Putnam v. State

• Decision Date: 19 December 1980
• Docket Number: No. 3475,3475
• Citation: 629 P.2d 35
• Parties: Wayne F. PUTNAM, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 35

629 P.2d 35

Wayne F. PUTNAM, Appellant, v. STATE of Alaska, Appellee.

No. 3475.

Supreme Court of Alaska.

Dec. 19, 1980.

Mary E. Greene, Thomas Nave, Asst. Public Defenders, Fairbanks, Brian Shortell, Public Defender, Anchorage, for appellant.

W. H. Hawley, Asst. Atty. Gen., Anchorage, Avrum M. Gross, Atty. Gen., Juneau, for appellee.

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

OPINION

BURKE, Justice.

On July 16, 1976, Wayne F. Putnam was indicted on charges of arson, burning with intent to defraud an insurer and obtaining money by false pretenses. ¹ Following a trial by jury he was convicted on all three charges. The court suspended the imposition of sentence for five years and placed Putnam on probation, on the special conditions that he serve 90 days in jail and pay $170,801.00 in restitution. He now appeals contending that the trial court erred in failing to dismiss his allegedly invalid indictment and in refusing to strike the testimony at trial of one of the state's witnesses or grant other relief as a sanction for the state's failure to produce or explain the loss or destruction of two taped interviews with this witness. The state cross-appeals maintaining that the sentence imposed was too lenient. We conclude that the case must be remanded for a further evidentiary hearing concerning the circumstances surrounding the loss or destruction of the tapes. In the event that it is unnecessary to reverse the conviction as a result of the further hearings, we have decided to pass on the sentence appeal so that an additional appeal on that point will be unnecessary. We expressly disapprove of the sentence imposed as being too lenient.

At approximately 6:00 p. m. on December 6, 1974, a fire broke out in the carpet division of Putnam Services, Inc., in Fairbanks, Alaska. This fire resulted in extensive damage to the business. The circumstances surrounding the fire appear to be as follows.

Wayne Putnam, President of Putnam Services, Inc., was in serious financial difficulty prior to the fire. He was behind in his payments in a creditor payback plan and was consistently writing checks which were returned for insufficient funds. In addition, on the day of the fire he had been served with a notice to vacate the premises because of his failure to pay rent. Despite his poor financial condition, Putnam had doubled the fire insurance on his inventory, obtaining the maximum coverage available, on November 1, 1974.

Putnam claimed that on the day of the fire he had left the building with his wife and two children between 5:30 and 6:00 p. m. to catch a plane to Anchorage. He was in fact on this plane, which was due to depart at 7:30 p. m., when he was notified of the fire. However, paperboy William Dennis, as he made his collection rounds, saw Putnam apparently checking the doors of the building between 6:00 and 6:10 p. m. When he left the area approximately three minutes later, Dennis did not see Putnam, but as he walked away from the building, he saw bright flames at the northeast corner of the building. Dennis, however, did not report the fire because he believed it was only someone burning trash. Michael Rice, an employee of Putnam's, stated that at approximately 5:30, when Rice and Bruce Putnam left the building to deliver carpet, Wayne Putnam was left alone at the business.

After the fire, Putnam submitted proof of loss statements to his insurance company totalling $78,994.99. This amount was subsequently paid to Putnam by the insurance company. In support of his proof of loss statements, Putnam admittedly submitted invoices signed by himself and Toby Chastine indicating that Putnam had paid $34,417.75 to Chastine for a shipment of carpets which had purportedly been delivered on November 26, 1974. Chastine originally maintained that he had shipped and been paid for this carpet. However, in a second interview with Investigator Hildreth, Chastine admitted that the shipment had never been made and that at Putnam's request he had drawn up false invoices which Putnam had subsequently submitted to the insurance company.

On July 16, 1976, the grand jury indicted Putnam on charges of first degree arson, burning with intent to defraud an insurer and obtaining money by false pretenses. Putnam was tried and convicted on all three charges. This appeal and cross-appeal followed.

We turn first to Putnam's challenge of the validity of the grand jury indictment. ² Putnam's first argument goes to the presentation of hearsay evidence. In Alaska, hearsay testimony which is not subject to a recognized exception to the hearsay rule may be presented to a grand jury only upon a showing of "compelling justification." Adams v. State, 598 P.2d 503, 508 (Alaska 1979); Alaska Criminal Rule 6(r). ³ Putnam specifies three instances where no justification was given for the use of hearsay and a number of other instances where the purported justification was that the hearsay declarant was out of state but would be available for trial. ⁴ We note however, that in his arguments before the trial court Putnam conceded that the witnesses' absence from the state was a sufficiently compelling justification to allow the use of hearsay. Having conceded this point below, Putnam cannot now reverse his position on appeal. Alaska Crim.R. 12(b) and 12(e). ⁵ We thus need only examine the three specific instances where Putnam contends that hearsay evidence was presented without any justification at all.

The first instance where hearsay evidence was presented without justification is Assistant Fire Chief Schechter's testimony that William Dennis told him that he saw Putnam at the scene just before the fire broke out. We do not feel the lack of justification requires dismissal of the indictment in this instance. Hearsay testimony relating Dennis' statement was subsequently presented to the grand jury by two more witnesses. On each of these occasions the state justified its use of hearsay by explaining that Dennis was currently out of the state but would be available for trial. As noted above, Putnam conceded that this was a valid justification for the use of hearsay. Thus, although Criminal Rule 6(r) was violated by the presentation of this unjustified hearsay testimony, we are convinced that the defendant was in no way prejudiced. See State v. Taylor, 566 P.2d 1016, 1019 (Alaska 1977).

The second instance of allegedly unjustified hearsay evidence was Marion Bennett's testimony that while employed by Putnam after the fire he received a number of calls at work from creditors of the business seeking to collect on their debts. The state responds that under the verbal act doctrine Bennett's testimony was not within the purview of Criminal Rule 6(r). We find the state's argument persuasive. Testimony regarding an out of court statement is only hearsay when it is offered to prove the truth of the matter stated. Watson v. State, 387 P.2d 289, 293 (Alaska 1963). Where such testimony is offered merely to establish the fact that the statement was made, and not to prove the truth of the matter stated, the hearsay rule does not apply. Id.; Frink v. State, 597 P.2d 154, 162 (Alaska 1979). For example, testimony that telephone calls from gamblers were received at a defendant's residence has been held admissible to prove the nature of the defendant's enterprise. ⁶ Similarly, testimony that telephone calls were received from a business' creditors is admissible as circumstantial evidence of the financial condition of the business.

Putnam's final claim of unjustified hearsay evidence was Investigator Hildreth's testimony to the effect that carpet mill owners and truck rental agencies in Georgia denied that a shipment of carpet was sent to Putnam's business in late November 1976. We decline to consider this question since this statement was not objected to before the trial court in Putnam's motion to dismiss the indictment. See Anthony v. State, 521 P.2d 486, 496 (Alaska 1974); Taggard v. State, 500 P.2d 238, 243 (Alaska 1972).

Putnam next maintains that even if the hearsay testimony presented to the grand jury can survive scrutiny under Criminal Rule 6(r), it cannot satisfy the additional requirements of detail and reliability imposed by decisions of this court. ⁷ Once again, however, this argument was not raised before the trial court. We therefore decline to consider the question. Id.

We next turn to Putnam's contention that the prosecutor improperly influenced the grand jury. In essence, Putnam argues that through Investigator Hildreth's testimony the prosecutor influenced the grand jury in ways impermissible at trial. Putnam's primary objection goes to Investigator Hildreth's testimony concerning the character of hearsay declarants Chastine and Dennis. It is Putnam's position that by eliciting character evidence concerning the credibility of these hearsay declarants from Investigator Hildreth, the main investigator in the case, the state overstepped the proper bounds of prosecutorial conduct. We disagree.

We have often stated that when presenting a case to a grand jury the prosecutor should not make statements or arguments which would influence the grand jury in a manner which would be impermissible at trial. Coleman v. State, 553 P.2d 40, 48 (Alaska 1976); Anthony v. State, 521 P.2d 486, 496 n.37 (Alaska 1974) quoting American Bar Association Standards Relating to the Prosecution Function § 3.5(b) (approved draft 1971). Putnam would have us extend this rule to statements volunteered by law enforcement witnesses. We decline to take this step. Absent some evidence that the prosecutor knew or should have known that the response to his question would contain improper evidence, we refuse to hold him answerable for the utterances of the witness. By this we do not mean to imply that a prosecutor need not be concerned with the answers which his questions might elicit. He remains under a duty to present to the grand jury...