Burke v. State

• Citation: 624 P.2d 1240
• Decision Date: 24 October 1980
• Docket Number: No. 3969,3969
• Parties: Luther BURKE, Jr., Appellant, v. STATE of Alaska, Appellee.
• Court: Supreme Court of Alaska (US)

Page 1240

624 P.2d 1240

Luther BURKE, Jr., Appellant, v. STATE of Alaska, Appellee.

No. 3969.

Supreme Court of Alaska.

Oct. 24, 1980.

Walter Share, Sue Ellen Tatter, Asst. Public Defenders, and Brian Shortell, Public Defender, Anchorage, for appellant.

Charles W. Cohen, Asst. Dist. Atty., Joseph D. Balfe, Dist. Atty., Anchorage, and Avrum M. Gross, Atty. Gen., Juneau, for appellee.

Before RABINOWITZ, C. J., and CONNOR, BOOCHEVER, BURKE and MATTHEWS, JJ. ^*

OPINION

RABINOWITZ, Chief Justice.

Luther Burke appeals his statutory rape conviction on seven separate grounds. These are alleged due process violations as a result of pre-indictment delay, an alleged error in allowance of evidence of prior sexual misconduct, a denial of a continuance, a denial of a motion for acquittal on lack of corroboration, failure to give a cautionary instruction on the victim's testimony, and error in giving instructions on the absence of a need for corroboration and inconsistent testimony. We have considered each of these alleged errors in turn and find no reversible error. Therefore, Burke's conviction is affirmed.

Cecilia Burke came home early from work on the morning of October 1, 1976, and found her daughter, M.B., then 15, in bed with her daughter's stepfather (Cecilia's former husband), Luther Burke. Although divorced, Cecilia and Burke had been living together on and off since June. Burke worked as a cook on the pipeline. He was gone for periods of up to two months at a time, coming into Anchorage for at most periods of two weeks. On this particular morning, Cecilia expected him to be there when she got home.

Upon entering her house, Cecilia realized that Luther must be in her daughter's room when she heard his snoring coming from that room, although his clothes were on a love seat in the living room. Entering the bedroom, she switched on the lights and found Burke in bed with M.B. She pulled back the sheets and found him totally naked. M.B.'s nightgown was pushed up to her waist. She awakened Burke, asked him what he was doing, cursed him, and tried to strike him.

Cecilia asked M.B. how long this had been going on, and she said, "since we (lived) in Fairview," a prior residence. Cecilia yelled at her, hit her, and told her to get her clothes on and that she was taking her to the doctor. M.B., distraught, then ran away from home and could not be located for a period of several weeks.

At trial, M.B. testified that Burke had sexual intercourse with her that night. She testified that it was not the first time and that Burke had had intercourse with her four or five times. According to M.B., he had repeatedly threatened her, and she had submitted out of fear of what he would do. The last time before the October 1st incident that Burke had had intercourse with her was two days earlier. M.B. testified that she had cried loudly. M.B.'s half sister, A.B., testified that she had heard her father tell M.B. to take her clothes off and heard M.B. crying on that night.

Burke did not testify but his version of the events came from a statement he made to the police, and a stipulation entered in evidence. Burke stated he had never had intercourse with M.B. or any of his children. As to the night of October 1st, he went out that evening with a woman he knew named Powell and had intercourse with her. He had been drinking at the Montana Club and became very intoxicated during the course of the night. He went to Cecilia's house and removed his clothes to sleep on the couch. Later, he went to the bathroom because he became sick. He said he must have accidently gone into M.B.'s room and fallen asleep.

I. PRE-INDICTMENT DELAY

Burke asserts as his first claim that he was deprived of due process of law through pre-indictment delay. ¹ The alleged rape occurred on October 1, 1976. The original indictment was brought on February 25, 1977. ² Thus, Burke complains of a delay of approximately five months.

In Coffey v. State, 585 P.2d 514, 519 (Alaska 1978), on rehearing, 596 P.2d 10 (Alaska 1979), we stated that, in resolving questions of pre-indictment delay:

Two factors are to be considered under both federal and state law: (1) the reasonableness of the delay and (2) the resulting harm to the accused.

Although burden of proof is on the defendant to show the absence of a valid reason for the delay and the fact of prejudice, the state has the burden, once the issue is raised, to come forward with reasons for the delay. Once reasons are advanced, the defendant must show that they do not justify the delay. ³

In the case at bar, the reasons advanced in explanation of the delay by the state were as follows:

An initial two week delay was caused by the fact that (the victim) had run away from home. An additional month was used locating Burke at a remote work camp on the North Slope and taking his statement..... The next portion of the delay was taken up by an attempt to locate Burke's ... witness. This search was made in January, 1977.... (A) substantial portion of the delay in this case was due to the State's good faith effort to conduct an impartial investigation and locate defense witnesses. ⁴

These reasons were developed during a pretrial hearing on Burke's motion for dismissal due to pre-indictment delay. State Trooper James Hildreth was the chief investigatory officer on the case. He first interviewed M.B. after she had turned herself in, having been away from home for two weeks. Hildreth also interviewed Mrs. Burke and the other daughters. Then, Hildreth was temporarily transferred to pipeline duty for thirty days and from November 15 to December 15th, the case lay dormant. Hildreth first presented the case to the district attorney's office prior to his reassignment, and the district attorney who reviewed the case requested that Burke be interviewed. After Hildreth's return, he attempted to locate Burke who was a cook at a camp on the pipeline. An interview was finally taken by another trooper just prior to Christmas. After receiving Burke's statement, Hildreth again contacted the district attorney's office. The district attorney this time requested that Hildreth attempt to locate Ms. Powell. Between Christmas and his final presentation of the case to the district attorney's office shortly before the February 25 grand jury indictment, Hildreth did try to recontact Burke and to uncover more information about the woman Burke had seen earlier on the evening in question.

The state explained the period of delay by stating that the troopers were actively investigating the case from October 1 through the end of the year, and that, after that period, the active investigation was at a standstill. The period from January 1 until the indictment on February 25 "was the time required by the district attorney's office to evaluate the case, get ahold of the witnesses and actually do the grand jury (proceedings)."

The alleged prejudice from the delay was that Burke was unable to substantiate his version of events prior to his arrival at his former wife's home. In particular, Burke alleges that the delay resulted in the loss of one witness, Helen Powell, and the loss of memory in another, the hotel clerk at the Arctic Inn. Burke asserted that his witnesses would substantiate his version of the events of October 1: that he had gone out drinking with Ms. Powell, then had sexual intercourse with her in the Arctic Inn, and that when he left the hotel to go to Cecilia Burke's home, he was in a state of extreme intoxication. The relevancy of such testimony was asserted to be that, given his state of extreme intoxication and the fact that he had just had sexual intercourse with another woman, it is unlikely that he would have forced his stepdaughter to have intercourse with him; further, the testimony would corroborate Burke's statement that he accidentally fell asleep in M.B.'s bed due to his degree of intoxication.

In support of the claim of prejudice, Burke filed affidavits by Susan Connolly, who also testified at the initial hearing on the motion to dismiss. Connolly, an experienced investigator, was first brought in by defense counsel to work on this case on March 25, 1977. Connolly stated that she made continuing efforts to contact the woman who Mr. Burke stated he was with that evening, identified as "one Helen Powell, who in the fall of 1976 was living at 1227 East 11 Avenue in an apartment complex," and "that (Ms. Powell) was in the Anchorage area and capable of being reached ... up until February, 1977, when according to my information she departed Alaska and moved to Texas to a city which I have been unable to ascertain." Ms. Powell was apparently a transient person, paying rent by the day rather than the month. Burke had been introduced to Powell earlier in the summer on a previous leave from the pipeline and had a very superficial relationship with her. Ms. Connolly had also contacted the owner of the Arctic Inn Motel regarding Burke's stay during the evening of October 1. The hotel records reflect that Burke was registered for approximately a week to ten days around October 1, but that the owner did not remember Burke's activity on the night in question.

At trial, the state attempted to mitigate any prejudice from the pre-indictment delay by entering into the following stipulation which was read to the jury:

(1) Earlier on the evening of September 30-October 1, 1976, defendant, Mr. Burke, was with a woman.

(2) Both parties had been drinking that evening at the Arctic Inn and the Montana Club.

(3) The defendant, Luther Burke, had sexual intercourse with said woman in a room at the Arctic Inn that night, prior to going to 1036 West 74th, the residence of Mrs. Burke and her three children, (M.B.) (A.B.) and (S.B.).

(4) That if said woman were called to testify on behalf of Mr. Burke, she would so testify; and in fact she would be telling the truth.

Burke argues that the stipulation was wanting in its failure to: (1) indicate the...