Stevens v. State

• Decision Date: 07 July 1978
• Docket Number: No. 3134,3134
• Parties: Gary STEVENS, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 621

582 P.2d 621

Gary STEVENS, Appellant, v. STATE of Alaska, Appellee.

No. 3134.

Supreme Court of Alaska.

July 7, 1978.

Barbara J. Miracle and Mark Weaver, Asst. Public Defenders, Brian C. Shortell, Public Defender, Anchorage, for appellant.

Glen C. Anderson, Asst. Dist. Atty., Joseph D. Balfe, Dist. Atty., Anchorage, Avrum M. Gross, Atty. Gen., Juneau, for appellee.

OPINION

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

RABINOWITZ, Justice.

Gary Stevens was indicted on two counts of rape. ¹ The first count charged Stevens with the rape of V.H. on February 4, 1976; the second count charged him with the rape of T.F. on February 23, 1976. After trial by jury, Stevens was found guilty on both counts. Subsequent to the jury's return of the guilty verdicts, Stevens pleaded nolo contendere to a third count of the rape of M.L. and was sentenced by the superior court to serve concurrent terms of fifteen years on each count. In this appeal, Stevens has raised in part, the following issues:

1. Whether the superior court erred in denying Stevens' motion for mistrial based on the failure of the state to disclose police reports which contained information used on cross-examination by the state to impeach appellant's alibi witnesses;

2. Whether the superior court erred in denying appellant's motion for severance. ²

We shall first address the issue involving the failure to disclose the police reports.

By pretrial order, the superior court required the prosecution to:

disclose to defense counsel and make available for inspection and copying all information and material within his possession and control which he is required to disclose by subsections (b)(1); (b)(2) and (b)(3) of Rule 16, Rules of Criminal Procedure. Such materials coming into his possession or control after that date shall be disclosed promptly without the necessity of a request or further order of this court.

Pursuant to the terms of this order, Stevens was entitled to discovery of all police reports containing statements of persons with relevant information. ³ In addition, Stevens filed a subsequent motion for discovery, requesting "continuing discovery of all information subject to discovery under pertinent portions of Criminal Rule 16(b)(1), with respect to any information or tangible evidence in control or coming into control of the prosecuting attorney which were not contained in the initial police reports transmitted to defendant's counsel." ⁴

The police report in question contained summaries of interviews with two of Stevens' alibi witnesses as to the alleged February 23, 1976 rape of T.F. In that report Diane Stevens, wife of appellant, was reported stating that she was driving Gary Stevens' car on February 23, 1976, and that she went to Marilyn McFadden's house and stayed there until around 12:00 p. m. An interview with Marilyn McFadden contained in the same police report also stated that Diane Stevens left the McFadden home at approximately 12:00 p. m. ⁵ Both of these witnesses testified at appellant's trial that Ms. Stevens left the McFadden residence in appellant's car at approximately 12:30 p. m. On cross-examination of each witness, the prosecutor used the undisclosed police report to establish that in prior police interviews both Ms. Stevens and Ms. McFadden had set 12:00 p. m. as the departure time. ⁶ Moreover, on rebuttal the prosecution called the police officer who conducted the earlier interviews with Ms. Stevens and Ms. McFadden. The police officer testified that Diane Stevens had previously stated that she left the McFaddens' residence at 12:00 p. m. ⁷

In Des Jardins v. State, 551 P.2d 181 (Alaska 1976), we were required to assess the prejudicial impact of the prosecution's failure to disclose the names of four witnesses for the state until just prior to trial. ⁸ While we held that it was error under the particular circumstances for the superior court to have denied Des Jardins' motion for a continuance, ⁹ we concluded that the error was harmless under the test articulated in Love v. State, 457 P.2d 622 (Alaska 1969). ¹⁰ Nevertheless, we took the occasion to issue an admonition against further violations of Alaska's procedural rules pertaining to criminal discovery. More particularly, we stated:

On the other hand, the lack of prejudice here was purely fortuitous. In future cases we will continue to scrutinize prosecutorial conduct in this area, and will not hesitate to reverse where it appears that the defendant has been prejudiced by such action. ¹¹

Rule 16, Rules of Criminal Procedure encompasses broad purposes, namely:

In order to provide adequate information for informed pleas, expedite trial, minimize surprise, afford opportunity for effective cross-examination, and meet the requirements of due process, discovery prior to trial should be as full and free as possible consistent with protection of persons, effective law enforcement, and adversary system. ¹²

By virtue of the explicit provisions of Rule 16(b)(1)(i), and the superior court's order pertaining to the prosecution's duty to make discovery, ¹³ we hold that in the case at bar the government was under a duty to disclose to the defense the subject police report. ¹⁴ The prosecution's unexplained failure to disclose the police report clearly contravened the policies which underlie Rule 16.

Having concluded that the prosecution failed to comply with both Criminal Rule 16 and the superior court's discovery order, we must further determine whether the error was prejudicial or harmless under the Love test. Unlike the factual situation in Des Jardins v. State, 551 P.2d 181 (Alaska 1976), Stevens' counsel did not learn of the impeaching evidence until after it had been used to attack the testimony of two of his alibi witnesses to the T.F. rape charge, and thus a continuance would have been to no avail. Further, the use by the prosecution of this evidence deprived Stevens' counsel of the opportunity of reviewing the statements of Ms. Stevens and Ms. McFadden, and to assess if they were made under duress, whether a guilty plea should therefore have been entered, as well as determining whether these alibi witnesses would nevertheless be called to testify at trial of the T.F. rape charge. ¹⁵

On the other hand, the prosecution presented strong cases against Stevens as to both rape charges. Study of the record reveals that both victims had more than adequate opportunity to observe their assailant, had no difficulty in subsequently identifying Stevens, and that medical testimony confirmed the fact that the victims had experienced sexual intercourse within 24 to 48 hours prior to the time their respective medical examinations had been conducted. ¹⁶ The defense did not contest the fact that the victims had been sexually assaulted, rather, the defense asserted that Gary Stevens was not the assailant. In support of this position, Stevens presented alibi testimony going to both counts in question.

In light of the foregoing, we are led to the conclusion that the prosecution's failure to comply with Criminal Rule 16 and the superior court's discovery order, was under the Love standard, harmless error as to the V.H. rape charge. ¹⁷ We reach this conclusion based on the strength of the government's case and the fact that the undisclosed impeaching evidence related only to the events which occurred on February 23, 1976, the date of the alleged rape of T.F.

Resolution of the harmless error issue as it relates to the T.F. rape charge presents a much more difficult problem. The two primary alibi witnesses offered by the defense as to the T.F. rape charge testified that Ms. Stevens did not leave the McFadden residence until 12:30 p. m. and that during this time, Gary Stevens was purportedly at home babysitting. The time Ms. Stevens left the McFadden residence with Gary's vehicle is of particular significance, since T.F. testified that while hitchhiking she was picked up by Gary Stevens at approximately noon. ¹⁸ According to the state's undisclosed impeaching evidence, Ms. Stevens had told a police investigator that she left the McFadden residence at 12:00 p. m. and that Ms. McFadden had stated to the same investigator that Ms. Stevens had left the McFadden residence at 12:00 p. m. on the day in question. Ms. Stevens denied telling the state's investigator that she left the McFadden residence at noon. Ms. McFadden, when confronted with the assertion that she had told the investigator that Ms. Stevens left at 12:00 p. m. responded that she thought that she had made the statement, but offered an explanation for the apparent inconsistency. ¹⁹ A third alibi witness, Mr. McFadden, testified that Ms. Stevens left his residence at about 12:30 p. m. ²⁰ In final arguments to the jury, the prosecution referred to the inconsistencies in Ms. Stevens' and Ms. McFadden's testimony which were disclosed through the questioned undisclosed police report, as well as through the testimony of the investigating officer to whom the inconsistent statements were purportedly given. Of necessity, these purported inconsistencies were also alluded to by defense counsel in his final argument to the jury.

Analysis of the impact of the undisclosed police report in the context of the entire trial record has led us to the conclusion that a new trial must be had as to Gary Stevens' conviction on the T.F. rape charge. We cannot fairly say that the disputed impeaching evidence of Ms. Stevens and Ms. McFadden concerning the time the former left the latter's residence on February 23, 1976, did not appreciably affect the jury's verdict as to the T.F. rape count. Love v. State, 457 P.2d 622, 632 (Alaska 1969). Thus, we conclude that the admission of the questioned evidence was prejudicial error.

One other issue remains to be addressed in detail. Earlier we noted that Stevens had specified as error the superior court's failure to grant a severance, under Rule 14, Rules of Criminal...