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discussing a jury instruction that clarifies that the presumption is rebuttable
Summary of this case from Veibell v. StateOpinion
Court of Appeals No. A-8933, No. 5101.
August 9, 2006.
Appeal from the Superior Court, Second Judicial District, Nome, Ben J. Esch, Judge. Trial Court No. 2NO-04-101 CR.
David K. Allen, Assistant Public Advocate, Fairbanks, and Joshua Fink, Public Advocate, Anchorage, for Appellant.
Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Roy N. Henry argues that the superior court erred in denying his motion to dismiss his indictment because the State destroyed evidence of Henry's illegal homebrew prior to trial. Because the superior court's denial of Henry's motion was not an abuse of discretion, we affirm Henry's conviction.
Background facts and proceedings
In February 2004, Alaska State Trooper Nathan Sheets was in Brevig Mission and saw Roy Henry at the post office. Trooper Sheets remembered a report that Henry had been illegally manufacturing homebrew alcohol. After finishing interviews at the post office, Trooper Sheets went to Henry's house to investigate the report.
Sheets knocked on Henry's door, and, upon hearing a voice tell him to come in, entered Henry's house. Sheets was dressed in plain clothes but identified himself to Henry as a state trooper.
Trooper Sheets smelled homebrew inside the house. Sheets asked Henry if he was making homebrew; Henry denied that he was. Sheets asked Henry if he could search the residence, and Henry agreed. Trooper Sheets discovered a large rubber garbage can containing a solution that Sheets concluded was homebrew. Sheets could hear the mixture bubbling.
Henry conceded that the mixture was homebrew. Henry told Sheets the recipe he used. Henry also told Sheets that he had mixed the homebrew the day before and usually drank it with friends 48 hours after mixing it.
Sheets took pictures of the homebrew and then asked Henry to help him carry the homebrew outside to dispose of it. The two men carried the homebrew to the beach, where they dumped it. Sheets observed three other piles of homebrew sludge in the snowbank nearby.
After dumping the homebrew, Sheets told Henry that he was not sure whether a plane would be available that night, but if there was one, Sheets would arrest Henry and take him to Nome. Sheets later confirmed that a plane was available, took Henry into custody, and flew with him to Nome.
The grand jury indicted Henry on one count of illegally manufacturing an alcoholic beverage in an area that has adopted a local option prohibiting such activity, a class C felony. Henry moved to dismiss the indictment, arguing that Trooper Sheets improperly failed to preserve a sample of the homebrew and that Henry was prejudiced by the destruction of the evidence because testing might have shown the homebrew contained no alcohol.
AS 04.11.010(a) AS 04.16.200(b).
Superior Court Judge Ben J. Esch held an evidentiary hearing. At the hearing, Sheets testified about his decision to dispose of the homebrew. He stated that he thought he had little choice but to dispose of the homebrew because, if he left it with Henry, it would have "disappeared by other means other than dumping it out." In addition, Henry did not have a telephone, so Trooper Sheets was unable to contact the village police officer for assistance.
At the time he discovered the homebrew, Trooper Sheets only had an empty 35mm film canister and manila envelopes in which to transport evidence. Sheets testified that, on two previous occasions, he had attempted to transport samples of homebrew in film canisters on an airplane, and both times the canisters blew their lids, allowing the samples to spill.
Judge Esch denied Henry's motion to dismiss the indictment. Judge Esch found that Trooper Sheets had an opportunity to preserve a sample of the homebrew and that a sample might have been exculpatory if testing showed that no alcohol had been produced. But Judge Esch found that Trooper Sheets's degree of culpability was low because Trooper Sheets had no other option available to him save destroying the homebrew. Further, Judge Esch found that the importance of the lost evidence was low because Henry admitted the mixture was homebrew, Trooper Sheets's observations corroborated this admission, and Henry had experience manufacturing homebrew, making it likely this batch would successfully produce alcohol. Judge Esch concluded that the proper sanction in this case was to instruct the jury that the missing evidence would have been favorable to Henry.
At trial, when the parties submitted their jury instructions, Henry argued the court should instruct the jury that the substance in the garbage can contained no alcohol. Henry argued that the only way the missing evidence would be favorable to him is if it was shown to contain no alcohol. The State argued that the court should instruct the jury that the presumption the evidence would be favorable to Henry was rebuttable.
Judge Esch agreed with the State and gave the jury this instruction:
There was no test of the material in the garbage can that was described by Trooper Sheets. You are instructed that you should presume that a test of that material would have been favorable to the defendant.
However, that presumption may be overcome by proof beyond a reasonable doubt, by other evidence, that the can contained an alcoholic beverage.
The jury found Henry guilty of illegally manufacturing an alcoholic beverage in a local option area. Henry appeals.
Did the superior court abuse its discretion by refusing to dismiss the case?
Henry argues that he was prejudiced by the State's destruction of the homebrew. Henry asserts that a sample of the homebrew might have shown the mixture contained no alcohol, thereby making Henry guilty only of an attempt and not a completed crime.
The State has a duty to preserve any evidence that comes into its possession and that is discoverable by the defendant. This duty does not require the State to collect all evidence that may be beneficial to the defendant's case. But the duty to preserve evidence attaches once any arm of the State has gathered and taken possession of the evidence in question. Under Criminal Rule 16, the homebrew would have been discoverable if it was in the State's possession.
Putnam v. State, 629 P.2d 35, 43 n. 16 (Alaska 1980) (citing United States v. Bryant, 439 F.2d 642, 651 (D.C. Cir. 1971), overruled on other grounds by Arizona v. Youngblood, 488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988)), overruled on other grounds by Stephan v. State, 711 P.2d 1156, 1163 (Alaska 1985).
Nicholson v. State, 570 P.2d 1058, 1064 n. 23 (Alaska 1977); March v. State, 859 P.2d 714, 716 (Alaska App. 1993).
Putnam, 629 P.2d at 43 n. 16. See also March, 859 P.2d at 716 (finding the duty to preserve evidence did not attach where Troopers did not visit kill site to recover evidence of illegal hunting activity).
Alaska R. Crim. P. 16(b)(1)(A)(iv). See also Alaska R. Crim. P. 16(b)(3) ("The prosecuting attorney shall disclose to defense counsel any material or information within the prosecuting attorney's possession or control which tends to negate the guilt of the accused as to the offense or would tend to reduce the accused's punishment therefor.").
Because the State did not preserve the homebrew solution, Henry argues that the remedy for the failure to preserve the evidence should have been dismissal of the case instead of the jury instruction Judge Esch gave. Henry also argues that if a sample of the homebrew was available for testing, and if testing had shown no measurable alcohol was present, Henry would have been able to argue that he was guilty of only an attempt.
First, we address the State's argument that this case presents an issue of failure to collect evidence, not the loss or destruction of evidence. We disagree. Judge Esch found that Trooper Sheets had taken possession of the homebrew and could have taken a sample for evidence. Thus, the State's duty to preserve the evidence attached when Trooper Sheets took possession of the homebrew.
See Putnam, 629 P.2d at 43 n. 16.
Henry argues that the only remedy for the destruction of the evidence of the homebrew is dismissal of the charges. But when the State destroys evidence in its possession, the trial court is not automatically required to impose a particular sanction or any sanction at all. In Putnam v. State, the Alaska Supreme Court outlined the test for determining when sanctions are appropriate and how sanctions should be imposed:
See id. at 43.
What, if any, sanctions are appropriate is to be determined by weighing the degree of culpability involved on the part of the state, the importance of the evidence which has been lost, and the evidence of guilt which is adduced at trial. Where the evidence in question was destroyed in bad faith or as part of a deliberate attempt to avoid production, sanctions will normally follow. On the other hand, where it appears that the evidence was lost or destroyed in good faith, the imposition of sanctions will depend upon the degree to which the defendant has been prejudiced. In cases where the defendant cannot reasonably be said to have been prejudiced by the state's good faith failure to preserve the evidence, sanctions will generally not be appropriate. Where, however, the defendant has suffered prejudice, sanctions will generally be warranted.
Id. at 43-44 (internal citations omitted). See also Thorne v. Dep't of Pub. Safety, 774 P.2d 1326, 1331 (Alaska 1989); State v. Norman, 875 P.2d 775, 777 (Alaska App. 1994) (where a court determines that the State intentionally destroyed evidence material to a defendant's case, "the defendant is entitled to dismissal of the charges if the missing evidence could possibly have created a reasonable doubt concerning the defendant's guilt"); Abdulbaqui v. State, 728 P.2d 1211, 1217-18 (Alaska App. 1986); Maloney v. State, 667 P.2d 1258, 1263 (Alaska App. 1983).
Here, Judge Esch found that, while Trooper Sheets intentionally destroyed the evidence, he did not do so for the purpose of hampering Henry's defense. Rather, the evidence was contraband, and under the circumstances, Trooper Sheets had no other reasonable option. Judge Esch found Trooper Sheets's actions were "possibly negligent, but not done with the intention to prejudice the defendant." Because Trooper Sheets had no other option for dealing with the evidence save destroying it, using the test outlined in Putnam, Judge Esch found that the State's degree of culpability was low. In addition, Judge Esch found the importance of the evidence was low because other evidence strongly suggested Henry's guilt, including Henry's experience with homebrewing, Trooper Sheets's testimony concerning his familiarity with the homebrewing process, and Henry's own admission that the substance was homebrew.
Henry argues that the superior court's analysis and decision to impose only the sanction of a jury instruction was flawed because no other evidence than the homebrew solution itself could definitively show that Henry had produced alcohol.
Just what sanction is appropriate in a given case is best left to the sound discretion of the trial court. We will not disturb the trial court's decision to deny a motion to dismiss an indictment absent an abuse of discretion.
Putnam, 629 P.2d at 43-44.
Id. at 44.
Here, Judge Esch acknowledged that, "in the unlikely event [Henry] failed to get the [contents of the garbage can] to produce ethyl alcohol, [Henry] would be prejudiced by the lack of a sample to test." Judge Esch elected to instruct the jury that there was a rebuttable presumption that the missing evidence would have been favorable to Henry. Alaska courts have found a jury instruction to be an appropriate sanction in similar situations. We conclude that Judge Esch's choice to give a jury instruction rather than dismiss Henry's charges was not an abuse of discretion.
See State v. Ward, 17 P.3d 87, 90 (Alaska App. 2001) (where the State negligently destroyed evidence, a jury instruction that the missing evidence would favor the defendant is the appropriate sanction); Norman, 875 P.2d at 777-78 (jury instruction that missing evidence would be favorable to defendant is a possible sanction where defendant's conviction was based on other evidence).
Conclusion
The judgment of the superior court is AFFIRMED.