
year  delay  between  his conduct of failing  to  appear  for  a
hearing  and his indictment on the charge because Lipscomb  left
the  state and operated under an assumed name in the intervening
time.34   A bench warrant was issued in Lipscombs name  but  not
entered  into  the  national  computer  systems  as  was  normal
practice.35  A detective did make several unsuccessful inquiries
into  Lipscombs whereabouts.  Lipscomb claimed that  the  police
could  have known about his whereabouts if they had entered  his
warrant  into  the  computer system, but we noted  that  because
Lipscomb was arrested under false names elsewhere, this was  not
necessarily the case. 36
          Gonzales  argues  that his situation is  distinguished
from  Lipscomb  in  several ways.  First, Gonzales  argues  that
Lipscomb truly fled because at the time he left the state he had
already  been indicted for robbery (indeed, Lipscomb  failed  to
appear  at  a  pretrial hearing, leading to  the  pre-indictment
delay  in  charging him with failure to appear).37  In contrast,
Gonzales  argues that there was nothing to indicate to  Gonzales
that  he should or was required to remain in Alaska.  We  reject
that  argument.  Gonzales was aware of the ongoing investigation
and  believed that he needed a lawyer.  Because Gonzales delayed
the states investigation, the case had not yet reached the point
of arrest or indictment.  That he had not yet been indicted does
not make Gonzaless departure any less a flight.
          The  record  also  offers  a plethora  of  reasons  to
characterize  Gonzaless departure as a flight: he left  home  in
the  middle of the night, having never [been] so scared in [his]
life, without knowing where he was going, and  without informing
his  minor son.38  He failed to notify his landlord or shut  off
utilities.  And he subsequently misled his girlfriend D.D. as to
his whereabouts by sending a note suggesting that he was looking
for work in Seattle.
          Gonzales  also  attempts to distinguish  himself  from
Lipscomb on the issues of false identity and thoroughness of the
police  search.   Gonzales maintains that he never  changed  his
identity,  unlike the defendant in Lipscomb, and that the police
failed to follow up on leads that would have taken them to  him.
          Specifically, Detective Branchflower had been told that Gonzales
might  be  in  Las  Vegas with his uncle  Jack  Carother  (where
Gonzales  lived for some months before moving elsewhere  in  the
city).    Detective Branchflower did not contact the  Las  Vegas
police  with  Gonzaless suspected location at the  uncles  home.
Nonetheless  it  seems  that  Gonzales  worked  to  conceal  his
location.   As the state points out, Detective Branchflower  was
in  fact  told that Gonzales had left Alaska a week earlier  and
was  staying  with his uncle for only a few days,  meaning  that
Gonzales  would  have  already moved on by  the  time  Detective
Branchflower  learned  of  the  tip  had  the  information  been
accurate.  This was apparently confirmed by Gonzaless subsequent
false  message to D.D. that he was living in Seattle.  The state
also  points out that Gonzales moved several times in  his  ten-
year  absence and that he often was self-employed or living with
friends, making him more difficult to trace.
          Gonzales  cites Odekirk v. State39 for the proposition
that the state should have done more investigative work in order
for a delay predicated on his absence to be reasonable.  Odekirk
presented  the  question of whether or not  Criminal  Rule  4540
barred   a  defendants  conviction.   In  order  to  make   that
determination the court needed to decide whether to exclude  the
period of Odekirks absence from the state from the speedy  trial
time  limits.  The law provided that a defendant was  considered
absent  (and  thus  the  time did not  run  against  the  state)
whenever  his  whereabouts are unknown and  in  addition  he  is
attempting   to  avoid  apprehension  or  prosecution   or   his
whereabouts  cannot  be determined by due diligence.41   Odekirk
established  that a failure to exhaust every conceivable  method
of  locating  a  defendant  will not establish  a  lack  of  due
diligence  so  long  as the state, employing customary  methods,
continues  to actively seek a defendant.42  However, in  Odekirk
the  court  found that the state did not exercise due  diligence
when no effort was made to trace Odekirk through the military or
to  discover  where  it sent his personal effects,  particularly
given that Odekirks commanding officer had called the police  to
warn of Odekirks pending discharge.43
          Odekirk   is   distinguishable  on  several   grounds,
including that Criminal Rule 45 does not apply to pre-indictment
delay.44  Moreover, the tip that Gonzales was in Las Vegas  with
his  uncle  was not entitled to the same weight as the  evidence
overlooked  in  Odekirk.   This  is  particularly  true  because
Detective Branchflower received multiple conflicting reports  as
to  Gonzaless  whereabouts.  In addition, the  circumstances  of
Gonzaless  departure are significantly more  incriminating  than
those  in  Odekirk.  Odekirks departure came after  the  initial
charges  brought  against him had been dismissed,  when  it  was
uncertain  whether  more charges were  to  come,  and  when  his
military  service was up.45  Gonzales had no similar  reason  to
expect that his investigation was going to be dismissed, and his
actions in leaving suddenly in the middle of the night are  much
more consistent with flight.
          Finally,  Gonzales argues that the length of delay  in
his  case  exacerbates any ordinary concerns  of  pre-indictment
          delay including faded memories and difficulties in locating
witnesses,  making  an otherwise reasonable delay  unreasonable.
Our  case  law  has not emphasized the length of  pre-accusation
delay.  As the court of appeals stated here, The primary concern
of the rule against unreasonable pre-accusation delay is not the
length  of the delay, but the harm to the defendants ability  to
present a defense.46  Nonetheless, in Mouser that proposition was
used  to  explain  that  even a relatively short  pre-accusation
delay could violate a defendants rights,47 and no case that  has
come  before us has approached the length of the delay at  issue
here.48   We  have  emphasized  the  continuing  nature  of  the
investigations  during periods of delay and have cautioned  that
continued or long term inactivity or a pattern of lack of prompt
investigation of cases might warrant our reconsideration of such
periods.49 However, because the delay here was caused largely by
the actions of the defendant, the ten-year delay was nonetheless
          In  sum, the state presented a valid reason for delay,
and  the defendant did not adequately rebut that presumption  of
               (b)  Concerns  about the welfare of A.D.  justify
          In  Yarbor v. State,50 we held that a seven-month pre-
indictment  delay  did  not violate the defendants  due  process
rights  because it was not unreasonable for the  state  to  wait
three  months for the mother of a sexual abuse victim to  decide
whether  or  not  to  press charges. Yarbor performed  lewd  and
lascivious  acts  towards a ten-year old child in  August  1973.
Between  August and December of that year the district attorneys
office reviewed the case, and in December a formal complaint was
prepared  for  the  minors mother to  sign.51   The  mother  was
notified several times a month that the complaint was ready  for
her  signature, but she did not sign until March  of  that  next
year.52  Two days later, Yarbor was served with the complaint.53
This  court found that the states decision to wait three  months
because  of the mothers hesitation was not unreasonable.54   The
court  noted that the emotional effects to the child, injury  to
the  childs reputation, and family disruption[] all  had  to  be
considered in [the mothers] decision.55
          In Burke v. State,56 we expanded on the justifiability
of  delay in cases involving sexual abuse of a minor.   In  that
case  the  accused was charged with statutory rape  against  his
stepdaughter.  We explained that [a]lthough the mother  in  this
case  was  not  reluctant, a concern by the  district  attorneys
office  over the advisability of bringing charges of a similarly
serious nature also suggests that the effects on the victim  and
her  family are factors which must be carefully weighed  by  the
district attorney.57
          Case law thus shows that consideration for the victims
situation  is  an  acceptable reason for  pre-indictment  delay.
Indeed,  it  is  possible that the investigators had  even  more
reason   for  the  delay  in  the  present  case  because   A.D.
necessitated    such   extensive   psychiatric   hospitalization
          allegedly due to her trauma.  Furthermore, Burke and Yarbor each
presented  a case in which any testimony from the victims  could
be   put  to  immediate  use  because  the  whereabouts  of  the
perpetrator  was  known.   In contrast,  Detective  Branchflower
could  reasonably hesitate even longer before bringing  A.D.  in
front of a grand jury given that Gonzales could not be found.
          The superior court acknowledged that further testimony
would have been necessary from A.D. for the grand jury to indict
Gonzales, but faulted the state for not presenting evidence that
A.D.  was unable to have testified in 1992 (presumably following
her  release from the hospital).  The superior court  stated  on
the record, this is a case that was ready to go and it didnt go,
and   problems   have   resulted.    We   disagree   with   that
characterization.   Given  A.D.s  emotional  fragility  and  the
defendants absence from the state, the state acted reasonably by
delaying.  By the time that A.D. was released from the hospital,
Gonzalez had fled.  The superior court abused its discretion  in
determining that the states decision to delay was unreasonable.
     C.   Determinations  of Prejudice Should  Be  Made  by  the
          Superior Court on Remand.
          Because  we  hold  that the pre-indictment  delay  was
reasonable,  the  defendant cannot succeed in establishing  both
prongs  of  the  pre-indictment delay  test  and  therefore  the
indictment may not be dismissed because of pre-indictment delay.
But  a question remains as to what, if anything, should be  done
on account of the lost tape recordings.  Gonzales argues that he
has  been prejudiced because the state lost the tapes to  eleven
interviews  related to the charges against him.   Two  of  these
tapes, Gonzales claims, are crucial to a jurys determination  of
credibility.    Of   these  eleven  interviews,   Gonzales   has
transcripts of every one except his own interview with Detective
Branchflower which took place on January 17, 1992.  This is  one
of  the  interviews that Gonzales describes as crucial, and  the
state  concedes that there was a tape to the interview that  has
since been lost.  The other such tape is Detective Branchflowers
in-station  interview  of A.D. in which  A.D.  first  makes  the
accusations.   Gonzales  states that this  is  a  video-recorded
interview,  as were the other interviews conducted that  day  of
M.D. (A.D.s brother) and D.D.58
          It  is unclear that the interview was recorded with  a
video  recorder, as Detective Branchflowers police report  notes
suggest, as Gonzalez asserts, and as the state seems to concede.59
Remarks  in the transcript of the interviews indicate  that  the
interview  was  an  audio recording, not  video.  At  one  point
Detective Branchflower instructed A.D. You have to say yes or no
because  my tape recorder can hear you pretty good but cant  see
you  when  you shake your head, OK?  At another point  Detective
Branchflower told A.D. Youre gonna have to talk real big for  my
tape  recorder.  Finally, when Detective Branchflower asks  A.D.
whether  or  not  Gonzales  owned a  video  camera,  instead  of
pointing  to  the one that Gonzales asserts was in the  room  to
give  an  example, Detective Branchflower said, Does he  have  a
video  camera?   Do you know what a video camera is?   Something
that  can  take a movie of you?  The transcripts show a  similar
          likelihood that audiotape was used to interview M.D. later that
same  afternoon.60  This is important because one  of  Gonzaless
most  compelling arguments was that the videotape  would  supply
information  about  body language and subtle  cues  as  well  as
showing what A.D. did with the anatomical dolls she was using to
describe the assault.  Accordingly, on remand the superior court
should determine whether the interview was recorded with a video
or audio recorder.
          The superior court addressed this missing evidence  in
the  context  of determining actual prejudice under  the  second
prong  of  the  test for pre-indictment delay.  It  found  that:
because  the tapes were missing, among[] other items of evidence
.  .  .  I  would  have  granted the motion under  Fletcher  [v.
Anchorage][61] to give an instruction to the jury that they would
have presumed that the evidence would have been favorable to the
defendant.   In my view that sort of finding . . . is equivalent
to  actual prejudice.62  This conclusion conflates two different
standards and misunderstands the role of a Fletcher instruction.
          In  Fletcher the court of appeals provided guidance to
courts  regarding   whether  and how  to  apply  sanctions  when
evidence  has  been  lost in preparation for  a  case.63   Under
Fletcher, the imposition of sanctions and what sanctions  should
be  applied  is  to  be  determined by weighing  the  degree  of
culpability involved on the part of the state, the importance of
the  evidence  which has been lost, and the  evidence  of  guilt
which  is  adduced at trial . . . . [W]here 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.64  Fletcher also stated a  policy  that  [t]he
remedy of dismissal is a severe sanction which is generally  not
justified  unless  there  has  been  deliberate  action  by  the
government or significant prejudice to the defendant.65
          Almost   by  definition,  Fletcher  asks  a  different
question  than  prong  two  of the  test  for  prejudicial  pre-
indictment delay.66  On the one hand, the second prong of the pre-
indictment  delay  test  recognizes  that,  because  the   state
ordinarily  owes  the  accused  no  duty  to  indict   promptly,
unjustified  delay  by  itself (that is,  absent  a  showing  of
prejudice), cannot raise due process concerns.  The second prong
thus  requires  the  accused to shoulder the further  burden  of
proving  that  the  states unreasonable  delay  actually  caused
serious prejudice  that is, prejudice exposing the accused to an
intolerable  risk  of being unfairly convicted.   On  the  other
hand,  the  Fletcher test recognizes that the state  has  a  due
process  duty  to preserve physical evidence.   Thus,  when  the
state  breaches this duty, Fletcher requires the prosecution  to
bear  the  burden  of proving that the failure to  preserve  the
evidence  was  in  good  faith and that the  defendant  has  not
suffered  prejudice.67   Unlike the pre-indictment  delay  test,
which  mandates dismissal if the criteria are met, the  Fletcher
test  leaves the trial court with the discretion to apply a wide
array  of  remedies  to cure any prejudice  resulting  from  the
missing  evidence,  including  less  drastic  measures  like   a
curative  instruction to the jury. While these differences  made
          it inappropriate for the superior court to equate Fletchers
standard  for  giving  a  curative  instruction  with  the  pre-
indictment  delay  tests  requirement  that  the  accused  prove
serious  prejudice, the superior court will now need to consider
Fletcher  on  remand to determine what sanctions,  if  any,  are
warranted in light of the states loss of evidence here.
          The  philosophy  underpinning Fletcher  is  that  some
forms of prejudice can be cured and that a lack of some piece of
evidence  is not generally fatal to a case.68  As the  court  of
appeals  found  in  State v. Norman,69 when the  government  has
destroyed  evidence through negligence . . . a court should  not
dismiss   the   charges   against  the   defendant   unless   it
affirmatively appears that the lost evidence would have  created
a  reasonable doubt concerning the defendants guilt.  Similarly,
this  court held in Thorne v. Department of Public Safety70 that
the  states  failure  to  preserve  a  videotape  of  defendants
sobriety test should be cured by instructing the hearing officer
to  presume  the videotape would have been favorable to  Thorne.
On  remand,  the superior court should determine what sanctions,
if any, are required in light of the evidence lost in this case.

          V.   CONCLUSION
          We  REVERSE  the decision of the court of  appeals  and
REMAND  to  the superior court for further proceedings, including
whether sanctions under Fletcher are appropriate and, if so, what
they should be.
     1    Gonzales is not related to A.D.

     2    AS 11.41.434(a)(1).

     3    AS 11.41.436(a)(2).

     4    AS 11.41.434(a)(1) & AS 11.31.100.

     5    650 P.2d 417, 418 (Alaska App. 1982).

     6    State v. Gonzales, 121 P.3d 822 (Alaska App. 2005).

     7    Id. at 826.

     8    Id. at 828.

     9    Id.

     10    Sheldon v. State, 796 P.2d 831, 834 (Alaska App. 1990).

     11     City  of Kenai v. Ferguson, 732 P.2d 184, 190 (Alaska

     12    Flynn v. E.I. du Pont de Nemours & Co., 988 P.2d 97, 98
(Alaska 1999).

     13    Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).

     14     See  State v. Mouser, 806 P.2d 330, 336 (Alaska  App.

     15    United States v. Lovasco, 431 U.S. 783, 788-89 (1977);
United  States v. Marion, 404 U.S. 307, 320-21 (1971);  Burke  v.
State, 624 P.2d 1240, 1242-43 n.1 (Alaska 1980); Yarbor v. State,
546 P.2d 564, 567 (Alaska 1976).

     16    Marion, 404 U.S. at 320.

     17    Marks v. State, 496 P.2d 66, 68 (Alaska 1972).

     18    Marion, 404 U.S. at 322.

     19     U.S.  Const. amend. XIV; Alaska Const.  art.  I,   7;
Lovasco, 431 U.S. 789; Burke, 624 P.2d at 1242; Coffey v.  State,
585 P.2d 514, 519 (Alaska 1978).

     20    State v. Mouser, 806 P.2d 330, 336 (Alaska App. 1991).

     21    Lipscomb v. State, 700 P.2d 1298, 1309-10 (Alaska App.

     22    Id.

     23     The state argues that we should explicitly adopt  the
prevailing  standard in most federal jurisdictions: a presumption
that the state is acting reasonably in cases of delay unless  the
defendant  can  show that the state is acting in bad  faith.   We
decline to adopt that approach at this time.

     24    Mouser, 806 P.2d at 336.

     25     Alexander  v. State, 611 P.2d 469, 475 (Alaska  1980)
([Remand to determine pre-accusation delay] will either result in
a  dismissal  of the conviction or a finding of no pre-indictment

     26    Coffey v. State, 585 P.2d 514, 519-20 (Alaska 1978).

     27     Mouser,  806 P.2d at 336 (quoting York v. State,  757
P.2d 68, 71 (Alaska App. 1988)).

     28    Coffey, 585 P.2d at 520 n.19.

     29    Mouser, 806 P.2d at 336.

     30    Id.

     31     State  v.  Gonzales, 121 P.3d 822, 826  (Alaska  App.

     32     The  state at times argued a third reason   that  the
state  was  waiting  for better evidence  to  materialize.   This
reason  has  the least support from the record, and we  join  the
court  of appeals in addressing these concerns in the context  of
A.D.s emotional state.

     33    700 P.2d 1298 (Alaska App. 1985).

     34    Id. at 1309-10.

     35    Id.

     36    Id.

     37    Id.

     38    As a result his son became a ward of the state, living
in a state home and foster homes.

     39    648 P.2d 1039 (Alaska App. 1982).

     40    Alaska R. Crim. P. 45 sets out speedy trial guidelines,
which  are not directly applicable to Gonzales because his  right
to a speedy trial had not attached at the pre-indictment stage.

     41    Odekirk, 648 P.2d at 1040 n.1 (quoting Alaska R. Crim.
P. 45).

     42    Id. at 1043.

     43    Id.

     44    See Yarbor v. State, 546 P.2d 567 (Alaska 1976) (right
to   speedy  trial  does  not  attach  until  defendant  formally

     45    Odekirk, 648 P.2d at 1043-44.

     46    Gonzales, 121 P.3d at 825 (citing State v.  Mouser, 806
P.2d 330, 336 (Alaska App. 1991)).

     47    Mouser, 806 P.2d at 336.

     48    See Burke v. State, 624 P.2d 1240 (Alaska 1980) (five-
month  delay);  Alexander v. State, 611 P.2d  469  (Alaska  1980)
(ninety-one  days); Prenesti v. State, 594 P.2d 63 (Alaska  1979)
(eight months); Coffey v. State, 585 P.2d 514 (Alaska 1978) (four
months); Yarbor, 546 P.2d 564 (seven months); P.H. v. State,  504
P.2d  837  (Alaska  1972) (seven and one-half months);  Marks  v.
State, 496 P.2d 66 (Alaska 1972) (eight months);  McKay v. State,
489  P.2d 145 (Alaska 1971) (two and one-half months).  See  also
United  States v. Lovasco, 431 U.S. 783 (1977) (eighteen months);
United  States v. Marion, 404 U.S. 307 (1971) (over three years);
Lipscomb  v.  State,  700  P.2d 1298 (Alaska  App.  1985)  (three

     49    Burke, 624 P.2d at 1245.

     50    546 P.2d 564, 567 (Alaska 1976).

     51    Id. at 565.

     52    Id. at 565-66.

     53    Id. at 566.

     54    Id. at 567.

     55    Id.

     56    624 P.2d 1240 (Alaska 1980).

     57    Id. at 1246.

     58    In Gonzaless initial Memorandum in Support of Motion to
Dismiss  Indictment dated December 18, 2002, Gonzales  separately
identifies a videotaped interview with A.D., M.D. and  D.D.  from
January 15, 1992 from the taped interviews dated January 17, 1992
on the transcripts, suggesting two rounds of interviews with A.D.
and  M.D.  in  the  police  station two  days  apart.   Detective
Branchflowers   testimony  and  the  content  of  the   interview
transcripts  reveal  that  the  transcripts  were  mislabeled  as
January 17th when the interview in fact occurred on January 15th.
The state made this point in States Opposition to Gonzales Motion
to  Dismiss before the superior court.  Gonzales seems to concede
the  issue in his Supplemental Briefing: Motion to Dismiss where,
following  a  hearing  that  included  testimony  from  Detective
Branchflower, he argues that Detective Branchflower did not  even
attempt[]  to  re-interview  A.D.  following  the  January   15th
interview.  Finally, from his citation in his brief, it is  clear
that  Gonzales considers the interview transcribed in the excerpt
90-96 to be part of the videotaped interview of January 15th.

     59     The  state  argued to the court in  its  supplemental
briefing  on the motion to dismiss that The video tape  defendant
refers  to  is that of A.D.  While the video tape was  lost,  the
audio tape was transcribed and produced to defendant.

     60    Detective Branchflower similarly instructed M.D. as if
there was an audio recorder only.  Detective Branchflower said to
M.D.,  Ok.  Youre shaking your head no. You know  what,  my  tape
recorders  got real good ears but it cant see you when you  shake
your head so you have to say yes or no.

     61    650 P.2d 417, 418 (Alaska App. 1982).

     62    Quoted in State v. Gonzales, 121 P.3d 822, 824 (Alaska
App. 2005).

     63    650 P.2d at 418.

     64    Id. at 418 (quoting Putnam v. State, 629 P.2d 35, 43-44
(Alaska 1980)).

     65    Id.

     66    See supra at Part IV.A. (test for pre-indictment delay
looks  to  whether delay was reasonable and, if  not  reasonable,
whether delay resulted in actual prejudice to defendant).

     67    650 P.2d at 418.

     68    Id.

     69    875 P.2d 775, 777 (Alaska App. 1994).

     70    774 P.2d 1326, 1331 (Alaska 1989).

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