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Stiffarm v. State (11/28/2014) ap-2437

Stiffarm v. State (11/28/2014) ap-2437


         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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                                                               Court of Appeals No. A-11198  

                                  Appellant,                 Trial Court No. 3KN-09-1509 CR  


                                                                       O  P  I  N  I  O  N 


                                  Appellee.                    No. 2437 - November 28, 2014  

                 Appeal  from  the  Superior  Court,  Third  Judicial  District,  


                 Kenai, Carl Bauman, Judge.  

                 Appearances:   Andrew   Steiner,   Bend,   Oregon,   for   the  

                 Appellant.  Diane L. Wendlandt, Assistant Attorney General,  

                 Office of Special Prosecutions and Appeals, Anchorage, and  


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


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

                 Hanley, District Court Judge. *  


                 Judge ALLARD.  

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

Constitution and Administrative Rule 24(d).  

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

                   Following a jury trial, Anthony W. Stiffarm Jr., a prisoner at Wildwood  

Correctional Center, was convicted of three counts of second-degree sexual assault for  

sexually assaulting a woman in the prison stairwell.  The sole issue at trial was identity  


- whether the assaults were committed by Stiffarm or by someone else.  

                   Stiffarm  raises  three  main  claims  on  appeal,  all  of  which  relate  to  the  

victim's identification of Stiffarm as her assailant. First, Stiffarm argues that the victim's  


identification of him based on a single photograph shown to her by corrections officers  


shortly after the assault should have been excluded as unreliable because it was the  

product of an "unnecessarily suggestive" identification procedure.  Second, he argues  

that the court erred by instructing the jury at the State's request that this single-photo  


identification procedure was "legal and lawful."  Third, he argues that the court violated  


his constitutional rights and his right to discovery under Alaska Criminal Rule 16 by  

refusing to compel the Department of Corrections to produce information about other  

inmates housed in the prison at the time of the sexual assaults, including booking photos,  

so that he could use that information to challenge the reliability and accuracy of the  


victim's identification of him.  

                   We conclude that additional proceedings are required to determine whether  


Stiffarm was entitled to the discovery he requested from the Department of Corrections  


and, if so, whether the court's refusal to compel that discovery prejudiced Stiffarm's  

case.  Because the superior court's resolution of these issues may entitle Stiffarm to a  

new trial, we conclude that it is premature to address Stiffarm's other claims of error.  

         Factual and procedural background  

                   K.B.  worked  as  a  tutor  in  Building  Ten  of  the  Wildwood  Correctional  

Center, a medium and minimum security facility in Kenai.  At approximately 8:50 a.m.  


on  July  22,  2009,  shortly  after  K.B.  arrived  at  work,  an  inmate  assaulted  her  on  a  

                                                          - 2 -                                                    2437

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

stairwell landing between the second and third floors in Building Ten.  The inmate  

placed his hand on her genital area and squeezed her breast underneath her bra.  

                    After assaulting K.B., the inmate climbed up the stairs to the third floor,  

brushing by two other inmates who were descending the stairs to the second floor.  These  


other inmates discovered K.B. on the landing, visibly shaken and in a state of shock.  


Neither of the two inmates knew the name of the inmate who had brushed by them on  


the stairs.  

                    K.B. went to the shift supervisor's office to report the assault.  She was  


crying and upset.  When asked to describe her assailant, she described him simply as a  


"round-faced  native."    While  in  the  shift  supervisor's  office,  K.B.  looked  at  a  wall  


display of the booking photographs of all 500 inmates in Wildwood, including the 256  


inmates in Building Ten where the assault took place.  K.B. was unable to focus and  

unable to identify anyone.  

                    After a few minutes, K.B. was moved to a break room.  Because some of  


the corrections officers suspected that Stiffarm might be the assailant, primarily because  


of his prior criminal history and the fact that he fit the general description of a "round- 


faced native," Stiffarm's booking photograph was taken off the wall display and shown  


individually to K.B. to see if she could identify him as the man who assaulted her.  K.B.  


immediately identified the 1" x 1" booking photograph of Stiffarm as depicting her  

assailant.  K.B. was not shown photographs of any other inmates.  

                    The prison staff then reviewed a surveillance video that covered part of the  


third-floor hallway and part of the doorway leading to the stairwell.  (At the time of the  


assault, there were no surveillance videos in the stairway itself.)   This video showed  


various inmates walking through the hallway.  At about 8:48:48 a.m., Stiffarm appears  


to enter the third-floor stairwell.  A little over a minute later, at 8:50:03 a.m., the two  


other inmates enter the stairwell.  Twenty-three seconds later, at 8:50:23 a.m., Stiffarm  


                                                              - 3 -                                                         2437

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

appears to exit the third-floor stairwell, walk down the hallway, and enter his room.  


Twenty-six  seconds  later,  at  8:50:59  a.m.,  one  of  the  other  two  inmates  exits  the  


stairwell, walks down the hall, and reports the assault to a corrections officer. At 8:51:41  


a.m., the corrections officer can be seen running toward the stairwell entrance.  

          The discovery dispute  

                    Early in the pretrial litigation of this case, Stiffarm filed a motion under  

Alaska Criminal Rule 16 asking the trial court to compel the Department of Corrections  


to disclose "a  list  of  inmates at Wildwood Correctional Center, Building 10 ... with  


corresponding booking photos and biographical data including ethnicity, height, weight,  


eye,  and  hair  color."    Stiffarm  argued  that  he  needed  this  information  to  properly  

evaluate the procedures used to identify him as K.B.'s assailant, and to challenge the  

accuracy and reliability of K.B.'s identification.  

                    The  Department  of  Corrections  opposed  Stiffarm's  discovery  request,  

claiming that the request was unduly burdensome and that compiling this information  

would take thirteen hours of labor.  The Department also asserted, without any citation  


to authority, that booking photographs are "generally confidential and not subject to  


general release."  

                    The district attorney's office also opposed the discovery request, but on a  


different ground.  The prosecutor argued that the surveillance video was dispositive of  


the issue of the assailant's identity, and that Stiffarm's discovery request, which was  

based on the need to challenge the victim's identification, was therefore "unnecessary."  

                    The superior court denied Stiffarm's discovery motion, finding that the  


discovery request was a "fishing expedition" and  was overly broad and unduly intrusive.  

                    Stiffarm later renewed his discovery motion on the eve of trial, arguing that  


he  was  unable  to  properly  defend  against  K.B.'s  identification  of  him  without  this  

                                                            - 4 -                                                       2437

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

information.  The court initially proposed a compromise solution, giving the defense the   

option of requesting production of a limited number of the                                          booking photographs (a  

remedy Stiffarm argued was inadequate).  But the court ultimately abandoned even this   

limited option as "too difficult" given the nearness of the trial, and the court instead                               

denied Stiffarm's renewed motion as untimely.  

           Stiffarm's motion to suppress K.B.'s identification  

                      Prior to trial, Stiffarm also moved to exclude the evidence of K.B.'s out-of- 

court identification of him on the ground that the single-photo procedure the Department  


of  Corrections  used  was  unnecessarily  suggestive  and  resulted  in  an  unreliable  


                      Following an evidentiary hearing, the superior court agreed that the single- 

photo  identification  procedure  used  by  the  corrections  officers  was  unnecessarily  

suggestive.  The court found that the corrections officers had used the type of flawed  


identification  procedure  that  could  lead  to  an  unreliable  identification  and  taint  the  

victim's memory, such that future identifications would also be unreliable.1  


                      After ruling that the identification procedure was unnecessarily suggestive,  


the trial judge applied the factors the United States Supreme Court articulated in Neil v.  

             2                                          3  


               and Manson v. Brathwaite  to determine whether the victim's identification was  

nevertheless sufficiently reliable under the totality of the circumstances to be admissible.  


The trial judge concluded that, given K.B.'s opportunity to view her assailant and the  

immediacy of her identification, the Biggers/Brathwaite factors -  combined with the  

           1    See, e.g., Tegoseak v. State, 221 P.3d 345, 350-53 (Alaska App. 2009).  

           2    409 U.S. 188, 199-200 (1972).  

           3    432 U.S. 98, 99 (1977).  

                                                                  - 5 -                                                            2437  

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

independent corroborating evidence provided by the surveillance video - weighed in  


favor of admitting the identification.  

          The trial and the jury's verdict  

                    At trial, Stiffarm did not contest the allegation that K.B. had been sexually  


assaulted.  The sole question for the jury was whether the State had proved Stiffarm's  

identity as K.B.'s assailant beyond a reasonable doubt.  

                    To  prove  its  case,  the  State  relied  primarily  on  the  surveillance  video,  


K.B.'s identification of Stiffarm, and the identifications of the other two inmates who had  


been in the stairwell.  

                    In  response,  the  defense  argued  that  the  surveillance  video  was  not  


dispositive of Stiffarm's identity as the assailant because the time-lapse video captured  


only part of the stairwell entry and only fragments of time. The defense asserted that the  


real assailant entered and exited the stairwell without being captured on the video.  The  

defense also argued that K.B.'s identification was unreliable because it was the product  


of an overly suggestive identification procedure that had irreparably tainted her memory  

of the assailant.  Lastly, the defense argued that the identifications by the two inmates  

were inherently unreliable because the identifications were made after correctional staff  


had already concluded Stiffarm was the assailant.  

                    After requesting playbacks of K.B.'s testimony and the surveillance video,  


the jury found Stiffarm guilty of the three counts of second-degree sexual assault.  

                    This appeal followed.  

                                                            - 6 -                                                       2437

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

           Why we conclude that the trial court must reconsider whether Stiffarm was                   

          entitled to the discovery he requested from the Department of Corrections                 

                    As noted above, Stiffarm asked the superior court to compel the Department  

of Corrections to provide him with booking photographs and other discovery concerning  


inmates housed in Building Ten at the time of the sexual assaults.  

                    In a ruling that the State now concedes is "puzzling," the superior court  


denied Stiffarm's discovery motion for three reasons: 

                     First, the superior court concluded that Stiffarm was not entitled to the  


discovery or production of information to attack the credibility of K.B.'s identification  


because the court had already ruled that, despite the unnecessarily suggestive nature of  


the  single-photo  procedure,  K.B.'s  identification  was  nonetheless  reliable  under  the  

Biggers/Brathwaite totality of the circumstances test.  

                    This rationale was faulty.  The superior court's Biggers/Brathwaite ruling  


meant only that (in the court's view) the identification was sufficiently reliable to qualify  


for admission into evidence under the due process clause.4  

                                                                                           The court's ruling did not  

mean  that  Stiffarm  was  prohibited  at  trial  from  attacking  the  reliability  of  the  

identification and the method through which it was obtained.  Likewise, the superior  

court's  Biggers/Brathwaite  ruling  did  not  authorize  the  court  to  impede  Stiffarm's  


investigation into the reasons for doubting the accuracy of the identification, nor did it  


authorize  the  court  to  deny  Stiffarm  the  benefits  of  legal  processes  for  compelling  

discovery relevant to this issue.  

                    The superior court's second stated reason for denying Stiffarm's request for  

production was that, because the State had already furnished Stiffarm's attorney with the  


surveillance  video  of  the  stairwell  entrance,  and  this  evidence  appeared  to  be  

"dispositive"  on  the  issue  of  identity,  Stiffarm's  motion  "appear[ed]  to  be  a  fishing  

          4    See Brathwaite, 432 U.S. at 113-14.  

                                                              - 7 -                                                        2437  

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

expedition" - an unnecessary and pointless exercise with little prospect of turning up  

relevant evidence.  

                    But if, as the State claimed and the superior court found, the surveillance  


video was "dispositive" of the question of the attacker's identity, then there would have  


been no need for the State to introduce K.B.'s photographic identification at trial.  And  

yet the prosecutor fought to introduce K.B.'s identification over Stiffarm's objection.  

This litigation strategy strongly suggests that the prosecutor did not perceive the video  


as dispositive of the attacker's identity.  

                    The  superior  court  permitted  the  State  to  introduce  K.B.'s  pre-trial  

identification of Stiffarm, despite the court's finding that the single-photo identification  


procedure was unnecessarily suggestive and the type of procedure that could lead to an  

unreliable and inaccurate identification.  Having made that ruling, the superior court was  


duty  bound  to  ensure  that  Stiffarm  had  a  full  and  fair  opportunity  to  challenge  the  


reliability and accuracy of the identification - including appropriate pre-trial access to  


the discovery Stiffarm needed to litigate this issue.  

                    The superior court's third reason for denying Stiffarm's motion was that  

production  of  the  inmate  photographs  would  intrude  upon  "the  confidentiality  and  

privacy of the other inmates" and would entail undue "time and cost" for the Department  


of Corrections.  

                    This third rationale for denying Stiffarm's motion is also flawed.  Under  




Braham v. State ,  even if the Department of Corrections had convincingly demonstrated 


that disclosure of this information to the defense would endanger persons or undermine  


the enforcement of the laws, or jeopardize some other important state interest, that would  


not  automatically  entitle  the  Department  to  withhold  the  information.    Once  the  

          5    571 P.2d 631 (Alaska 1977).  

                                                             - 8 -                                                       2437  

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

Department made this showing, the information would still be subject to                                              in camera  

review by the court to establish its relevance to the defense case.6  

                     Here, the superior court simply accepted, at face value, the Department of  


Corrections's unsupported assertions that the requested information was "confidential"  

and that it would be "overly burdensome" to produce the photographs from Department  

of Corrections records.  

                     When a litigant asks a court to order a third party (here, the Department of  


Corrections) to compile and produce documents, records, or other evidence that would  


be discoverable if in the possession or control of the prosecuting attorney, the court is  

authorized to consider the burden the discovery request would place on the third party.7  


But these burdens are clearly secondary to a defendant's due process right to a fair  

opportunity  to  investigate  the  government's  case  and  to  meet  the  government's  


                  The superior court was therefore not entitled to summarily deny discovery  


of relevant information based on the Department of Corrections's unsupported assertions  

that the information was confidential and the request unduly burdensome.  

                     The superior court was free to explore less burdensome options for the  

production of the  information Stiffarm was requesting.9  

                                                                                          Indeed, the court started to  

explore  one  alternative:    allowing  the  defense  attorney  to  select  the  dozen  inmate  


booking photographs that the attorney believed were most probative of the suggestive  

nature of the single-photo identification procedure. But the court abandoned this option  


          6    Id. at 643.  

          7    See Alaska R. Crim. P. 17(c).  

          8    See Braham , 571 P.2d at 643-44.  

          9    See Fathke v. State, 951 P.2d 1226, 1230 (Alaska App. 1998) (noting that a court   

may  establish  "appropriate  safeguards  in  the  use  and  dissemination"  of  discoverable  


                                                               - 9 -                                                         2437

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

because the court concluded that it was simply too late to allow Stiffarm to engage in   

further discovery.  This might have been a proper rationale  if the court had granted  

Stiffarm's earlier, timely request for discovery.  But the court did not.  

                     Likewise, the superior court was not entitled to deny Stiffarm's request on  


the ground that the requested materials might be confidential - an assertion that the  


Department  of  Corrections  made  but  never  supported.10  

                                                                                                 Even  assuming  inmate  

photographs are confidential, the superior court still had a duty to assess whether there  

was some alternative means to protect the affected inmates' confidentiality while still  

honoring  Stiffarm's  right  to  pretrial  discovery  -  for  example,  a  protective  order  

restricting the defense attorney's use and dissemination of the photographs.  

                     For these reasons, we conclude that the superior court violated Stiffarm's  

discovery  rights  under  Criminal  Rule  16  when  the  court  denied  Stiffarm's  motion  

without further evaluation of these issues.  

                     The next question is whether Stiffarm was prejudiced by this violation of  


Rule  16.        Because  the  superior  court  failed  to  conduct  any  review  of  the  requested  


discovery materials, whether in camera or otherwise, we are left without an adequate  

record to determine whether Stiffarm was prejudiced by the superior court's ruling -  

i.e., whether the requested materials would have directly aided Stiffarm's case.  

                     The State argues that any error in refusing to grant Stiffarm his requested  


discovery was harmless because the surveillance video was "dispositive" of the issue of  


Stiffarm's identity as K.B.'s assailant.  While we agree that the video is strong evidence,  


           10  See  Johnson  v.  State,  889  P.2d  1076,  1081  (Alaska  App.  1995)  (stating  that  


"Alaska Criminal Rule 16 permits the state to withhold disclosure of records whose contents  

are potentially discoverable only if a two-step procedure has been met: first, the state must  

make a threshold showing of good cause to maintain the records' confidentiality; second, if,  


but only if, such a showing is made, the trial judge must review the records in camera and  

determine that the material therein is not relevant." (citing Braham , 571 P.2d at 643)).  

                                                              - 10 -                                                         2437  

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

we are unable on the current record  to determine whether it is as dispositive as the State  



                    Accordingly,  we  remand  the  case  for  further  proceedings  to  establish  


whether the requested discovery would have aided Stiffarm's case and whether he is  


entitled to a new trial because of this violation of Criminal Rule 16.  Because we are  


remanding  the  case  for  these  additional  proceedings,  we  find  it  unnecessary  at  this  


juncture to address the other claims Stiffarm raises in this appeal.  


                    We  REMAND  this  case  to  the  superior  court  for  further  proceedings  


consistent with this decision.  More specifically:  

                    Within  15  days  of  our  decision,  the  superior  court  shall  order  the  


Department of Corrections to respond to Stiffarm's discovery request and to produce the  

requested  booking  photographs  and  related  information,  either  to  the  defendant's  

attorney or to the court for in camera review.  

                    If  the  superior  court  determines  that  in  camera  review  of  the  booking  

photographs and related information is required to protect an important state interest, and  

if the court ultimately decides that only a limited  amount of this material should be  


disclosed to the defense, the superior court shall ensure that all of the information it  

reviewed in camera is retained by the court system (under seal, if appropriate), so that  


the material is available for appellate review, and the superior court shall put its reasons  


for limiting the disclosure on the record (again, under seal if appropriate).  

                    The superior court shall issue its final decision on these discovery matters  


within 60 days of our decision.  

                    Once the defendant has received the discovery to which the superior court  


finds he is entitled, the defendant shall be given an opportunity to litigate whether he was  

                                                            - 11 -                                                      2437

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

prejudiced  by  the  failure  to  receive  this  discovery   prior   to  trial  and  whether  he  is  

therefore entitled to a new trial.    

                    The superior court shall issue its final decision on the question of a new trial  


within 120 days of our decision.  

                    If the superior court concludes that a new trial is warranted, the court has  


the authority to order this new trial, although the superior court must notify us of its  



                    If the superior court concludes that a new trial is not warranted, the court  


shall put its decision in writing and shall transmit its decision to this Court.  We will then  


allow the parties to file supplemental briefs addressing the superior court's decision.  

Once   we   have   received   the   parties'   supplemental   briefs,   we   will   resume   our  

consideration of this issue and the other points raised in this appeal.  

                                                           - 12 -                                                      2437

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