Wilkie v. State, A-746

• Decision Date: 21 March 1986
• Docket Number: No. A-746,A-746
• Citation: 715 P.2d 1199
• Parties: Jeffrey C. WILKIE, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Court of Appeals

Page 1199

715 P.2d 1199

Jeffrey C. WILKIE, Appellant, v. STATE of Alaska, Appellee.

No. A-746.

Court of Appeals of Alaska.

March 21, 1986.

Jeffrey M. Feldman, Gilmore & Feldman, Anchorage, for appellant.

James V. Gould, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Harold M. Brown, Atty. Gen., Juneau, for appellee.

Before BRYNER, C.J., and COATS and SINGLETON, JJ.

OPINION

COATS, Judge.

Jeffrey C. Wilkie was convicted, following a jury trial, of sexual assault in the first degree, AS 11.41.410(a)(1). He appeals to this court raising several issues.

FACTS

On October 1, 1983, S.C. left her residence in Eagle River at approximately 4:00 a.m. She worked the early morning shift at Anchorage International Airport for one of the airlines. Her shift began at 5:00 a.m., and she arrived at the employee parking lot at about 4:50-55 a.m. She opened her car door, then, seeing that someone was coming between her car and the adjacent car, started to close her door to allow him to pass. The man approaching did not pass; rather, he opened the door, told S.C. to move over, and said that he had a gun. S.C. complied, and the man entered the car and had intercourse with S.C. S.C. stated that the incident lasted "not more than ten minutes."

Moments after the assailant departed, Douglas Hansen, another airport employee, heard S.C. screaming for help and screaming that she had just been raped. Hansen spotted a man walking, then running, towards the international terminal of the airport. Both the man Hansen saw and the man described by S.C. were alleged to be wearing a dark-colored vest. Hansen determined that he could not catch the man, so he ran to the domestic terminal and reported the incident to police. The incident was recorded on police records at exactly 4:57 a.m.

The police responded immediately, calling in Officer Robert W. Jones and his dog Kai. Kai was placed next to the driver's side of S.C.'s vehicle to begin tracking. Kai began travelling towards the domestic terminal. Officer Jones stopped Kai and took him back to the driver's side of the car. This time Kai went to the back of the vehicle and signaled an alert. Again Jones started Kai, this time Kai started towards the international terminal. Jones encouraged Kai by shouting "good boy."

Before reaching the international terminal, Kai abruptly turned and circled a red pickup truck. Jones determined that no one was in the truck and returned with Kai to his original track. Kai then went straight to the international terminal, entered, went to the Japan Airlines counter and jumped up on the counter. Seconds later, Jeffrey Wilkie, who was on the phone "popped up" from behind the counter. Other police officers were contacted, and Wilkie was arrested.

Wilkie's general appearance and clothing matched the description that S.C. had given to the police. However, S.C. was unable to identify Wilkie in a lineup, and, in an earlier photo montage of airport employees, picked out the picture of another person as possibly being the person who assaulted her. In addition, Wilkie presented evidence from alibi witnesses that at approximately the time of the sexual assault they saw Wilkie working near the terminal.

At trial, conflicting testimony was presented about physical evidence relating to the rape. An F.B.I. expert witness testified that he found hair identical to S.C.'s hair on clothing the police had seized from Wilkie. However, an expert witness who testified for Wilkie disputed this evidence and stated that the hair was Wilkie's own. An F.B.I. serology expert testified that semen stains, which were found on S.C.'s clothing, could have originated from Wilkie, but the expert admitted that approximately thirty-six percent of the male population of the United States were in the blood group from which the stain could have originated. A defense expert, Gary Harmor, testified that the semen stain could not have originated from Wilkie's subgrouping. After hearing the evidence, the jury convicted Wilkie of sexual assault in the first degree. Wilkie now appeals to this court. We affirm.

GRAND JURY ISSUES

Wilkie argues that the trial court erred in refusing to dismiss the grand jury indictment against him based on several alleged errors.

K.W. Information

At the grand jury proceedings, S.C. testified about her attempts to identify her assailant. S.C. testified that she was shown pictures of people who worked at the airport and that she had seen one picture that "scared her." S.C. stated that she brought the picture to the attention of the police as possibly being the picture of the person who assaulted her, although she was not sure of the identification. The photograph which S.C. identified was not of Wilkie, but of K.W., another person who worked at the airport. Later in the grand jury proceedings, a grand juror asked a police officer who had conducted part of the airport investigation, whether K.W. had been working that day. The prosecutor refused to allow the officer to respond to the grand juror's question on the basis that the response would be hearsay. Wilkie argues that it was error for the prosecutor not to allow the officer to respond and that the failure to produce further evidence concerning K.W.'s whereabouts constituted a failure to produce exculpatory evidence. See Alaska R.Crim.P. 6(q). ¹

The state, pursuant to Criminal Rule 6(q), has an affirmative duty to present exculpatory evidence to the grand jury, so that the grand jury may properly perform its function of protecting the innocent from unjust prosecution. See Frink v. State, 597 P.2d 154, 164-65 (Alaska 1979) (quoting State v. Gieffels, 554 P.2d 460, 464 (Alaska 1976)). However, the duty to present exculpatory evidence imposes only an obligation to present evidence known to the prosecutor which tends to negate guilt. Id.; see also ABA Standards Relating to the Prosecution Function and Defense Function § 3.6(b) (Approved Draft 1971). In the present case, testimony at trial made it highly unlikely that K.W. was anywhere but at home during the time in question. It does not, therefore, appear that the additional evidence that the grand juror requested would have been exculpatory. Furthermore, the prosecutor demonstrated her willingness to answer the grand juror's question by calling additional witnesses, but the grand jury requested deliberations instead, returning a true bill. We find no error.

Lack of Lineup Testimony

The prosecution did not conduct a lineup to see if S.C. could identify Wilkie until after the grand jury proceedings. One of the grand jurors asked why no lineup had been conducted. The prosecutor responded that the reason why no lineup had been conducted was not relevant and told the grand jury to consider only the evidence presented. Wilkie argues that the indictment should have been dismissed because of the prosecutor's response. We disagree.

The evidence presented to the grand jury made it clear that S.C. had not identified Wilkie as the person who assaulted her and that she had picked out the photograph of K.W. as a suspect. Hence, all exculpatory evidence regarding identification was reasonably and fairly presented. See Frink, 597 P.2d at 166. We see no evidence of bad faith in the failure of the prosecution to conduct a lineup prior to the grand jury proceedings. On this record, we do not believe that the indictment should have been dismissed because the prosecutor told the grand jury that the reason why no lineup had been conducted was irrelevant.

Times on Chart

Several airport employees who worked with Wilkie testified regarding where and when Wilkie had been seen at work. Carl Burford testified that he saw Wilkie load a China Airlines jet at 4:40--4:45 a.m. and that Wilkie was present when the China Airlines jet departed. It is undisputed that the China Airlines plane backed out at 4:50 a.m. Since the sexual assault of S.C. was reported at 4:57 a.m., Burford's testimony tended to establish an alibi for Wilkie.

The prosecutor wrote down the times of events concerning the rape on a chart. The prosecutor included the time that Wilkie loaded the jet (4:40-4:45) on the chart but did not write down the time that Wilkie was seen watching the jet depart (4:50). Wilkie argues that the prosecutor thus misled the grand jury and that the trial court was therefore required to dismiss the indictment.

Where an inaccuracy in the evidence presented to the grand jury occurs, the indictment must be dismissed only where the inaccuracy is material. Keith v. State, 612 P.2d 977, 980-981 (Alaska 1980). We find the present case analogous to what transpired in Doisher v. State, 632 P.2d 242, 251 (Alaska App.1981) rev'd on other grounds, 658 P.2d 119 (Alaska 1983). In Doisher, accurate evidence was presented to the grand jury. However, in her summation, the prosecutor misstated the evidence without any apparent bad faith. Id. As in Doisher, the prosecutor here presented the evidence which tended to prove Wilkie's alibi but did not include it on the chart, without any apparent bad faith. We find the prosecutor's apparently inadvertent omission of the time from her chart immaterial and insufficient to mandate reversal.

Wilkie also argues that the indictment should have been dismissed because of cumulative error. We disagree that the alleged errors, considered as a whole, required the trial court to dismiss the indictment.

TRACKING DOG EVIDENCE

Wilkie argues that the trial court erred in admitting evidence that Kai, a German Shepherd police dog, tracked Wilkie from the crime scene to the counter at the international terminal. First, Wilkie argues that dog tracking evidence should never be admitted into evidence. Second, he argues that if dog tracking evidence may be admitted, there was an insufficient foundation to admit the evidence in this case.

The question of whether to admit evidence that a dog tracked a particular suspect is a case of first impression in...