Gunnerud v. State

• Decision Date: 16 May 1980
• Docket Number: No. 3795,3795
• Citation: Gunnerud v. State, 611 P.2d 69 (Alaska 1980)
• Parties: Shelly GUNNERUD, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 69

611 P.2d 69

Shelly GUNNERUD, Appellant, v. STATE of Alaska, Appellee.

No. 3795.

Supreme Court of Alaska.

May 16, 1980.

Dennis Kelso and Mary E. Greene, Asst. Public Defenders, Fairbanks, Brian C. Shortell, Public Defender, Anchorage, for appellant.

Anne Carpeneti and Patrick J. Gullufsen, Asst. Attys. Gen., Avrum M. Gross, Atty. Gen., Juneau, for appellee.

Before RABINOWITZ, C. J., CONNOR, BOOCHEVER and MATTHEWS, JJ., and STEWART, Superior Court Judge.

OPINION

BOOCHEVER, Justice.

Shelly Gunnerud appeals her conviction for possession and sale of heroin in violation of AS 17.10.010, ¹ claiming several errors were committed by the court. Appellant argues that the superior court (1) improperly denied discovery of a psychiatric report concerning an adverse witness; (2) erred in failing to grant a mistrial after alleged prosecutorial misconduct; and (3) erred in allowing the playing of a tape recording which included evidence of Gunnerud exercising her constitutional right to remain silent after her arrest. We disagree with the first two contentions, but find the last alleged error requires a reversal and remand for a new trial.

In September, 1976, Gunnerud moved into a one-bedroom apartment which was then occupied by Earl Johnson, and continued to share this apartment with Johnson until both were arrested for the present matter on April 26, 1977. Earlier that day, Rondi Baker, a probationer, was found in possession of marijuana and cocaine by her probation officer. After being formally arrested and while on the way to the Fairbanks Correctional Center, Baker made an offer to the probation officer to serve as an informant for heroin drug "buys" concerning four people. After the officer contacted Baker's sentencing judge and the district attorney for possible objections, he arranged an interview for Baker with the head of the Area Wide Narcotics Team. ² Shortly thereafter, Baker arranged the alleged buy from Johnson and Gunnerud by telephone. The phone conversation itself contained no mention of drugs. ³

Before being taken to Gunnerud's apartment, Baker was strip searched. ⁴ A one-hundred-dollar bill, which had its serial number recorded, was given to Baker to use as "buy" money. She then went to Johnson and Gunnerud's residence.

Baker testified that upon entering the apartment she asked Johnson if she could purchase some heroin. She then placed a one-hundred-dollar bill on the living room table, which was picked up by Gunnerud. Johnson brought her a "bag" of heroin. Sometime during all of this, Gunnerud repaid Baker a debt with two twenty-dollar bills which Baker promptly used to purchase an additional forty dollars worth of heroin. Baker self-injected this second purchase in the bathroom of the apartment. She then called a cab and left. After being followed and kept under close surveillance, she met a police officer at a pre-arranged spot and gave him a yellow balloon which contained the heroin.

After receipt of the balloon, the police secured a search warrant for the residence. According to the police, when the warrant was served Gunnerud and Johnson ran to the rear of the apartment. They were found in the bathroom; Gunnerud sitting on the toilet seat and Johnson in front of her. The officers pushed them aside and recovered several balloons from the swirling water of the flushed toilet. Later, laboratory reports confirmed that these balloons contained heroin. Also recovered were various pieces of evidence, including $535.00 in currency contained in a hollowed-out encyclopedia found in the bedroom of the apartment. The same one-hundred-dollar bill given to Baker was part of this currency ⁵ and Gunnerud later testified that she knew where the encyclopedia was kept and that it was used as a place of safekeeping for cash.

I. THE DENIAL OF DISCOVERY OF THE PSYCHIATRIC REPORT ON WITNESS RONDI BAKER

Prior to trial on the original indictment (later dismissed), appellant requested discovery under Criminal Rule 16 ⁶ of any prior criminal convictions, psychiatric examinations, and records of police contacts to which the state had access concerning its key witness, Rondi Baker. The state filed a qualified opposition to the request, but the court issued an order to furnish such documents to the appellant. However, at a motion-to-produce hearing a few weeks later, the court learned of a probation officer's concern about the release of a psychiatric report on Baker, which was attached to a presentence report from a prior drug conviction. After reviewing the psychiatric report, which had been prepared by Baker's private physician, the court ordered it deleted from the presentence report. The reasons given were protection of Baker's privacy and the irrelevancy of the report regarding Baker's credibility as a witness. After a new indictment was filed, appellant renewed her motion for discovery of the report, principally because part of the presentence report that had been released mentioned Baker's having undergone electro-shock treatment. The state opposed the request, and immediately prior to the start of trial the court again considered the motion, but denied it because the report did not bear on Baker's credibility. Appellant asks us to find reversible error in the court's ruling. We decline to do so.

In Braham v. State, 571 P.2d 631 (Alaska 1977), cert. denied, 436 U.S. 910, 98 S.Ct. 2246, 56 L.Ed.2d 410 (1978), we adopted guidelines to assist us in meeting the goal of "full and free" disclosure expressed in Criminal Rule 16:

Non-disclosure (is) proper only if (1) the prosecution show(s) that discovery of the evidence would be inconsistent with protection of persons or enforcement of the laws and (2) the trial judge conclude(s) that the material was not relevant to the defense. If the district attorney fail(s) to show that disclosure would harm enforcement or protection efforts, the material must be disclosed. The question of relevance would then be decided in an adversary context; both counsel would have the opportunity to make their respective arguments.

571 P.2d at 643 (footnote omitted). Therefore, we must decide if the trial court properly applied this test to the fact situation before us.

It is clear to us that the prosecutor addressed the first issue in Braham with respect to the protection of persons or enforcement of laws. This was brought to the court's attention by written memoranda opposing appellant's requests, and at the first hearing. It is also clear to us that the trial court properly heard both sides of this argument in an adversary atmosphere and found the state's arguments to be persuasive.

At the first hearing, before viewing the medical records, the court said:

I'm not going to grant that motion unless Dr. Whelan can first advise that the history and the examination and diagnosis treatment or anything else or, any prognosis that he might have concerning this witness would be such as to bear upon her credibility. Or, could bear upon her credibility as a witness. And unless it be for that purpose, I can't see where she has to give a carte blanche . . . medical release. If it does, then I think that the medical records that do bear on her credibility should be.

Shortly thereafter the judge briefly viewed the file and said, "There's nothing else in here that . . . in my opinion, bears on credibility at all."

We agree with the trial court that it would be an unwarranted infringement of Baker's privacy, ⁷ and therefore inconsistent with the protection of persons, to grant access to Baker's private medical records unless the material was relevant. The trial court made the determination of relevancy a few minutes after passing on the issue of privacy. In reviewing that decision, we have carefully scrutinized the psychiatric report in question and conclude that the trial court was not in error in denying the appellant access to it. We are mindful of the appellant's concern over being denied effective cross-examination, but find upon reviewing the record that Baker was thoroughly examined on her credibility and reliability as a witness. Nor do we find that the psychiatric report would have contributed in any meaningful way to a more effective cross-examination. We find the trial court's determination to be substantially within our guidelines for judging relevancy and materiality. ⁸ Thus, the trial court did not abuse its discretion and the appellant was not denied her constitutional right of compulsory process.

II. THE COURT'S FAILURE TO GRANT A MISTRIAL DUE TO ALLEGED PROSECUTORIAL MISCONDUCT

Appellant claims that alleged prosecutorial misconduct against her co-defendant prejudiced her case as well.

During direct and cross-examination, appellant's co-defendant, Earl Johnson, was extensively questioned on his use of several aliases appearing with his picture on identification cards. Johnson maintained that he used the names only in obtaining employment. The following exchange took place when Mr. Call, the prosecutor, presented his closing arguments just before the jury was to deliberate:

MR. CALL: Now, these identification cards. I asked him whether he'd used some other names. He admitted using three different names, Earl Johnstone, Robert Price, and the name he used, he's given us now. . . . Note Earl's reasons for obtaining these false ID's. So his background couldn't be checked by his employers. I suggest that additional, logical, probable reason is that so the police and the District Attorney's office couldn't check his background either.

MR. KEEVER (co-defendant Johnson's counsel): Your Honor, I don't want to object and I don't like to be objected to when I'm making argument. The testimony is there, that's incorrect statement as I recall. There's also testimony there were no prior convictions that could have been checked. If they want to do that, let them produce their evidence.

THE COURT: Well, again I'm going to rely on the recollection of the jury as to what the evidence...