Memorandum decisions of this court do not create legal precedent.
COATS, Chief Judge.
On June 8, 2007, Edward Honegger received a call from his home security provider, notifying him that an alarm had gone off at his home in Big Lake. The security company also notified the state troopers. Honegger drove to his Big Lake residence, arriving at roughly the same time as Alaska State Trooper Shayne Calt.
Honegger discovered that a rock had been thrown through the glass front door of the home, but he determined that nothing was missing from inside the house. Honegger reset the alarm system and left in search of materials to repair his door.
Approximately forty-five minutes later, Honegger (who was between a quarter- and half-mile away getting repair materials) heard his alarm go off again. He called the troopers and waited outside the gate of his residence for the troopers to arrive. While he was waiting, he heard a gunshot that seemed to come from inside his house.
This time, four troopers responded to the alarm, including Trooper Calt. Trooper Jesse Darby was the first to arrive. Darby saw the silhouettes of two people who emerged from the area toward the front of Honegger's house and walked into the woods. Darby also heard what sounded like a lever-action rifle being cocked.
Trooper Calt went into the woods to look for the two people that Darby had seen. Calt found two men — David Dreves and Christopher Sisneros — sitting with a blanket draped over them and with a rifle lying across their laps. Besides the rifle, the troopers found blankets, a wine bottle, a broken wine glass, a wine opener, beer, and a can of fruit in Dreves's and Sisneros's possession. Trooper Darby took photographs of these items. Honegger identified all of these items as having been taken from his residence. Honegger also discovered that his alarm system had been damaged.
After Calt informed Dreves of his Miranda rights, Dreves waived his rights and consented to an interview.
During this interview, Dreves told Calt that he was homeless, and that he was cold and looking for a place to sleep. Dreves admitted that he and Sisneros had gone into Honegger's house, looking for a place to sleep for the night, but Dreves declared (at least initially) that he entered the house with "no ill intentions" and that he "didn't touch anything in the house." When Calt asked Dreves who threw the rock through the glass door, Dreves told Calt that the door was already broken and was standing open when he and Sisneros arrived.
According to Dreves, he and Sisneros were making themselves comfortable inside the house — but when the alarm went off, they left the house and went into the woods, taking a couple of blankets with them to protect them from the mosquitos.
When Calt asked Dreves about the rifle — specifically, whether Dreves or Sisneros was the one who took the rifle from its mounting on the wall of the house — Dreves repeatedly replied that he couldn't tell the officer this.
A few moments later, Calt told Dreves that he was going to take the wine and food from Dreves's backpack and put these items back inside Honegger's house. Before doing so, Calt asked Dreves, "What in [this backpack] is yours?" Dreves replied, "[A]t this point, [that] is your call." Calt asked again, "[W]hat all is in the backpack that's yours, ... so I can separate [your belongings] out?" Dreves replied, "Some clothes." Calt then asked Dreves one more time about the foodstuffs in his backpack:
Based on this incident, the State charged Dreves with first-degree burglary, third-degree criminal mischief (for the damage to the door and to a chandelier inside the house), second-degree theft (for stealing the rifle), and third-degree theft (for stealing wine). Following a jury trial in the superior court, Dreves was convicted of all these charges.
Dreves asked the superior court to dismiss the indictment, arguing that Trooper Calt gave false testimony concerning the statements that Dreves made when Calt interviewed him at the scene of the crime. Specifically, Dreves argued that Calt misled the grand jury when he testified that Dreves admitted breaking into Honegger's house and stealing the property that was found in the woods with Dreves and Sisneros.
In his brief, Dreves relies heavily on the early portion of his interview with Calt. As we have explained, Dreves initially asserted that he entered the house looking for a place to sleep, with no intent to steal, and that he "didn't touch anything in the house."
But as we have also explained, Dreves's statements during the latter portion of the interview were substantially different. The turning point appears to have come when Calt asked Dreves about the rifle that was found in the woods with him. When Calt asked Dreves to tell him who removed that rifle from the wall of the house, Dreves answered, "I really couldn't tell you." Then, when Calt asked Dreves, "What in [this backpack] is yours?", Dreves told the trooper, "[A]t this point, [that] is your call."
Dreves expressly admitted that he took some artificial bananas from inside the house, but he remained non-committal about the ownership of the remaining items in his backpack. When Calt continued to press this issue, Dreves finally told Calt that he did not want the trooper examining the contents of the backpack. But then Dreves added, "Maybe in the morning, when we see a judge, [the homeowner will] get all his stuff back."
Based on this record, we agree with Dreves that, to the extent Calt testified that Dreves directly confessed to stealing items from inside the house, Calt's testimony was inaccurate (with the exception of the blankets and the artificial bananas, which Dreves admitted taking). However, despite this inaccuracy, Calt's testimony was not materially misleading. Dreves's statements during the second portion of the interview can reasonably be characterized as implicit admissions that he took items of food and drink (in addition to the artificial bananas) from inside the house.
Dreves also argues that Calt testified at the grand jury about several matters that he did not personally observe — matters that must have been based on the trooper's inferences or conclusions, rather than on his personal knowledge. And Dreves argues that the prosecutor should have apprised the grand jury of the variations in Calt's description of where the rifle was found. (Dreves asserts that, at various times, Calt described the rifle as being held by Dreves, as being held by both Dreves and Sisneros, and as lying on the ground next to Dreves.)
We have examined the grand jury record in light of the test outlined in Stern v. State,
Dreves asserts that, because the troopers returned the stolen property to the homeowner (after photographing it), Dreves was precluded from performing forensic testing to establish the possibility that only his co-defendant, Sisneros, handled the stolen property. He argues that, because of the way this evidence was handled, the charges against him should have been dismissed, or (at least) the jury should have been instructed to presume that the results of any forensic testing would have been favorable to Dreves.
When the superior court held an evidentiary hearing on this issue, Trooper Calt testified that one of the other troopers returned the rifle, ammunition, blankets, food, wine, bottle opener, and other small items to Honegger. He testified that it was common to return stolen property to its owner when there was no reason to retain it. He testified that the property had been photographed before it was returned.
Calt stated that he had not seen any reason to retain the property and to inconvenience the property owner by retaining his property until the case was settled. He pointed out the rifle was being held by Dreves, that the other items were found where he contacted Dreves and Sisneros, and that there wasn't anyone else around.
Judge Kristiansen denied Dreves's motion. She indicated that it was uncontroverted that Trooper Calt saw Dreves holding the rifle or having the rifle in his possession. She stated that there was no indication that fingerprint evidence would likely have been exculpatory, and the State therefore did not violate its duty to preserve the evidence and there was no reason for finding that the State had acted in bad faith in returning the rifle.
The State has a duty to preserve any evidence which is discoverable by the defendant.
Whether evidence was destroyed in good or bad faith is relevant to the inquiry of whether sanctions are appropriate, as is the degree of prejudice suffered by the defendant.
We conclude that Judge Kristiansen did not abuse her discretion in determining that Dreves did not establish a basis for imposing sanctions upon the State for failure to preserve evidence. Trooper Calt testified that he saw Dreves in possession of the rifle. Furthermore, even if Sisneros had been in possession of the rifle, the State's theory was that Dreves and Sisneros had acted as accomplices. Judge Kristiansen did not abuse her discretion in concluding that Dreves did not establish that the troopers acted in bad faith in returning the rifle and other property and that there was no reason to believe forensic testing of the property would have produced exculpatory evidence.
Before trial, Dreves filed a motion requesting disclosure of "any and all memorandums, orders, policies, procedural outlines and/or manuals ... regarding the handling of evidence," and asking the superior court to conduct an in camera review of police personnel files. Dreves argued that this information was relevant to his claim that the State had breached its duty to preserve evidence.
Judge Kristiansen denied Dreves's request for the procedural outlines and manuals, ruling that Dreves had not shown how discovery of that material was relevant to his defense. She did not rule on his motion to conduct an in camera review of the police personnel files.
Dreves argues that Judge Kristiansen's failure to order discovery of this material was a violation of Alaska Criminal Rule 16 and the Alaska Constitution. The issue is governed by Criminal Rule 16(b)(7), which provides: "Upon a reasonable request showing materiality to the preparation of the defense, the court in its discretion may require disclosure to defense counsel of relevant material ... ."
From Dreves's motion, Judge Kristiansen concluded that Dreves was attempting to show that the troopers violated their own policy by returning to Honegger the rifle and other allegedly stolen property which they found with Dreves and Sisneros. She concluded that Dreves had not shown how information relating to these policies would be relevant to his defense. We have previously upheld Judge Kristiansen's findings that there was no merit to Dreves's contention that he was prejudiced because the troopers returned the allegedly stolen property to Honegger. It follows that Judge Kristiansen did not abuse her discretion in concluding that Dreves did not show that the trooper manuals would be sufficiently relevant to compel discovery.
Although Dreves did make a cursory motion to have Judge Kristiansen review the police personnel files, he never obtained a ruling on this issue. Consequently, he has not preserved this issue for appeal.
Dreves initially asked to represent himself. Judge Kristiansen granted the request, finding that Dreves knowingly, voluntarily, and intelligently waived his right to counsel. But as the trial approached, Dreves notified the court that he was having conflicts with the jail regarding his access to legal material and other documents. Dreves requested counsel; Judge Kristiansen granted the request.
On October 12th, at trial call, Judge Kristiansen stated that she had a very busy calendar. Therefore, she scheduled jury selection for the 15th, with the 16th, the 20th, the 21st, and the 23rd available for the trial.
On October 14, an assistant public defender filed a motion to continue the trial, notifying the court that the attorney who was defending Dreves, John Richard, was ill. The next day, October 15, there was discussion about when Richard might recover or whether another attorney should take over the case. Among other things, there was a discussion about having another attorney select a jury for Dreves's trial and then having Richard conduct the trial starting the next week.
The court expressed frustration with the uncertainty surrounding the Public Defender Agency's representation of Dreves. And Dreves, understandably, also expressed frustration. He stated that he wanted to "have an effective lawyer [to] take me to trial and win." When Judge Kristiansen asked if Dreves would prefer to wait until November to give Richard time to recover, Dreves replied that he didn't care which lawyer he had, he just wanted someone to take his case to trial. He did not want to wait until November. The court stated that jury selection would start on October 20.
John Richard appeared on October 20 and told the court that he was too ill to proceed. He asked for a continuance to the next trial call, which was November 9. Judge Kristiansen asked Richard if Dreves agreed to the continuance. Richard replied, "I think he was thinking about maybe doing the trial himself again." Dreves asked if he could "select a jury this morning?" Judge Kristiansen replied, "Well, I have appointed you counsel. And ... that was because you asked for counsel. And I'm not really inclined to keep vacillating between having counsel and not having counsel."
Dreves's trial began on December 15, 2009. He was represented by Assistant Public Defenders John Richard and Jeffrey Bradley.
Dreves argues that Judge Kristiansen erred by refusing to allow him to represent himself so that he could proceed immediately to trial. A criminal defendant has a constitutional right to represent himself if he voluntarily and intelligently elects to do so.
We conclude that the record does not establish that Dreves made a clear and unequivocal request to represent himself. Dreves originally was representing himself, but concluded that he was unable to have sufficient access to legal materials to adequately present a defense. He therefore requested and was appointed counsel. During the admittedly frustrating time when his attorney was too ill to proceed, Dreves indicated that he would prefer "an effective lawyer [to] take me to trial and win" over an ineffective lawyer. So the record indicates that Dreves continued to want to be represented by an attorney. But when his trial was being continued on October 20, Dreves was clearly frustrated and asked if he could "select a jury this morning?" Judge Kristiansen could interpret this statement as merely being an expression of frustration, or possibly a request by Dreves to select his jury and then turn the case over to counsel. Under these circumstances, we conclude that Judge Kristiansen did not abuse her discretion in concluding that Dreves did not make a clear and unequivocal request for counsel. She therefore had no duty to further pursue this issue to determine whether Dreves was insisting on his right to self-representation and was voluntarily and intelligently waiving his right to an attorney.
Dreves argues that there was insufficient evidence to support his convictions:
Regarding his conviction for first-degree burglary, Dreves argues that there was insufficient evidence that he entered the cabin with intent to commit a crime. "A person commits the crime of burglary in the first degree if the person [enters or remains unlawfully in a building with intent to commit a crime in the building] and the building is a dwelling."
This evidence would collectively allow the jury to conclude that Dreves had initially entered the house with intent to steal. Or the jury could have believed that Dreves initially didn't intend to steal, but that on the second trip back into the house, he entered with intent to steal or to damage the alarm system. This evidence was sufficient for the jury to conclude that Dreves committed the crime of burglary in the first degree.
Dreves next argues that there was insufficient evidence to convict him of criminal mischief in the third degree. Alaska Statute 11.46.482(a)(1) provides:
Dreves argues that there was no evidence that he broke the door because of the time that passed between when the door was broken and when he was found. He also argues that Sisneros could have broken the door and that there was no evidence that Dreves was with Sisneros at the time the door was broken.
The jury could reasonably conclude that either Sisneros or Dreves broke the door. They were found nearby, and there was no one else found in the area. Also, Dreves admitted that they were planning to stay in the house. The jury could have reasonably concluded that Sisneros or Dreves broke the door to get into the house and that no matter which of them did this, they were acting together. Honegger testified that the door cost about $750 to repair. Thus, there was sufficient evidence that Dreves was liable for criminal mischief based only on the damage to the door.
In addition, there was evidence that the chandelier was damaged in the break-in. The State introduced a photograph showing the damage. The evidence at trial suggested that someone fired a bullet that damaged the chandelier. Honegger estimated that the chandelier cost $1450, but he had not had it repaired by the time of trial. Although the amount of damage was uncertain, the jury could conclude that there would be some reasonable cost to repair the chandelier. We conclude that the State presented sufficient evidence for the jury to convict Dreves of criminal mischief in the third degree.
Turning to the next charge, Dreves was convicted of second-degree theft based on evidence that he stole Honegger's rifle. Under AS 11.46.100(1): "A person commits theft if with intent to deprive another of property or to appropriate property of another to oneself or a third person, the person obtains the property of another." If the property is a firearm, then it is theft in the second degree.
Troopers Calt and Darby both testified that Dreves was in possession of the rifle when they found him hiding in the woods. Honegger identified the rifle as his and that it had been removed from his house. This testimony was sufficient to support the jury's verdict finding Dreves guilty of theft in the second degree.
Finally, Dreves argues that the evidence was insufficient for the jury to convict him of theft in the third degree. Alaska Statute 11.46.140(a)(1) criminalizes theft if the value of the stolen property is $50 or more. Trooper Darby testified that he took photographs of items that the troopers found near Dreves and Sisneros, including some wine bottles. Honegger testified that he thought three or four bottles of wine were taken from his house and that the wine costs about $13.95 a bottle. Reviewing the evidence in the light most favorable to the jury's verdict, the jury could have found that Dreves and Sisneros took wine worth $55.80. Therefore, there was sufficient evidence to support the guilty verdict for theft in the third degree.
At the conclusion of the trial, Judge Kristiansen read instructions to the jury. A major portion of these instructions informed the jury how to evaluate the testimony of a witness. Judge Kristiansen's oral instructions have not been challenged. In particular, Judge Kristiansen instructed the jurors on instruction 31, "If you believe that a witness testified falsely as to part of his or her testimony, you may choose to distrust other parts also but you're not required to do so." But, there was an apparent typographical error in the written instructions. The first sentence of instruction 31, as written, states: "If you believe that a witness testified falsely as to part of his or her testimony, you may choose to distrust other parts also, but you are required to do so."
In reviewing a jury instruction, "plain error will be found only when the purported flaw in the jury instructions created a high likelihood that the jury followed an erroneous theory, resulting in a miscarriage of justice."
The first sentence of the written instruction 31 was clearly wrong. It instructed the jurors that they were required to disbelieve the testimony of a witness if they found any part of that witness's testimony to be false. But in context, we do not find plain error. Judge Kristiansen correctly instructed the jury about how to evaluate a witness's testimony in her verbal instructions. In both the written and oral instructions, the preceding instruction, instruction number 30, informed the jurors how to evaluate the testimony of a witness. It informed the jurors that they were the sole judges of the credibility of any witness and also the sole judges of the weight that the testimony of a witness deserved. They were informed that they could believe "all, part, or none of the testimony of any witness." It informed them that they should "act reasonably in deciding whether or not [they believed] a witness and how much weight to give to the witness testimony." Instruction 31 itself went on to discuss the jury's duty in evaluating witnesses. In particular, the instruction told the jury that it "may believe all, part, or none of the testimony of any witness." It went on to admonish the jury that it should "act reasonably in deciding whether or not you believe a witness and how much weight to give to the witness' testimony."
In context, it seems clear that the typographical error in instruction 31 would not have negatively influenced the jury's ability to properly evaluate the testimony of any of the witnesses. We accordingly do not find plain error.
The judgment of the superior court is AFFIRMED.
