Thomas v. State, 040820 AKCA, A-12715

Docket Nº:A-12715
Opinion Judge:HARBISON Judge
Party Name:LEIF E. THOMAS, Appellant, v. STATE OF ALASKA, Appellee.
Attorney:Michael Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Terisia K. Chleborad, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, A...
Judge Panel:Before: Allard, Chief Judge, Harbison, Judge, and Mannheimer, Senior Judge.
Case Date:April 08, 2020
Court:Court of Appeals of Alaska
 
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LEIF E. THOMAS, Appellant,

v.

STATE OF ALASKA, Appellee.

No. A-12715

Court of Appeals of Alaska

April 8, 2020

UNPUBLISHED See Alaska Appellate Rule 214(d)

Appeal from the Superior Court, Third Judicial District, Palmer, Eric Smith, Judge. Trial Court No. 3PA-09-01118 CR

Michael Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.

Terisia K. Chleborad, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.

Before: Allard, Chief Judge, Harbison, Judge, and Mannheimer, Senior Judge. [*]

MEMORANDUM OPINION

HARBISON Judge

In April 2009, Leif E. Thomas stole various items of property, including a firearm, electronics, and jewelry, from his grandparents' home in Palmer. He then fled to Texas, where he called his grandparents multiple times. In these phone calls, Thomas admitted stealing their property and taking it with him to Texas. He told them that he would return the items to Alaska if they paid him for the items. The Palmer Police Department obtained a Glass warrant1 to record one of these phone conversations, and Thomas was subsequently indicted on two charges of second-degree theft - theft of a firearm and theft of property with a value of $500 or more.[2] Although Thomas was indicted in May 2009, he was not arrested until December 2015, when he returned to Alaska from Texas. By the time of his trial in May 2016, the police could not locate the Glass recording, but they did have detailed notes of the conversation that were taken by an officer who listened to the recording and attempted to transcribe it.

At trial, Thomas asked the court to give a Thorne instruction requiring the jury to presume that the Glass recording would have been favorable to him.3 The court held an evidentiary hearing and ultimately decided to give a permissive-inference Thorne instruction to the jury-that the jury "may" but was "not required" to conclude that the missing audio would have been favorable to Thomas. Thomas was convicted of both counts of second-degree theft.

On appeal, Thomas first argues that the trial court erred in refusing to require the jury to presume that the missing recording would have been favorable to him. We disagree. Under Thorne, when determining what, if any, sanction to impose for the State's failure to preserve evidence, a trial court must weigh four factors: (1) "the degree of culpability on the part of the state"; (2) "the importance of the evidence lost"; (3) "the prejudice suffered by the accused"; and (4) "the evidence of guilt adduced at the trial or hearing."4 We evaluate the trial court's balancing of these factors and its sanction decision for abuse of discretion.5

We note that Thomas does not challenge the trial court's finding that the State did not act in bad faith and was "at worst" negligent with respect to the tape's disappearance. Rather, Thomas primarily contests the trial court's prejudice analysis. In particular, Thomas...

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