Frink v. State
| Decision Date | 29 June 1979 |
| Docket Number | No. 3106,3106 |
| Citation | 597 P.2d 154 |
| Parties | Glenn Matthew FRINK, Appellant, v. STATE of Alaska, Appellee. |
| Court | Alaska Supreme Court |
Sue Ellen Tatter and Walter L. Carpeneti, Asst. Public Defenders, and Brian Shortell, Public Defender, Anchorage, for appellant.
W. H. Hawley, Asst. Atty. Gen., Anchorage, Avrum M. Gross, Atty. Gen., Juneau, for appellee.
Before BOOCHEVER, C. J., and RABINOWITZ, CONNOR, BURKE and MATTHEWS, JJ.
Glenn Frink appeals his conviction of first degree murder, urging four grounds of error: first, inadmissible hearsay and character evidence was presented to the grand jury and the remaining evidence was insufficient for indictment; second, the prosecutor's failure to present exculpatory evidence to the grand jury requires dismissal of the indictment; third, the trial court incorrectly admitted the results of a search of defendant's car; and fourth, impermissible character evidence was introduced at trial. We reject each of these grounds and affirm the conviction. 1
An analysis of defendant's claims of error requires that we review the facts in some detail.
Phillip Hillier was found dead in his car by a co-worker on Monday, November 24, 1975, after Hillier did not show up for work. The grand jury indicted Glenn Frink for the first degree murder of Hillier, and at trial, a jury found Frink guilty of the crime as charged.
Hillier had been romantically involved with Karen Check, with whom Frink had previously been involved. The motive asserted by the state was Frink's jealousy of boyfriends of Karen Check.
Frink had had a relationship with Check over three and one-half years. Testimony at trial revealed that the relationship was a stormy one. The two, Check and Frink, argued constantly, and their fights occasionally included violence. Check moved in with Frink in November of 1974. She moved out as a result of particular fights for short periods a number of times, and finally moved out not to return, in June of 1975. At that point, Frink and Check continued to see each other exclusively but lived apart. The fighting decreased for a time, but then reverted to the earlier pattern of constant arguing. Then, in October 1975, the two agreed to begin seeing other people.
At some point during this time, Check began, but not consistently, to refuse to speak to or see Frink. She sometimes directed the switchboard operator at her place of work to tell Frink either that she was busy or that she was out.
Check began to date other men. Frink was aware of this through conversations with Check as well as his having been present at her apartment when other men were present or expected.
In support of the state's theory that jealousy motivated Frink to kill Hillier, testimony was presented to the grand jury and at trial of previous incidents between Frink and people with whom Check was romantically involved. Those incidents are here outlined.
At the time Frink met Check and, for the first two years of their relationship, Check was married and living with her husband. Both Check and her former husband were allowed to testify to an incident that occurred in December 1973, in which Frink confronted her husband late at night at their home and demanded to speak with Karen Check alone. Check's husband testified that Frink discharged a pistol twice, that one shot hit near his foot, that the other was fired as he turned his back on Frink and walked into the house. The second shot was later found to have gone into the house. This incident led to Frink's conviction for careless use of a firearm. Frink admitted the incident but testified that he fired one shot into the air, and the other into the ground.
Another incident concerned Frink's statements to Carol Krizan, the switchboard operator where Check worked. On one of the occasions when Check directed that Frink be told that she would not see or speak with him, Krizan testified that Frink appeared and asked to see Check. Krizan told Frink that Check "isn't in." Krizan testified that Frink responded: "Well I won't hurt Karen (Check), but I'll get her friends."
In another incident occurring November 11, 1975, Frink came to the door of Check's house. After knocking at the door and receiving no answer, Frink went around back, climbed over two fences, and entered through an unlocked back door. Frink appeared very drunk, and upon finding Check in the company of another man (Bill Hodgson), told Hodgson to leave. Hodgson refused, and according to both Check and Hodgson, Frink said to Hodgson: "(E)ither you kill me now while I'm drunk or I'll kill you tomorrow when I'm sober." 2 Check then called the police. The officer and Hodgson testified that in being removed, Frink stated to Hodgson, "If you sleep with her tonight I'll kill you."
Check also testified that she received an anonymous phone call one evening the week before Hillier's death, and that Frink told her that the call had been from a man that Frink had hired to kill her. Frink further told Check that he had called it off because he realized he was unable to harm her.
There was testimony describing the relationship between Check and the victim, Hillier. Check testified that she first dated Hillier on the Friday prior to his death. Check testified that Frink became aware of Hillier because Frink was present at her house when Hillier arrived to pick her up on that Friday. The two, Frink and Hillier, were introduced; all three left the house whereupon Check and Hillier separated from Frink. Check testified that after that meeting, she told Frink that she expected to continue to see Hillier. On Saturday, Frink was again at Check's house when she expected Hillier to arrive to pick her up for the evening out. Check asked Frink to leave, telling him she expected Hillier and that she did not want Frink there when Hillier arrived. Frink departed before Hillier appeared. Frink admitted that he returned to Check's house throughout the evening waiting for her to return. Check did not return home until approximately noon the following day (Sunday) at which time Hillier dropped her off. Frink was seen in his car near Check's house at that time by a friend of Check's. Frink admitted on the stand that he had seen Hillier drop Check off, and that he had followed Hillier home to Government Hill. Frink further admitted that he confronted Hillier at his house then and asked Hillier to discontinue seeing Check for at least a period of a few days. Frink reported that Hillier refused his request stating "we were all adults and we do as we please." Check stated to a police officer that Hillier told her that Frink threatened Hillier's life if he did not discontinue seeing Check. This evidence was not introduced at trial on the ground that it was inadmissible hearsay. However, Check was allowed to testify that on that Monday, she had a very short phone conversation with Frink in which she told him not to threaten her friends any more. Frink denied making any threats against Hillier in their Sunday conversation or at any other time.
Later on that same Sunday, Hillier returned to Check's house for dinner. That was apparently the last time Hillier was seen alive. The next morning, Monday, Hillier did not appear for work, and that afternoon, a co-worker went to Hillier's house and found Hillier dead in his car in the driveway. The police were summoned, and it was determined that death was by shotgun blasts and had occurred earlier that morning.
The police interviewed Hillier's neighbors. Kipling Dam testified before the grand jury to unusual observations he had made the morning of the homicide. Dam reported that, when he went out at 7:05 to warm up and clear off his car, he saw "a blue or blue-green . . . late '60's Impala," parked behind his own with the engine idling and the windows cleared. Dam stated that he had never before seen the car in the neighborhood. Kip Dam testified that the occupant was slumped in the driver's seat and was behaving nervously. Kip Dam stated that he could not identify the occupant because Kip Dam testified that the car was still there when he left at 7:15. Police officers later showed Dam a 1970 Impala at the police parking lot which he felt was "identical" to the one he observed on November 24. Kip Dam acknowledged that he had earlier stated he thought it was a late '60's model while the one he identified was a 1970 model. 3
The police did not focus on a suspect until Check came to see them on Tuesday, the day after Hillier was found dead. Check volunteered to the police the story of her relationship with Frink and Hillier's involvement. The police also learned from Check that Frink owned and drove a blue Chevrolet. The police corroborated her story by checking the police reports on the incidents with Check's former husband and with Hodgson. Check, at that time, related to the police that Hillier had told her that Frink had threatened him the day before his death.
Frink was put under surveillance by the police. Frink was seen entering Kelly's Photo Shop at approximately 4:00 p. m. Tuesday. As Frink returned to his car and began to back it out of the parking lot, he was approached by four plainclothes officers. The officers identified themselves as police and asked Frink to exit his vehicle. He complied and was patted down. At this point, testimony conflicts. Specifically, Officer Rice testified that he believed he informed Frink at the time of the patdown that the officers were investigating the Hillier homicide, while Frink testified that he was not informed of the subject of the police investigation until after the search of his car.
Frink gave the officers permission to search the car. The search of the back seat yielded two spent shotgun casings. The officers then asked to look in the trunk. In response, Frink opened the trunk of the vehicle. In the trunk, the officers found a near-full...
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