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

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


         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 @



                                                                     Court of Appeals No. A-11631  

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


                                                                              O  P  I  N  I  O  N  


                                     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  



                  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                                                       


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  




                        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

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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                                                                                                                                                                                                                                                                                                      


                                                                 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                                                                                                                                                                                                                                                                                                                      


medical  purposes.                                                                                                                                                                                                                                                                                                                                                                                            

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



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

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


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


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



                                                                                                            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  



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  



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  




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  



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

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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 .   


                                   The judgement of the district court is AFFIRMED.  


                                                                                                          - 6 -                                                                                                      2466

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