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Crane v. State (2/26/2016) ap-2492

Crane v. State (2/26/2016) ap-2492


              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@  

                              IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                       


                                                                                                         Court  of  Appeals  No.  A-11208  

                                                       Appellant,                                      Trial  Court  No.  3HO-10-240 C                              R  


                                                                                                                      O   P   I   N   I   O   N  


                                                       Appellee.                                        No.  2492 -               February  26,  2016  


                               ppeal from the District Court, Third Judicial District, Homer,  


                            Margaret L. Murphy, Judge.  


                            Appearances:  Jane B. Martinez, Anchorage, under contract with  


                            the  Public  Defender  Agency,  and  Quinlan  Steiner,  Public  


                            Defender,  Anchorage,  for  the  Appellant.                                              Craig  C.  Sparks,  


                            Assistant  District  Attorney,  Kenai,  and Michael  C.  Geraghty,  


                            Attorney General, Juneau, for the Appellee.  


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



                            Superior 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-----------------------

                         Fred RussellCrane                  was prosecuted for driving under the influence and                                          first- 

 degree child endangerment (because his son was riding as a passenger in the                                                                     car that   

                                      1  At Crane's trial, Crane took the stand and testified that he had not  

 Crane was driving).                                                                                                                                       

been impaired by alcohol. Later, duringthe State's rebuttal case, the officer who arrested  


 Crane  testified that,  toward the end of their interaction at the police station,  Crane  


 apologized to the officer for being drunk.  The State had not previously disclosed this  


 information to the defense.  


                         After the  officer gave this testimony about the alleged apology, Crane's  


 attorney  moved  for  a  mistrial  on  the  ground  that  the  audio  recording  of  Crane's  


processing  at  the  police  station  did  not  include  this  particular  portion  of  Crane's  


 interaction with the officer.   See Stephan  v.  State ,  711 P.2d 1156, 1162-63 (Alaska  


 1985), where the supreme court held that the police must record custodial interrogations  


that are conducted at a police station.  


                         Later, the defense attorney voiced an additional objection:  that the State's  


 failure to disclose this information before trial constituted a violation of Alaska Criminal  


Rule 16 (the rule governing pre-trial discovery).  See Bostic v. State, 805 P.2d 344, 348  


 (Alaska 1991), where the supreme court held that a mistrial is the presumptive remedy  


 for a discovery violation that comes to light during trial.  


                         The trial judge agreed with the defense attorney that the State should have  


 disclosed this information earlier - but the judge denied the defense attorney's motion  


 for a mistrial.  And the judge did not allow the defense attorney to pursue his motion to  


 suppress the alleged apology based on the officer's failure to record it.  Instead, the trial  


judge decided to deal with these two problems by instructing the jurors to ignore the  


 officer's testimony that Crane had apologized for being drunk.  


       1     AS 28.35.030(a) and AS 11.51.100(b), respectively.                   

                                                                            -  2 -                                                                      2492

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

                                                                                              The jury convicted Crane, and he now appeals.                                                                                                                                                                                                                                                                                           For the reasons explained                                                                                       

  in this opinion, we conclude that the trial judge's handling of this situation constituted                                                                                                                                                                                                                                                                                                                                                                                                                                             

 reversible error - and that Crane is therefore entitled to a new trial.                                                                                                                                                                                                                                                                                                                                                                                                                   

                                               A more detailed look at the underlying facts                                                                                                                                                                                                                                      

                                                                                              The criminal complaint against Crane was drafted by Kenai Police Officer                                                                                                                                                                                                                                                                                                                                                                                                 

  Casey Hershberger,                                                                                                                          the   officer who arrested Crane.                                                                                                                                                                                                         In this complaint,                                                                                                                      Hershberger  

  alleged that Crane had "apologized for driving drunk."                                                                                                                                                                                                                                                                                                                                 But the discovery materials that                                                                                                                                                                   

  the State supplied to Crane's defense attorney did not include any information about this                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   

  alleged apology - neither in a police report nor in the recordings of Crane's arrest and                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   

  DUI processing at the police station.                                                                                                                                                                                                                       

                                                                                               On the morning that Crane's trial began, Crane's attorney alerted the trial                                                                                                                                                                                                                                                                                                                                                                                                                  

judge that the State's discovery materials contained nothing about the alleged apology                                                                                                                                                                                                                                                                                                                                                                                                                                                                         

  that was referred to in the complaint.                                                                                                                                                                                                                     The defense attorney asked the trial judge to order                                                                                                                                                                                                                                                                 

  Hershberger to review the recording of the DUI processing, so that Hershberger would                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     

 not misrepresent the evidence by testifying about an "apology" that was not there.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        

                                                                                              Even though the prosecutor did not dispute the defense attorney's assertion                                                                                                                                                                                                                                                                                                                                                                                  

  that   the   tape   contained   nothing about                                                                                                                                                                                                                                  an   apology   for   driving drunk,                                                                                                                                                                                          the   trial judge   

 refused to order Officer Hershberger to review the tape.                                                                                                                                                                                                                                                                                                                                       Instead, the judge simply said,                                                                                                                                                       

  "After the last trial, I hope everyone learned about prepping their witnesses.                                                                                                                                                                                                                                                                                                                                                                                                                                                            Do I need     

  to say any more about that?"                                                                                                                                                                              The prosecutor answered, "No."                                                                                                                                                                                                               

                                                                                               Crane took the stand during the defense case and testified that he had not                                                                                                                                                                                                                                                                                                                                                                                                                       

 been impaired by alcohol.                                                                                                                                                            

                                                                                              When the time came for the State's rebuttal case, the prosecutor called                                                                                                                                                                                                                                                                                                                                                                                                      

  Officer Hershberger to the stand                                                                                                                                                                                                          -   and Hershberger testified that Crane                                                                                                                                                                                                                                                     had   in fact   

                                                                                                                                                                                                                                                                                              -  3 -                                                                                                                                                                                                                                                                                     2492

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

 apologized for being drunk.                                                                                                                                  Hershberger declared                                                                                                            that he had not remembered the                                                                                                                                           

 apology earlier, and that his memory was jogged by something that Crane said when he                                                                                                                                                                                                                                                                                                                                                                                       

testified during the defense case.                                                                                                                                                     According to Hershberger, Crane's apology was not                                                                                                                                                                                                                               

recorded because the apology was made after the DUI processing was over:                                                                                                                                                                                                                                                                                                                                                          


                                                                                                              Hershberger : When I remanded [Crane to] jail, I had                                                                                                                                                                                                                    

                                                                          gone back out to my car [and] retrieved his [mobile] phone                                                                                                                                                                                                                                          

                                                                          and stuff, [and when I] came back in, ... he apologized for                                                                                                                                                                                                                                                          

                                                                         being drunk.                                                            I ... put that in my criminal complaint ... .                                                                                                                                                                                                  I  

                                                                          don't have an audio recording of [the apology] because I was                                                                                                                                                                                                                                                

                                                                          done [with the DUI processing].                                                                              

At this point, Crane's attorney objected, and the trial judge excused the jury so that this                                                                                                                                                                                                                                                                                                                                                                          

issue could be investigated outside the jury's presence.                                                                                                                                                                                                                                                      

                                                                          During   the   ensuing   inquiry,   Hershberger   again   asserted   that   he   had  

 forgotten    about    Crane's    apology    until    Crane's    testimony    jogged    his    memory.   

Hershberger stated that he informed the prosecutor about his refreshed recollection at                                                                                                                                                                                                                                                                                                                                                                                         

 some point before he took the stand as a rebuttal witness.                                                                                                                                                                                                                                                                   

                                                                          The prosecutor conceded that the State's pre-trial discovery did not refer                                                                                                                                                                                                                                                                                                            

to   the   alleged   apology.     And   the   prosecutor   told   the   judge   that   when   Hershberger  

informed her about the apology,                                                                                                                                                          she did not think to notify the defense.                                                                                                                                                                                      She simply   

concluded that testimony about the apology was admissible, so she called Hershberger                                                                                                                                                                                                                                                                                                                                  

 as a rebuttal witness.                                                                                              

                                                                          Crane's attorney asked the judge to declare a mistrial on the basis that the                                                                                                                                                                                                                                                                                                                   

 State had committed a discovery violation by not disclosing this information earlier.                                                                                                                                                                                                                                                                                                                                                                          The  

defense attorney also argued that the State had potentially committed a                                                                                                                                                                                                                                                                                                               Stephan  violation  

 (because Hershberger had failed to record this aspect of his interaction with Crane, and                                                                                                                                                                                                                                                                                                                                                                             

because Crane's statement to Hershberger was potentially the product of questioning at                                                                                                                                                                                                                                                                                                                                                                                         

the police station).                                                                                    

                                                                                                                                                                                                                                 -  4 -                                                                                                                                                                                                                           2492

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

                                                           The trial judge agreed with the defense attorney that the prosecutor should                                                                                                                                                                                                                       

 have alerted the defense attorney as soon as Officer Hershberger told the prosecutor that                                                                                                                                                                                                                                                                               

 he now remembered Crane's alleged apology.                                                                                                                                                                

                                                           But instead of granting the requested mistrial, and instead of allowing the                                                                                                                                                                                                                                     

 defense attorney to investigate and litigate the potential                                                                                                                                                                                  Stephan  violation, the trial judge                                                                                 

 decided to remedy the situation by telling the jurors to disregard what Hershberger had                                                                                                                                                                                                                                                                                 

just said about Crane's apologizing:                                                                                                                        


                                                                                         The Court                                   : Ladies and gentlemen, [you heard] Officer                                                                                                                 

                                                           Hershberger's [testimony about] Mr.                                                                                                                               Crane's cell phone -                                                                   

                                                            [that                       it]              was                      in             the                  front                          passenger                                           seat                     of              Officer  

                                                           Hershberger's   car   during [Crane's                                                                                                                       breath]   test.     Anything  

                                                            said after that by Officer Hershberger has been stricken from                                                                                                                                                                                  

                                                           the record.                                      That means you are to disregard it.                                                                                                                         You are not                              

                                                           permitted even - If you don't remember what it was, that's                                                                                                                                                                                   

                                                           really good.                                        If you do [remember it], you're to ignore it.                                                                                                                                                  It's  

                                                           like it was never said.                                                                         Okay?   

                               Why we conclude that the trial judge's approach to this problem was                                                                                                                                                                                                                                        

                              reversible error   

                                                           Under Alaska Criminal Rule 16 (b)(1)(A)(ii), the State must disclose to the                                                                                                                                                                                                                                      

                                                                                                                                                                                                                                                                                               2        This rule applies to  

 defense the substance of any oral statements made by the accused.                                                                                                                                                                                                                                                                                                              

 Officer Hershberger's testimony that Crane apologized to him for driving drunk.  


                                                           In Crane's case, one might arguably assert that information about Crane's  


 apology was disclosed to the defense, because it was included in the text of the criminal  


 complaint that initiated  this prosecution.   But as we have explained, Crane's defense  


 attorney raised this issue at the  beginning of the trial - pointing out the discrepancy  


                2             See Starkweather v. State                                                                                    , 244 P.3d 522, 524 (Alaska App. 2010).                                                                                                                                  

                                                                                                                                                                                    -  5 -                                                                                                                                                                            2492

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between the wording of the complaint (which contained                                                                                                                                                                                                                                                                                              an assertion about Crane's                                                                                        

 apology)   and   the    fact   that   no   such   apology   was   included   in   the   recording   of  

Hershberger's interaction with Crane, nor in any of the other discovery materials that the                                                                                                                                                                                                                                                                                                                                                                                                        

 State had furnished to the defense.                                                                                                                                                                       

                                                                              The defense attorney's remarks led to a colloquy between the court and the                                                                                                                                                                                                                                                                                                                                           

parties - and given the prosecutor's remarks during this colloquy, the defense attorney                                                                                                                                                                                                                                                                                                                                                                             

 could reasonably conclude that the State had no evidence of such an apology.                                                                                                                                                                                                                                                                                                                                                                                       Indeed,  

 shortly after Officer Hershberger delivered his surprise rebuttal testimony about the                                                                                                                                                                                                                                                                                                                                                                                                          

 apology, the trial judge declared that                                                                                                                                                                                she   had   interpreted the prosecutor's remarks as                                                                                                                                                                                                                            

 equivalent to a concession that Crane made no such apology.                                                                                                                                                                                                                                                                                                        

                                                                              Given these circumstances, we conclude that the State failed to comply with                                                                                                                                                                                                                                                                                                                                    

the mandate of Criminal Rule 16(b)(1)(A)(ii).                                                                                                                                                                                                                            

                                                                              After Hershberger delivered his surprise testimony, the prosecutor told the                                                                                                                                                                                                                                                                                                                                         

 court   that   Hershberger   informed   her   of   this   new   information   before   she   called  

Hershberger to the stand as a rebuttal witness - and that she called Hershberger to the                                                                                                                                                                                                                                                                                                                                                                                                          

 stand for the purpose of having him give this testimony.                                                                                                                                                                                                                                                                            

                                                                              Rather than callingHershberger                                                                                                                                                    to the stand to testify about Crane's                                                                                                                                                                        alleged  

 apology,   what   the   prosecutor   should   have   done   under   these   circumstances   was  

 immediately notify Crane's attorney about Hershberger's new information.                                                                                                                                                                                                                                                                                                                                                                     This would   

have allowed the court and the parties to handle this late disclosure under the procedures                                                                                                                                                                                                                                                                                                                                                          

 described in                                                         Bostic, 805 P.2d at 346-47.                                                                                                                                           

                                                                              Immediate disclosure would also have allowed Crane's attorney to cross-                                                                                                                                                                                                                                                                                                                            

 examine Hershberger about his claim that he had only just remembered Crane's apology                                                                                                                                                                                                                                                                                                                                                                                  

-  an assertion that went untested in the trial court, because the trial judge's approach                                                                                                                                                                                                                                                                                                                                                                     

to this problem did not give the defense attorney a chance to engage in this inquiry.                                                                                                                                                                                                                                                                                                                                                                                                             

                                                                                                                                                                                                                                              -  6 -                                                                                                                                                                                                                                       2492

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                                                                     In addition, immediate disclosure would have allowed Crane's attorney to                                                                                                                                                                                                                                                                                                  

 investigate   and   litigate   the   question   of   whether,   if   Crane   did   indeed   apologize   to  

 Hershberger, Crane's apology should be suppressed under                                                                                                                                                                                                                                                  Stephan v. State                                                                      because of   

 Hershberger's failure to record it.                                                                                                                                         

                                                                     But instead of immediately disclosing this information to Crane's attorney,                                                                                                                                                                                                                                                            

  so that these matters could be litigated properly, the prosecutor called Hershberger as a                                                                                                                                                                                                                                                                                                                                                       

 rebuttal witness and had him give his surprise testimony.                                                                                                                                                                                                                                             Thus, the new                                                                       information  

 about the alleged apology was conveyed simultaneously to the defense attorney, the trial                                                                                                                                                                                                                                                                                                                                            

judge, and - most prejudicially - the jury.                                                                                                                                                              

                                                                     Although the defense attorney immediately asked for a mistrial and for a                                                                                                                                                                                                                                                                                                     

 Stephan  hearing,   the trial judge denied the mistrial motion and essentially ignored the                                                                                                                                                                                                                                                                                                                                            

 Stephan  motion.   Instead, the judge attempted to keep the trial on track by simply telling                                                                                                                                                                                                                                                                                                                             

 the jury to disregard Hershberger's testimony.                                                                                                                                                                                             

                                                                      Conceivably, if Hershberger's testimony had involved a matter that was less                                                                                                                                                                                                                                                                                      

  significant   and   less   prejudicial,   the   judge's   approach   might   have   been   a   reasonable  

 response to the situation.                                                                                                     But given the content of Hershberger's rebuttal testimony -                                                                                                                                                                                                                                                

 his assertion that Crane apologized to him for being drunk - the trial judge's approach                                                                                                                                                                                                                                                                                                                 

 to the problem was not an effective remedy.                                                                                                                                                                                         

                                                                      Crane's apology to Hershberger, if believed, amounted to a confession that                                                                                                                                                                                                                                                                                      

 Crane was guilty of DUI (because it was undisputed that Crane had been driving a motor                                                                                                                                                                                                                                                                                                                              

 vehicle).     Although   a   trial judge's                                                                                                                                           curative   instruction   is   normally   presumed   to   be  


  sufficient   to   resolve   the   problem   when   a   jury   hears   objectionable   evidence,    this  

 presumption does not apply when a jury improperly hears evidence of a defendant's  


 confession.  As the United States Supreme Court has recognized, "[a] confession is like  


                  3                See State v. McDonald                                                                                          , 872 P.2d627,654-55 (AlaskaApp.1994);                                                                                                                                                                     Whiteaker v. State                                                                         ,  

  808 P.2d 270, 277 (Alaska App. 1991).                                                                                                                                                         

                                                                                                                                                                                                                  -  7 -                                                                                                                                                                                                           2492

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

no other evidence"; it is "the most [ostensibly] probative and damaging evidence that can                                                                                       


be admitted against [a defendant].                                                                                                                                            

                                                                               Because of a confession's profound impact, "we  


may justifiably doubt [a jury's] ability to put [this evidence] out of mind even if told to  



 do so."  

                             Given the circumstances of Crane's case, the trial judge's admonition to the  


jurors  (instructing them  to  pretend  that  they  had  never  heard  evidence  of  Crane's  


purported apology) could not reasonably be expected to cure the problem created  by  


 Hershberger's surprise rebuttal testimony.   We therefore conclude that the trial judge  


 abused her discretion when she denied the defense motion for a mistrial.  



                             The judgement of the district court is REVERSED.  Crane is entitled to a  


new trial.  


       4      Arizona v. Fulminante                          , 499 U.S. 279, 296; 111 S.Ct. 1246, 1257; 113 L.Ed.2d 302                                                        




              Ibid , quoting Bruton v. United States , 391 U.S. 123, 139-140; 88 S.Ct. 1620, 1630;  


 20 L.Ed.2d 476 (1968) (Justice White, dissenting).  


                                                                                       - 8 -                                                                                 2492

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