*1 STEVENS, Appellant, Alaska, Appellee. STATE
No. 3134.
Supreme of Alaska. Court
July *2 Weaver,
Barbara J. and Mark Miracle Defenders, Shortell, Asst. Public Brian C. Defender, Anchorage, appellant. Public Anderson, Atty., Glen C. Asst. Dist. Jo- Balfe, seph Atty., Anchorage, D. Av- Dist. Juneau, Gross, Gen., ap- rum M. Atty. pellee.
OPINION BOOCHEVER, J., Before C. and RABIN- OWITZ, CONNOR, MAT- BURKE and THEWS, JJ.
RABINOWITZ, Justice.
Gary Stevens was indicted on two counts rape.1 first count 4, 1976; with the V.H. on the second count him the rape with T.F. on February 1976. After trial by jury, Stevens was guilty found on both counts. Subsequent jury’s return of verdicts, the guilty pleaded nolo contendere to a third count superior M.L. and was sentenced fifteen court to serve concurrent terms of years appeal, on each In this Ste- count. following vens has issues: part, raised in superior Whether the court erred denying motion for mistrial based on the failure of the state dis- police reports close which contained infor- mation used cross-examination state to impeach appellant’s alibi witness- es;
2. Whether
superior
court erred in
denying appellant’s motion for sever-
ance.2
provides
part:
1. AS 11.15.120
deny-
in relevant
1. Whether the
court
erred
ing appellant’s post trial motion for an evi-
person
(1)
A
knowledge
who
has carnal
dentiary hearing,
judgment
vacation of the
person, forcibly
another
the will
n
commitments,
and a new trial based on
person
guilty
of the other
.
.
appearance
improper
influence on the
rape.
court;
specified
2. Stevens has also
as error the follow-
sentencing
2. Whether
the court erred in
ing:
appellant
year
to three concurrent
fifteen
16(b)(1),
portions of Criminal Rule
nent
involving
first address the issue
We shall
police reports.
failure to disclose the
respect
tangible
information or
coming
or
into control of
evidence in control
order,
superior court re-
By pretrial
were not
quired
prosecuting
to:
police reports trans-
contained
the initial
to defense counsel and make
disclose
*3
copying
and
all
inspection
available
mitted to
counsel.”4
defendant’s
and
within
pos-
information
material
his
question
in
contained
police report
The
he is required
session and control which
two of
interviews with
Ste-
summaries of
(b)(1);
by
(b)(2)
disclose
to
subsections
alleged
Feb-
vens’ alibi witnesses as
the
(b)(3) of
of Criminal
and
Rule
Rules
report
ruary
rape of T.F.
In that
coming into
Procedure.
Such materials
Stevens,
appellant,
wife of
was re-
Diane
or
after
possession
his
control
that date
driving Gary
ported stating that she was
without
the
promptly
shall
disclosed
23,1976,
February
and that
car on
Stevens’
necessity
request
or further order of
house and
Marilyn
she went
McFadden’s
court.
this
p. m. An
stayed
until around 12:00
there
order,
to the terms of this
Stevens
Pursuant
Marilyn
interview
McFadden
con-
with
discovery
police
was entitled to
of all
re-
police report
tained in
also stated
the same
ports containing
persons
statements of
left
McFadden
that Diane
the
Stevens
addition,
relevant
information.3
Both
p.
home at
12:00 m.5
approximately
subsequent
discovery,
filed a
motion for
appellant’s
of these witnesses
testified at
discovery of
requesting “continuing
all in-
subject
under
left
McFadden
discovery
perti-
formation
trial
the
Ms. Stevens
psychiatric
attorney
prosecuting
as
of a
to call
sentences without the benefit
evaluation.
intends
hearing
or
witnesses at
(2)
by
Provided
Informant—
Information
16(b)(1),
3.Alaska Rule of Criminal Procedure
prosecuting at-
Electronic Surveillance. The
(2)
(3) provide:
and
torney
defense
shall inform
counsel:
(b) Disclosure to the Accused.
(i)
any
relevant material or information
(1) Information Within Possession or Con-
relating
guilt or
the de-
innocence of
Except
Prosecuting Attorney.
trol of
as is
provided by
has been
an infor-
fendant which
provided
not
otherwise
as to matters
mant, and
orders,
protective
pros-
to disclosure and
surveillance, including
(ii)
any
electronic
attorney
ecuting
following
disclose the
shall
wiretapping, of
possession
information
or
within his
control
(aa)
accused or
to which the
conversations
to defense counsel and make available for
party,
his
was
inspection
copying:
and
(bb)
premises
his
of the accused or
(i)
persons
names
The
and addresses of
attorney.
by
government
knowledge
known
to have
(3)
Tending Negate
or
Guilt
Information
of relevant facts and their written or record-
ed statements or summaries of
prosecuting attor-
The
statements;
Reduce Punishment.
ney
any
ma-
(ii) Any
defense counsel
shall disclose to
written or recorded statements
possession or
terial
within his
and summaries
and
or information
of statements
the sub-
negate
guilt
any
tends to
stance of
oral statements made
control which
accused;
offense would tend to
as to the
or
accused
(iii) Any
punishment
recorded
therefor.
written or
statements
reduce his
and summaries of statements and the sub-
discovery
4. Also
in
motion
included
stance of
co-defendant;
oral statements
made
records,
requests
photographs
were
for medical
samples.
hair
These latter motions were
(iv) Any reports
experts,
or statements
hearings
granted
pre-trial
held
were
at
which
case,
particular
made
including
connection with the
May
counsel
1976. Defense
11 and June
physical mental
results of
or
exami-
May
hearing that he
indicated at
believed he had received
ports
tests, experiments
nations and of scientific
or
complete police re-
comparisons;
point
was
contradicted
and on this
documents,
(v) Any books, papers,
photo-
prosecutor.
graphs
tangible objects,
prose-
or
cuting attorney
hearing
to use in the
intends
important
times were
belong
or
or trial which
to the
obtained from
defense
because
accused;
alleged
occurred
to have
between
(vi) Any
prior criminal
record of
convic-
p.
12:30 m.
persons
tions
defendant and
whom
occasion
issue
fur-
appellant’s
approximate-
car at
admonition
residence
procedural
ly
p.
12:30
m.
cross-examination
ther violations of Alaska’s
rules
On
par-
pertaining
discovery. More
witness,
to criminal
used the undis-
prosecutor
each
ticularly, we stated:
prior
police report
closed
to establish that
police
hand,
Ms.
interviews both Ms. Stevens and
On the other
lack of
depar-
12:00 m. as the
here
In future
p.
purely
McFadden had set
fortuitous.
Moreover,
prose-
cases we will continue to scrutinize
pros-
ture time.6
on rebuttal
area,
cutorial conduct in this
and will
police
ecution called the
officer who con-
appears
where it
hesitate to reverse
ducted the earlier
interviews with Ms. Ste-
prejudiced by
the defendant
has been
vens and Ms.
police
McFadden. The
officer
such action.11
testified
previously
that Diane
had
stated that
she
resi-
left
the McFaddens’
Rule
en-
Rules of Criminal Procedure
dence at 12:00 m.7
*4
compasses
purposes, namely:
broad
provide adequate
In order to
informa-
State,
Des Jardins v.
In
P.2d
trial,
expedite
pleas,
tion for
informed
(Alaska 1976),
required
to as
we were
opportunity
surprise,
minimize
afford
prejudicial
sess the
impact
prosecu
cross-examination,
effective
and meet the
tion’s failure to disclose the names of four
discovery
requirements
process,
of due
witnesses for
just prior
the state until
to
prior
free
to trial
as full and
as
should be
trial.8 While we held that
it was error
per-
of
possible
protection
consistent with
particular
under
the
circumstances
for the
enforcement,
sons,
and ad-
effective law
superior court
to have denied Des Jardins’
versary system.12
continuance,9
motion for a
we concluded
that
the error was harmless under the test
provisions
explicit
the
By virtue of
State,
Love
articulated in
court’s
16(b)(l)(i),
of Rule
and the
(Alaska
Nevertheless,
1969).10
duty
we
the
pertaining
prosecution’s
took
order
police report
stantially
jury
6. The undisclosed
also indicated
influenced the decision of a
laymen.”
that Diane Stevens stated her husband was
“reasonable
babysitting
February
three children on
away
while she was
from home with the
prosecution
comply
9. Failure
the
to
with
trial,
car. At
Ms. Stevens testified on direct
discovery ordinarily entitles the
to a
defense
appellant stayed
examination that
with three
but not
continuance
tion. Scharver v.
to a dismissal of the ac-
However, ap-
children on
1976.
State,
(Alaska
pellant
testified on cross-examination that
1977).
Scharver,
the defendant did not re-
only
appel-
there had been
two children. Since
police reports
days
ceive discoverable
until six
trial,
prior
during
lant testified
to his wife
the
taking
testimony began.
appel-
before
The
contradiction in their versions of the events
present
in the
lee
case would have this court
was established without resort to cross-exami-
remedy
similarly
that
rule
request
Stevens’ sole
was
to
nation of Ms. Stevens.
attempt
a continuance and
to rehabili-
impeached
However,
his
tate
present appeal
witnesses.
the
from the
point
7. It was not until this
in the trial that
distinguishable
defense counsel discovered that he had not
case since defense counsel did not
Scharver
previously
police report
had access to the
report
police
learn of the undisclosed
until after
which contained this information. He immedi-
it had been
at trial to the
of his
used
detriment
ately moved for a mistrial and an order to
Thus, a continuance would not have
client.
protected
portions
testimony dealing
strike all
sufficiently
present
Stevens
police
information contained in the undisclosed
case.
report. Both motions were denied.
State,
in Des Jardins
10. Defense counsel
8. Since Des Jardins had not asserted
he
that
(Alaska 1976),
vigorously
P.2d 181
was able to
trial,
constitutionally
had been denied a
fair
the
question,
cross-examine the state witnesses in
State,
standard
(Alaska 1969),
Love v.
successfully impeached parts
and
mony.
of their testi-
Love,
applied.
was
Under
re-
versal based on non-constitutional errors turns
might
on “what the error
have meant
the
to
State,
test,
Des Jardins v.
jury.”
enough
Under the Love
it is not
(Alaska 1976).
totality
supports
the
that
of the evidence
result,
reviewing
but in addition the
court must
16(a).
determine whether the error would have sub-
12. Alaska Rules of Criminal Procedure
alibi
ing whether
these
witnesses would
discovery,13 we hold
make
testify
called to
at trial of
government
under
nevertheless be
case at bar
charge.15
T.F. rape
to disclose
the defense
duty
unex
report.14
prosecution’s
police
hand,
On the other
police report
plained failure
disclose
strong
cases
as
presented
Stevens
policies
which un
clearly contravened
charges. Study
to both
record
Rule 16.
derlie
victims
more than
reveals that both
had
their
adequate opportunity
observe
as-
prosecu
Having concluded that
sailant,
difficulty
subsequently
had no
tion failed to
with both Criminal
comply
Stevens,
medical testi-
identifying
the superior
discovery
Rule 16 and
court’s
the victims
fact
mony confirmed the
order, we must
determine whether
further
within
intercourse
experienced
had
sexual
prejudicial
the error
or harmless under
respec-
their
24 to 48
time
prior
hours
the Love test.
factual situation
Unlike the
been con-
tive medical examinations
had
in Des Jardins v.
(Alas
P.2d 181
did
contest
ducted.16 The defense
ka
did
learn
Stevens’ counsel
had
sexually
the victims
been
fact
until after
it had
impeaching
assaulted,
rather,
asserted that
the defense
testimony of
used to attack the
two
been
was not
the assailant.
rape charge,
his alibi witnesses to the T.F.
support
presented
position,
have
and thus a continuance would
been
testimony
going to both counts
alibi
Further,
prosecu
use
no avail.
*5
question.
deprived
this
Stevens’
tion of
evidence
light
foregoing,
to
reviewing
the
the
of the
we are led
opportunity
counsel of
prosecution’s failure
of Ms.
and Ms. McFad
the conclusion that
the
statements
Stevens
comply
the
den, and to assess
were made under
to
Rule 16 and
they
if
Criminal
order,
duress,
discovery
was under
plea
superior
a
should there
court’s
guilty
whether
the Love
standard,
entered,
harmless
as to the
have been
as well as determin-
error
fore
only
3, supra,
given
He can
the text of Rule
ment
under duress.
13. See note
was
16(b)(l)(i).
to the
do this if he has access to
Earlier we alluded
the statement. On
ascertain that the
entry
pretrial
specifical-
hand,
may
which
court’s
ly required
orders
the
he
other
prosecution
comply
telling
the
to
with the
alibi witness is not
the truth and de-
requirements
(b)(1).
permit
disclosure
of subsection
his
cide to recommend that
client
him
negotiate
may
plea with
It
the State.
that the
At trial the state
conceded
gave
appear
also
that several alibi witnesses
police report
been
should have
furnished
conflicting
In that event the de-
statements.
during
pretrial stages
counsel
the
fense
must have
to the state-
access
case.
the
to decide which of the con-
ments in order
flicting
is true in order for him to
statements
Fields,
Ill.App.3d
People
15. See
properly
against the State’s accusa-
defend
(Ill.App.
rev’d
N.E.2d
on other
that
statements are
tions.
In the event
the
(Ill.1974).
grounds,
59 Ill.2d
322 N.E.2d
furnished,
may
well decide not to
counsel
discovery
There
denied
defendant had been
though
at all
he
use
even
the alibi witness
prosecutor
the
had taken
his
statements
alibi witnesses. The
the statements
giving
innocent,
experi-
to be
his client
believes
argued
that
taught
discrepancies
may
him
ence
that
have
and it
were in conflict
would
statements and oral testimo-
between written
ny
advantage
the
defendant too much of
truthful
are common-
even from
witnesses
be able to
review the statements and then
place.
However,
decide
the state
alibi witness to call.
went
627 jurisdictions joinder where joined the two for counts of allowed, the courts have “of the same or similar similar offenses trial as offenses crimes are so dis 8(a), Rule Rules of held unless the pursuant character” meet the criteria for Initially, ar- tinct as to fail Procedure.22 Criminal offenses,23 the decision to sever is similar potential is such gues the trial court.24 joinder on within the discretion of in cases where is based “Thus, must case the court any given accused in similarity of offenses by to the defendant caused Secondly, weigh prejudice right should have a of severance. obviously important joinder against right even if there is no inherent to sever- expedition in ance, economy considerations of argues prejudiced that he was similar of judicial in which administration.”25 Once joinder of similar offenses by trial, properly joined it admissible fenses have been the evidence one could be to show upon in is incumbent defendant separate a trial of the other. kept turning by joinder diced ants a or of defend- drove around for a time and of offenses Appellant finally is an indictment or information or around dead end streets. joinder together, may knife, pulled folding such order an election or grant for trial the court stopped the car and out counts, separate trials of forcing engage Appellant T.F. to in oral sex. defendants, provide or a severance of raped lay T.F. while she on her side and then justice requires. whatever other relief ing In rul- car seat and he entered her stomach aon motion a defendant for severance the rear. may the court to deliver order the for the state 76, States, McElroy 164 U.S. 23. See v. United inspection the court for cam- 31, (1896). 41 17 S.Ct. L.Ed. 355 made era statements or confessions the defendants which the state intends to States, Bayless g., F.2d 67 at the 24. E. v. United 381 introduce 1967); Duane, 71, (9th People v. 21 Cal.2d Cir. P.2d 123 8(a) pro- 22.Alaska Rule of Criminal Procedure Coleman, (1942); 206 State v. 130 vides: 344, (1971); 78 State v. Ander Kan. may or more offenses Two son, 52, (1968); 202 Kan. State separate or in a same indictment count information 712, Hacker, (1966), 40 cert. 197 Kan. P.2d for each offense if the offenses denied, 1050, 18 L.Ed.2d 386 U.S. S.Ct. felonies, charged, whether misdemeanors or Brown, (1967); State v. 181 Kan. both, are of the same or similar character or McDonald, (1957); State v. P.2d 832 are based on the same act or transaction or on two or more acts or transactions connect- ed mon (1968). Wash.2d together constituting parts or of a com- plan. States, scheme or U.S.App.D.C. 25. Drew v. United As to the facts the record shows the follow- (1964). 331 F.2d ing: morning The first incident occurred on the judge balancing must which the trial 1976, apparently between the perform ruling on a for severance motion walking hours of 9 and 11 a. m. V.H. was complex process. states: McCormick home from work when Stevens offered her a large balancing measure calls for a Such V.H., According driving ride. he was a car *7 judgment the relative of individual about which was brown on the bottom with a white imponderables. Accordingly, gravity of top. Stevens drove V.H. toward her home at opinions of stress the element discre- some passed gate Fort Richardson but stopped the first and however, recognized, It should be tion. gate instead at the second where he depart a discretion to from is not this folding They threatened her with a knife. crimes, principle of other hav- that evidence drove on and V.H. was forced to remove all of except relevancy ground ing no substantial clothing engage her then drove V.H. to a secluded lake and commit- ted Anchorage and in oral sex. Stevens that accused is a bad man inference the hence crime, probably this must committed sodomy upon They her. drove back toward leeway of discretion lies excluded. The again stopped but afterward direction, empowering opposite rather V.H., again according raped her judge evi- to exclude the other-crimes forcing her to crouch on her knees on the car dence, indepen- when it has substantial even seat while he entered her from the rear. V.H. proba- relevancy, judgment if in his its dent tive value for this dropped off at her home near Rich- Fort outweighed by purpose ardson. passion danger that it will stir such 23, The second occurred sweep beyond jury as 1976, them a rational between 12:00and 12:20 m. T.F. was guilt consideration of or innocence of the hitchhiking appellant stopped when and of- only implies crime on trial. Discretion not the car he was fered her a ride. T.F. described leeway clearly driving top. They responsibility. as brownish with a white but A decision 628 prove
specific
identity
perpetrator
facts and circumstances
establish-
ble
of the
ing
prejudiced by
joint
how he will be
consequence,
offense. As a
burden,
meet
trial.26 To
defendant
prejudiced by
he asserts that he was
tendency
joint
must show more than a
of a
joint
ruling
prejudice
on claims of
image
jurors’
an
trial
create
minds
offenses,
joint
many
trials of similar
Moreover,
of his criminal
it
disposition.27
justified
part
courts have
their decisions in
enough
that a defendant shows that the
by reasoning
in ques
that had the offenses
against
charges
evidence
him on one of the
separately,
tion been
the facts of the
tried
is much weaker than in the other offense.28
count not
could nevertheless have
Further, since the decision to sever is left to
been introduced to show one or more ele
court,
the discretion of the trial
failure to
Any gen
ments of the charged offense.30
sever will not result
in the reversal of a
admissibility
eral rule of
of “other crimes”
conviction unless
it amounts
to a clear
recognize
differing
must
risks
abuse of
part
discretion on
the trial
prejudice
court.29
to a defendant
from the intro
duction of
kinds of evidence. As
various
argument
primary
concerning
States,
Hill v. United
stated in
U.S.App.
135
prejudice
surrounding
is that
the facts
449,
233, 235,
(1968),
D.C.
418 F.2d
451 n.5
separate
closely
incidents were not so
relat-
prejudice
“what we confront
is a zone of
separate
ed that
relating
trials evidence
uncharged
offense could be
.”31
admissi-
wrong
question
balancing proba-
1972).
(Wash.App.
on this
629 as that on the whole the evidence vinced us light foregoing of the considera in tions, presented has counts was separate we have concluded that Stevens abused its not shown that the court that Stevens was not con such a manner virtue sever by charges. discretion of its failure to against in his defense founded the offense As was question. the trial of in we think it Despite foregoing, of at the outset of the observed discussion with the agreement note our appropriate to issue, it is not the crimes contested which has been directed criticism sufficiently joinder. Con were similar joinder permits rule which procedural severance, we it sufficient cerning think charact of the same or similar of offenses in our the counts observe that view had join- general We think in such er.35 pertaining separately, facts been tried in those ders are to be avoided and have been to the count could joined has instances where showing the of purpose introduced similar character offenses of the same or People identity of common the assailant.32 accused, court, should on motion Thornton, 738, v. Cal.Rptr. 114 Cal.3d changes.36 of grant a severance such (1974), cert. de 467, 267, 280-91 of of the crime nied, 1118, Gary conviction 43 L.Ed.2d Stevens’ 420 U.S. S.Ct. V.H. Stevens’ Sterling, v. of affirmed. State (1975); Sterling, of the crime of T.F. (Or.App.1975);33 State 15 Or. conviction of (1973).34 P.2d 87 We further reversed and the matter remanded for App. study con note that our of the record has new trial.37 grounds plying relevancy their standards when the tion on of nevertheless of but purpose prove ultimate ty, of the is to identi- state noted: doing by or the accused of the criminal have where the evidence would [E]ven they act than the evidence is are when if, trials, separate been in admissible knowledge, offered on intent or other state of mind.” ted). ultimate issue charged, appears nature of the the that the crimes it (footnote omit- prosecutor might present able to be in ac- the evidence such a manner that the correctly points brief: 32. As the state out in its cused is not confounded in his defense young Both victims were women. native jury will be able the evidence to treat daytime during the Both events occurred hours between 9:00 testified charge separately to each and dis- relevant tinctly, m. Both and 12:30 judge sever- the trial need not order they walking when Stevens of the ance or election at commencement picked up. them Both were threatened folding knife. the car that Both described appellant attempts point out instances While driving being Stevens was as brown on prosecutor failed in which the keep in this case top. bottom and white on forced to the actual Both women were separate, of the the evidence two offenses engage intercourse, prior in oral reading of the indicates a careful record rape. Both were forced to assume mingling of the not a trial which this was position whereby a heads were in the front seat their separate charges occurred on the two pointed passenger toward the any appreciable extent. . door and both were entered from behind. rapes occurred less than three weeks generally view concur 35. Commentators apart. . inherently joint are trial of similar offenses that prejudicial avoid- to a defendant and should Sterling, 33. In State 537 P.2d at Note, Single Rules 8 Trial Under Joint and part: ed. court said Proce- the Federal and 14 of dure, Rules Criminal general The similarities this attacker’s (1965); Moore's 74 Yale L.J. plan operation, singly, taken are not un- (2d n.3, ed. 8-3 Practice at ¶ Federal when, here, 8.02[1] rapist. common to the But as 1976). identity major question (and is the where it defense), was accentuated the alibi simi- attacker, appearance Relating and Sev- larities plus to Joinder 36. ABA Standards place, erance, (1968). time and the kinds of victims and 1.1(a) 2.2(a), § 28-32 § at perpetrating the other methods the crimes quite above relevant to a mentioned become rape T.F. 37. Since conviction jury deciding whether the identification vacated, appel- upon remand is reversed made the victims is accurate. re- to the two should be resentenced as lant maining rape States, U.S.App.D.C. Prior to resen- convictions. v. United 34. Drew proceedings, psychiatric (1964), tencing *9 evaluation 91-92 reversed a convic- F.2d
CONNOR, Justice, with whom MAT-
THEWS, Justice, joins, GONZALES, dissenting part, Appellant, Louis concurring part.
I must respectfully dissent. Alaska, Appellee. STATE of I not agree prosecution’s do that the fail- No. 3259. ure to comply with Criminal Rule 16 was Supreme Court of Alaska. harmless error as rape charge to the involv- July ing the victim impeachment V. H. The Stevens’ witnesses as to his alibi on the T. charge
F. might well be taken the jury
to demonstrate that was a liar
therefore to be disbelieved as to the V. H.
charge. Further, pri- Mrs. Stevens was the
mary alibi witness on the H. charge. V.
Her impeachment with the withheld state-
ment concerning obviously the T. F. case
could have jury’s perception affected the
her testimony charge. as to the V. H.
my government’s view the failure to turn
over the relevant material tainted both ver-
dicts or at substantially least would affect
those verdicts. Under Love (Alaska 1969),
P.2d I cannot con-
clude that this was harmless error.
With the majority opinion balance of the
I agree.
BURKE, Justice, dissenting part. light evidence, of all of the I believe error flowing prosecu- from the
tion’s comply failure to Rule Criminal
16 was harmless as to both counts of the Thus,
indictment. I from the hold- dissent
ing conviction for the
T. F. must be reversed. part Stevens should be undertaken and made under AS 22.20.020. The “cause” asserted Further, supplemental pre-sentence report. Judge here is that Buckalew knew both the conducting any victim, M.L., resentencing proceed- family,
before ings, as well as the victim’s appoint appropriate disqualified this court will thus should have himself. As men- judiciary earlier, pleaded member of the Judge to determine whether tioned nolo contendere M.L., disqualify Buckalew’s refusal to himself after he had been convicted sentencing proper rape charges. for cause from Stevens was of the V.H. and T.F.