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Evans v. State (5/28/2010) ap-2265

Evans v. State (5/28/2010) ap-2265

     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

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MICHAEL C. EVANS,                  
                    Appellant,          Court  of Appeals No.  A-
               v.                          Trial Court No. 3KN-06-
                                   2005 Cr
STATE OF ALASKA,                   
                    Appellee.                      O  P  I  N   I
End of Caption                     O  N
                                         No. 2265    May 28, 2010
          Appeal  from the Superior Court,  Third  Judi
          cial District, Kenai, Harold M. Brown, Judge.

          Appearances:    Marjorie  Allard,   Assistant
          Public  Defender, and Quinlan Steiner, Public
          Defender,   Anchorage,  for  the   Appellant.
          Kenneth  M.  Rosenstein,  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.

          MANNHEIMER, Judge.

          The   defendant,  Michael  C.  Evans,  was  tried   and
convicted  of  various counts of burglary,  theft,  and  criminal
mischief,  stemming  from a series of burglaries  committed  near
Sterling  and  Soldotna  in the summer  of  2006.   The  question
presented  in this appeal is whether a mistrial should have  been
declared  when, in the middle of Evanss trial, the State  tardily
disclosed information concerning exculpatory statements given  by
one of Evanss co-defendants, Joshua Kartchner.
          Based  on  the pre-trial disclosures made by the  State
and  statements  made  by  
the prosecutor, it appeared (when Evanss trial began) that Kartchner was cooperating with the State, that he had concluded a plea agreement with the State, that he had agreed to submit to a police interview, and that he would be testifying against Evans at trial. Based on this information, when Evanss defense attorney delivered her opening statement at the beginning of the trial, she attacked Kartchners credibility.
However, the State did not call Kartchner to the stand during the first week of Evanss trial. Then, on Monday of the second week of Evanss trial, the prosecutor gave the defense attorney an audio recording of the interview that Kartchner had given to the police three weeks earlier (i.e., two weeks before Evanss trial began). The prosecutor announced that the State no longer intended to call Kartchner as a witness and that, in fact, the defense attorney might want to call Kartchner as witness, because Kartchners police interview was potentially exculpatory.
Under Alaska Criminal Rule 16(b)(1)(A)(iii), the government is required to automatically disclose [a]ny ... recorded statements ... made by a co-defendant. Thus, Evanss attorney should have received a copy of Kartchners police interview before the trial began. The prosecutor conceded to the trial judge that she had no good explanation for the States failure to disclose this material earlier.
Moreover, in Kartchners police interview, he stated that he had spoken to another co-defendant who was cooperating with the State, Jerome Himmel, about the crimes charged in this case. According to Kartchner, when Himmel described one of the charged burglaries, he named three people as having participated in that burglary and Evans was not among them. Kartchner also offered an exculpatory explanation for Evanss later possession of some of the stolen property: Kartchner said that he witnessed Evans purchase a large red tool box from Himmel for $300.
As noted above, the trial prosecutor indicated (when she turned the audio recording of this interview over to the defense attorney) that Kartchners statements were potentially exculpatory. And on appeal, the State does not contest that Kartchners statements were exculpatory evidence within the meaning of Criminal Rule 16(b)(3), which requires the government to disclose ... any material or information within the prosecuting attorneys possession or control which tends to negate the guilt of the accused.
Instead, the issue litigated in the superior court, and the issue litigated now on appeal, is whether Evans was prejudiced by the late disclosure of this information so as to require the trial judge to declare a mistrial.
Under Bostic v. State, 805 P.2d 344, 348-49 (Alaska 1991), as interpreted by this Court in Jurco v. State, 825 P.2d 909, 916-17 (Alaska App. 1992), once the defendant articulates one or more plausible ways in which the defense case was prejudiced by the States tardy, mid-trial disclosure of information that should have been disclosed earlier under Criminal Rule 16(b), the defendant is entitled to a mistrial unless the State affirmatively proves that the defendant was not prejudiced in the manner claimed.
Evans might not have been prejudiced by the late disclosure of Kartchners exculpatory statements if Evans had been able to call Kartchner as a witness and examine him concerning these statements. However, when Evanss attorney tried to call Kartchner as a defense witness at trial, Kartchner claimed the Fifth Amendment privilege. (Even though Kartchner had negotiated a plea agreement with the State, he had not yet actually pleaded guilty pursuant to that agreement.) The trial judge upheld Kartchners claim of privilege, thus making him unavailable as a witness.
(We express no opinion on the correctness of this ruling.)
Evanss attorney told the trial judge that, if Kartchners claim of privilege was upheld, then Evans desired a mistrial. The defense attorney declared that if the exculpatory nature of Kartchners interview had been revealed in a timely fashion (i.e., before Evanss trial began), the defense attorney [might] have done a lot of different things. In particular, the defense attorney suggested that she would have sought or agreed to a continuance of the trial until after Kartchner pleaded guilty (pursuant to his plea bargain with the State), so that Kartchner would be available as a witness. The trial judge denied the requested mistrial.
The trial judge noted that, even though the State failed to disclose the exculpatory contents of Kartchners police interview until the middle of trial, the State did notify Evanss defense counsel, before trial, of the fact of the interview (specifically, that Kartchner had agreed to cooperate with the government and that he had agreed to submit to a police interview). In essence, the trial judge concluded that because the defense attorney knew that Kartchner had been, or was about to be, interviewed by the police, and because the defense attorney chose to begin the trial even though the State had not yet disclosed the contents of this interview, the defense attorney assumed the risk that Kartchners interview might contain exculpatory information.
We reject this analysis. As we have explained, Rule 16(b)(1)(A)(iii) required the State to disclose the contents of Kartchners police interview to Evanss attorney, without request and without regard to whether that interview was exculpatory to Evans. The fact that the interview was, in fact, exculpatory only reinforced this duty of disclosure because, given the exculpatory nature of Kartchners statements, the State was additionally obliged to disclose the interview under Rule 16(b)(3).
Conceivably, there might be times when a defense attorney knows that a witness has been interviewed, and knows that the transcript or audio record of that interview has not yet been produced, but nevertheless expressly decides to begin the trial without the transcript or audio record. In such instances, it might be fair to conclude that the defense attorney has assumed the risk that there might be discrepancies between the precise content of the interview and whatever summary or characterization of the interview has previously been offered.
But the facts of Evanss case do not lend themselves to this sort of analysis or conclusion. It is true that Evanss attorney was notified that Kartchner had reached an agreement with the State, and that Kartchner had agreed to be interviewed by the police. Thus, the defense attorney was aware, when Evanss trial began, that a police interview with Kartchner had either already taken place or was imminent. But, in context, the implication was that the contents of Kartchners interview would support the governments case against Evans.
Because Criminal Rule 16(b)(3) requires the State to notify defendants when the State obtains exculpatory information, and because the State had not notified Evanss attorney of any exculpatory information, Evanss attorney could justifiably proceed under the assumption that Kartchner had not made any exculpatory statements during his police interview. This assumption turned out to be wrong and the defense attorney was laboring under this mistaken assumption because the State violated its duty of disclosure under Rule 16(b).
If the defense attorney had known that Kartchner was apparently prepared to assert that Evans was innocent of at least one of the burglaries and thefts, then it seems likely that the defense attorney would have taken steps to make sure that Kartchner was available as a witness at Evanss trial.
As we have explained, when this issue was litigated in the superior court, Evanss attorney told the trial judge that she would have asked for, or agreed to, a continuance of Evanss trial until after Kartchner completed his plea bargain with the State and actually changed his plea thus potentially resolving the Fifth Amendment issues that were currently making Kartchner unavailable as a witness. And, from the record of Evanss trial, it is clear that if the defense attorney had been able to call Kartchner to the stand and examine him about his exculpatory statements, the defense case would have looked much different.
For these reasons, we conclude that the State failed to meet its burden under Bostic of disproving prejudice. Accordingly, the trial judge should have granted Evanss motion for a mistrial. The judgement of the superior court is REVERSED.

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