Keith v. State

• Decision Date: 30 May 1980
• Docket Number: No. 4003,4003
• Citation: 612 P.2d 977
• Parties: Robert L. KEITH, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 977

612 P.2d 977

Robert L. KEITH, Appellant, v. STATE of Alaska, Appellee.

No. 4003.

Supreme Court of Alaska.

May 30, 1980.

Walter Share, Asst. Public Defender, and Brian Shortell, Public Defender, Anchorage, for appellant.

David Mannheimer, Asst. Atty. Gen., 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.

Robert Keith was indicted for the second degree murder ¹ of Nicholas Krivitsky. After a jury trial, at which it was undisputed that Keith shot and killed Krivitsky, he was convicted of manslaughter. ² From this conviction, Keith raises five issues on appeal.

He claims error in the misstatement of fact and alleged material misrepresentation in the grand jury proceeding, alleged prosecutorial misconduct and objections as to both the giving and failure to give certain instructions. We find the exclusion of the victim's journal and the giving of an instruction upon the defendant's bad character to be errors, requiring a new trial.

I. BACKGROUND FACTS

On April 22, 1977, Robert Keith and a companion, Darlene Nelson, picked up a hitchhiker named Nicholas Krivitsky as they were driving out of Homer on their way to Anchorage. They stopped at the Anchor Inn on the way and all had breakfast. After breakfast, the three had drinks in the bar and took two six packs of beer and a pint of whisky with them. All three sat in the front seat of the car and were drinking heavily as they proceeded north toward Anchorage. Darlene either fell asleep or passed out from the alcohol on Keith's shoulder. She remembers nothing of the events which subsequently transpired, except that she awoke at one point hearing loud voices, but was almost immediately knocked out by a blow to the face. The blow came during an argument between Keith and Krivitsky. Shortly thereafter, Keith shot and killed Krivitsky.

Keith was the only witness to the shooting. Two other people who were driving by the turnout where the shooting occurred testified to seeing portions of the incident but no one witnessed the actual shooting. As to the events that led up to the shooting, Keith testified as follows.

During the drive Krivitsky began to behave strangely, becoming withdrawn, and he removed a .22 pistol which Darlene kept in the glove compartment of her car. When Keith asked him where the gun was, Krivitsky denied all knowledge of it, but Keith later noticed the gun in Krivitsky's hands and took it away from him. At that point, there was an argument which ended with Krivitsky getting in the back seat, upon Keith's insistence. Keith placed the .22 pistol on the seat beside him only to notice that it was missing again a short while later. Krivitsky said that he had dropped the pistol out the window but Keith did not think he could have done so without him noticing. Keith next noticed Krivitsky in the back seat with a .44 magnum which Keith owned and .44 shells in his hands. Keith attempted to take the gun away from Krivitsky with one hand while he continued driving using the other hand. During the struggle over the gun, Darlene was knocked out but Keith did manage to get the gun away from Krivitsky and into the front seat with him. Keith then pulled off the road into a turnout and ordered Krivitsky out of the car. They eventually engaged in another struggle over the gun outside the car which ended with Krivitsky on the ground and Keith standing over him pointing the .44 at him. Keith did not remember how the revolver became cocked, but he apparently attempted to uncock it, stepping back away from Krivitsky, and Krivitsky kicked him, causing the gun to go off. Keith testified that he did not realize Krivitsky had been shot in the head and killed until after it happened. Keith dragged the body to a nearby embankment and dumped it over the edge; then he returned to the car to check on Darlene. He testified that he was attempting to take her to a hospital in Soldotna when he was stopped at a road block a short while later and arrested. The .22 pistol was never recovered, but the .44 magnum was found in the car when Keith was arrested.

II. MISSTATEMENT OF FACT BEFORE THE GRAND JURY

Keith asserts that he was denied the rights to due process of law ³ and an impartial grand jury ⁴ guaranteed by the Alaska Constitution. Specifically, Keith alleged that there was a material misrepresentation of fact and a failure to present exculpatory evidence to the grand jury. Both claims are based on the inaccurate testimony of a police officer as to the time at which swab samples for detecting the presence of certain materials found in gunshot residue, barium and antimony, were taken from the hands of Keith, Nelson, and Krivitsky.

The swabs were sent to a chemical laboratory for analysis and an analyst from the laboratory testified at the grand jury proceeding as to the results of his tests. He concluded that neither Krivitsky nor Nelson had handled or fired a gun during the period in which the shooting occurred but that Keith had. The negative results on Krivitsky's swab tests were significant because the grand jury had before it statements of Keith that Krivitsky had handled both guns and that the fatal shot had occurred during a struggle over the .44 magnum.

Accuracy of swab test results is dependent on the time at which the swabs were collected since the swab test is unreliable after a certain period of time. Trooper Sumey testified to the grand jury that he ordered another trooper to take the swab test of Krivitsky at the Kenai morgue. Although he was not present for the test, Sumey told the grand jury that the test occurred at 7 p. m. on April 23, approximately four and one-half hours after the shooting. The laboratory analyst testified to the grand jury that there is generally a six-hour maximum for positive test results if the subject is alive and moving about, but that the time period for positive results is much longer, up to a few days, if the subject is dead and the body is not exposed to rain or humidity.

Later, it was discovered that the victim's hands had not been swabbed until sometime between 10:30 and 11:30 p. m., eight or nine hours after Krivitsky's death. Keith's trial attorney discovered the error in the transcript the evening before the omnibus hearing. This matter was brought to the superior court's attention at the omnibus hearing when Keith's counsel moved for dismissal of the indictment. Officer Sumey testified that he only later learned through checking police radio logs that the officers were not at the morgue until approximately four hours later than he had told the grand jury. The superior court denied the motion, stating:

(U)nder the testimony given by the expert witness, Mr. Green, a delay of four hours in conducting the swab tests on a corpse would have little or no significance. Therefore, the misrepresentation which appears to have been inadvertent does not have sufficient materiality to merit dismissal. (citation omitted)

From this ruling Keith appeals, claiming the superior court erred in not finding this to be a material misstatement to the grand jury and a failure on the part of the prosecutor to present exculpatory evidence.

An attack on an indictment has not previously come before this court in exactly this form. However, in Taggard v. State, 500 P.2d 238 (Alaska 1972), we considered the related problem of hearsay evidence of questionable reliability presented to a grand jury. The general standards and concerns in evaluating attacks on an indictment, as set forth in Taggard, are also appropriate in situations such as the case at bar.

The indictment is the foundation underlying a criminal prosecution. If the indictment is seriously flawed, the conviction cannot stand.

A mere formal defect does not require dismissal of an indictment after the guilt of the defendant has been established at a fair trial. But courts do not hesitate to dismiss an indictment, even after a conviction when the defect in the indictment is substantial. The conviction must be overturned when an indictment is invalid and the error was properly preserved by a timely objection prior to trial. ⁵

The giving of an inaccurate time regarding the collection of data for the swab test was clearly an error. Since the error was properly preserved at trial, we must next determine whether the defect was substantial. The falsehood in this case seems to have been unintentional.

Alaska Rule of Criminal Procedure 6(q) provides in part:

The grand jury shall find an indictment when all the evidence taken together, if unexplained or uncontradicted, would warrant a conviction . . . .

Therefore, if the unintentional misstatement goes to a nonmaterial fact that would not substantially affect the grand jury's conclusion, it would not be reversible error. When one grand juror specifically asked the expert analyst of the swabs about the six-hour maximum for positive tests results in relation to the deceased, the expert answered as follows:

Six hours is on an individual that is allowed to move around at his own freedom. An individual or a corpse, there is much, much longer time because obviously they're not putting their hands in their pocket, they're not rubbing their hands together, they're not washing their hands or anything. You have much, much longer time even days on a corpse it just doesn't fly away, it's there's unless rain or something washes it, if he's exposed to environment where there is a large amount of of humidity or rain of this sort, then you would have a obvious shorter length of time. ⁶

There was testimony by one of the investigating state troopers that it did not rain at all between the time Krivitsky died and his body was taken to the morgue. Thus, it does not appear from the four-hour difference between the time the grand jury was told the swab tests were taken and the actual time of the tests would have significantly...