Opinion
Court of Appeals No. A-10423.
December 29, 2010.
Appeal from the Superior Court, Third Judicial District, Anchorage, Fred Torrisi, Judge, Trial Court No. 3AN-07-14472 CR.
Dan S. Bair, Assistant Public Advocate, Brooke V. Berens, Assistant Public Advocate, and Rachel Levitt, Public Advocate, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Ray Helveston appeals from his convictions for burglary, theft, and criminal mischief. He argues that the trial court erred when it denied his motion for continuance to secure the attendance of a witness to introduce business records from a local motel. But we conclude that Helveston failed to show that the witness's testimony was material or that he had exercised reasonable diligence to secure her testimony for trial.
Helveston argues that he should have been allowed to cross-examine one of the State's witnesses about the defense attorney's interpretation of the witness's immunity agreement. But we conclude that Helveston's proffered cross-examination was not relevant to any facts in issue at the time of his request. And we conclude that the trial judge did not commit plain error by failing to give a jury instruction about lost evidence.
Background
Richard Noren's home in Eagle River was burglarized in December 2006 while Richard and his wife were in Seward. Richard's son, Matthew Noren, had been staying at the house until just before the burglary. Richard Noren's daughter, Timeri Momblow, was checking on the house periodically while her parents were out of town.
On the evening before the burglary, Momblow came by her parents' home and found her brother, Matthew Noren, packing his clothes for a trip to Mexico. Ray Helveston was also present at the residence. Momblow reminded her brother that her parents were in Seward and told her brother to lock the house up before he left.
The next morning Momblow returned to her parents' home and found that the front door had been forced open and that the glass on the back door was shattered. The police determined that the burglar had smashed the front glass of a gun cabinet, and stolen several pistols, a trapper's hat, and a laptop computer.
Richard Noren and his wife immediately returned to their home. The next morning Richard Noren apprehended a man named Tracy Randall as Randall was breaking into the residence. Richard Noren held Randall at gunpoint in the house and summoned a nearby police officer. When the police officer arrived, a second man, Corey Dodge, jumped out of a getaway car nearby.
A few days later Richard Noren went to Isidor Cordova's house, where Matthew Noren had left his vehicle. Ray Helveston was at Cordova's house. Helveston accused Noren of threatening Corey Dodge with a weapon and said that Noren should "get the heat off" or he was going to allege that Matthew Noren owed him drug money.
Richard Noren told Helveston that he didn't have a pistol anymore because "you guys stole both of them." Helveston then corrected Noren and said that they had stolen three pistols, not two. (Noren returned to his house and confirmed that three handguns were missing.)
Helveston admitted to the police that he had been at the Noren residence smoking crack cocaine with Matthew Noren. He admitted that he had stolen some gift cards from the residence when he was there with Matthew, but he denied stealing anything else. Initially, Helveston denied that he had ever seen the glass gun cabinet on the second floor.
Anchorage Police Officer Gordon Korell retrieved two fingerprints and part of a palm print from the glass on the gun cabinet from which the pistols had been stolen. The police took photographs of the gun cabinet but they did not retain the glass from the cabinet door. The photos did not show the location of the fingerprints.
Matthew Noren testified that Helveston had been at his house on the afternoon before the burglary when his sister came by.
At trial, Helveston's defense focused on placing the blame on Randall, one of the men who had been apprehended at the Noren home the day after the burglary. But Helveston was ultimately convicted of one count of first-degree burglary, four counts of second-degree theft, and one count of fourth-degree criminal mischief. He now appeals. Discussion The court had a reasonable basis to deny the motion to continue.
During cross-examination, Matthew Noren stated that he did not recall staying at the Eagle's Nest Motel with Tracy Randall and Tita Shelhamer in December 2006. But Noren admitted that he had been with Tracy Randall and Corey Dodge, and had used drugs with them in December 2006.
Following Noren's testimony, Helveston's counsel requested a continuance to present the testimony of Suzanna Park. According to the defense attorney, Park was the manager of the Eagle's Nest Motel and would produce records showing that Matthew Noren had stayed at the motel from December 7 through December 10. Helveston's attorney explained that she wanted to call Park to rebut Matthew Noren's testimony that he did not remember staying at the Eagle's Nest Motel, to rebut his claim that he was not a close friend of Tracy Randall, and to demonstrate Noren's poor memory. The prosecutor opposed the continuance and argued that Park's testimony about the records of the Eagle's Nest Motel would not be relevant. She also pointed out that Matthew Noren had not denied staying at the Eagle's Nest; rather, he only testified that he did not remember whether he had stayed at the motel or not. The trial judge denied Helveston's motion to continue, concluding that Park's proffered testimony was, at best, impeachment on a collateral issue.
Helveston now argues that the trial court abused its discretion when it denied his motion for a continuance. A trial judge is generally "vested with broad discretion to determine whether a mid-trial continuance should be granted in order to allow a party to secure the testimony of an absent witness." We have listed seven factors for consideration that have been previously approved by the Alaska Supreme Court:
Ross v. State, 836 P.2d 378, 381 (Alaska App. 1992).
(1) whether the testimony is material to the case; (2) whether the testimony can be ellicited from another source; (3) whether the testimony is cumulative; (4) probability of securing the absent witness in a reasonable time; (5) whether the requesting party was diligent and acted in good faith; (6) the inconvenience to the court and/or others; (7) the likelihood that the testimony would have affected the jury's verdict.
Id. (quoting Salazar v. State, 559 P.2d 66, 72 (Alaska 1976)).
On the first factor, we conclude that Park's testimony was not material; it was, at best, only marginally relevant to Helveston's case. The issue of whether Matthew Noren had stayed at the Eagle's Nest Motel was not relevant to whether Helveston had committed the burglary; this was clearly a collateral matter. The motel records did not bolster the other evidence of Matthew Noren's relationship with Randall, because Randall was not mentioned in the records. And the records were only marginally relevant to show Noren's poor memory because Noren did not deny that he had stayed at the Eagle's Nest Motel; he testified only that he did not remember whether he stayed there.
See Snyder v. Foote, 822 P.2d 1353, 1357 (Alaska 1991) (stating that evidence offered to impeach a collateral matter is inadmissible).
Regarding the second and third factors, Park's testimony would have been somewhat cumulative to the testimony that had previously been given by Shelhamer. Shelhamer testified that she had gone to Matthew Noren's room at the Eagle's Nest Motel with Tracy Randall to use drugs in December 2006. Matthew Noren did not deny this assertion; he admitted that he had used drugs with Randall during that time period.
On the fourth factor, it is not clear from the record that Helveston would have secured Park's attendance at trial within a reasonable time. Helveston said that Park was returning from a trip to California on the following Monday. But Park was still not under a subpoena, and thus she had no obligation to show up.
On the fifth factor, the record does not demonstrate that Helveston had acted diligently in securing Park's presence for trial. Generally, a party must subpoena a witness to show this type of diligence. Helveston's investigator had met with Park about a month before the trial, but did not serve her with a subpoena. The subpoena was not delivered to the Eagle's Nest Motel until after Park had left for California, within a week before the trial. If Helveston had acted diligently, he could have subpoenaed Park or secured the relevant motel records well before the trial.
See D orm an v. State, 622 P.2d 448, 456 (A laska 1981); M orton v. State, 684 P.2d 144, 146 (Alaska App. 1984); Dunbar v. State, 677 P.2d 1275, 1279 (Alaska App. 1984).
On the sixth factor, the record does not demonstrate any serious inconvenience to the court or others if the trial had been continued. However, the trial judge did indicate that he had other court matters in Dillingham during the following week.
On the seventh factor, we conclude that Park's testimony would not have affected the jury's verdict. Again this testimony had no clear relevance to the question of whether Helveston had committed the burglary. Park's testimony was not relevant to Matthew Noren's relationship with Randall, and it did not tend to assist his defense that Randall had committed the burglary.
We therefore conclude that the trial judge did not abuse his discretion when he denied Helveston's motion for a continuance. The judge reasonably restricted Helveston's cross-examination.
The State agreed to give Matthew Noren a grant of transactional immunity prior to the trial. The letter containing the immunity agreement recited the prosecutor's understanding that if Matthew Noren testified at Helveston's trial, he might be questioned about his use of controlled substances, and about Helveston's awareness of his drug use. The letter went on to grant Matthew Noren transactional immunity for his testimony at trial: "He will not be prosecuted for any matter about which he is required to testify by giving responsive answers to questions asked during court proceedings related to these cases."
During his testimony, Matthew Noren admitted that he had an immunity agreement with the State "[f]or the drug issue." Helveston's attorney asked Noren if the agreement limited what he was allowed to testify to, and Noren answered, "No, it doesn't . . . limit me to saying — I can say whatever I want."
Helveston's attorney then suggested that the immunity agreement only protected Matthew Noren from testimony about his use of controlled substances prior to the night of the burglary. The prosecutor objected and the trial judge sustained the objection.
The court then held a conference outside the presence of the jury. Helveston's attorney indicated that she wanted to tell Matthew Noren that, in her view, the immunity agreement only covered Noren's testimony about the possession and use of controlled substances before the night of the burglary. The defense attorney wanted to suggest that the grant of immunity did not include Noren's potential distribution (sharing) of controlled substances with other people and did not include immunity for his testimony of drug use on the night in question. After hearing argument, the judge sustained the prosecutor's objection to Noren's attorney's question about her interpretation of the immunity agreement.
On appeal, Helveston argues that Matthew Noren had a motive to minimize his testimony about drug distribution or drug use on the night of the burglary because Noren might have thought that those topics were not covered by the grant of immunity. But these issues were clearly irrelevant at the time of the objection. At the time of the objection, no one had asked Matthew Noren whether he had been involved in drug distribution. And no one had asked Matthew Noren whether he was using controlled substances on the night of the burglary.
After the trial judge made his ruling on the prosecutor's objection, Helveston's attorney asked Matthew Noren whether he had been using drugs after he left the house to go to the airport, and Noren denied that he had been using drugs. Helveston's attorney did not ask Matthew Noren if he was using drugs with Randall at his parents' home. She did not ask Matthew Noren if he was minimizing his drug use because he was afraid of prosecution. And Helveston's attorney did not ask the trial judge to revisit his ruling regarding the meaning of the grant of immunity. Helveston's testimony after the judge's ruling does not affect our conclusion that the judge did not abuse his discretion when the ruling was made.
We review a trial court's decision limiting cross-examination of a witness for abuse of discretion. Here the trial judge allowed Helveston to cross-examine Matthew Noren about the immunity agreement and his understanding of it. The trial judge did not place any limitation on Helveston's ability to ask Matthew Noren about his drug use or whether he had committed any other crimes. We conclude that the trial judge did not abuse his discretion by limiting the defense attorney's ability to ask about her own interpretation of the immunity agreement — an interpretation that was inconsistent with Matthew Noren's understanding of the agreement and inconsistent with the wording of the agreement.
See Stumpf v. State, 749 P.2d 880, 901 (Alaska App. 1988).
The trial judge was not required to give a lost-evidence instruction.
As noted above, O fficer K orell retrieved two fingerprints and part of a palm print from the broken glass door of the gun cabinet. Korell testified that he found the palm print on the outside of the glass and the two fingerprints on the inside of the glass. He opined that "the suspect broke out the bottom of the glass and was holding it by the top with one hand to keep the glass from falling or sliding down while removing the guns from the gun case."
Helveston now argues that Officer Korell should have retained his temporary field notes and preserved the glass door where he found Helveston's fingerprints. He argues that the judge committed plain error because the jury was not instructed to presume that the field notes and the glass door would have been favorable to Helveston if they had been retained.
Helveston did not request such an instruction at the trial. So now he must show that the failure to give such a jury instruction was plain error. We will not find plain error unless error in fact occurred, and "the error should have been apparent to any competent judge or lawyer."
See Alaska R. Crim. P. 30(a) ("No party may assign as error any portion of the charge or omission therefrom unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds of the objections.").
Burton v. State, 180 P.3d 964, 968 (Alaska App. 2008).
Ordinarily the trial court would consider four factors to determine whether to give this type of instruction: (1) whether the State acted in good or bad faith; (2) the degree of the State's culpability; (3) the importance of the lost evidence; and (4) the likelihood that the defendant suffered prejudice because of the loss of the evidence. But in this case, the parties did not offer any evidence or argument on these factors, and the judge did not rule on the propriety of this instruction because Helveston did not make any request for such an instruction during the trial.
Thorne v. State, Dep't of Pub. Safety, 774 P.2d 1326, 1331 (Alaska 1989); see also Riney v. State, 935 P.2d 828, 840 (Alaska App. 1997).
The Alaska courts have denied this type of instruction in similar circumstances. We have held that an officer's destruction of his field notes did not deny a defendant discoverable exculpatory material in violation of the state and federal constitutions. The Alaska Supreme Court has rejected claims that the police must retain all of the items from which they take fingerprints during a criminalinvestigation. In view of these cases, we conclude that it would not have been obvious to any competent judge or attorney that Helveston would have been entitled to any discovery sanctions in this case. We find no plain error. Conclusion
See Hines v. State, 703 P.2d 1175, 1180 (Alaska App. 1985); Emery v. State, Mem. Op. J. No. 4608, 2002 WL 1842987, at *4-5 (Alaska App. Aug. 14, 2002).
See Wyrick v. State, 590 P.2d 46, 46-47 (Alaska 1979); White v. State, 577 P.2d 1056, 1058-60 (Alaska 1978).
We therefore AFFIRM the superior court's judgment.