Notice: This opinion is subject to formal
correction before publication in the Pacific
Reporter. Readers are requested to bring
typographical or other formal errors to the
attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
THE COURT OF APPEALS OF THE STATE OF ALASKA
MICHAEL J. D'ANTORIO, )
) Court of Appeals No. A-3824
Appellant, ) Trial Court No. 3AN-S88-8247CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. )
) [No. 1236 - July 24, 1992]
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Joan M. Katz, Judge.
Appearances: Christine S. Schleuss,
Schleuss & McComas, Anchorage, for Appellant.
Cynthia L. Herren, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Charles E. Cole,
Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats, Judge,
and Andrews, Superior Court Judge.*
[Mannheimer, Judge, not participating.]
COATS, Judge.
A jury convicted Michael J. D'Antorio of engaging in a
scheme to defraud, a class B felony. AS 11.46.600. Superior
Court Judge Joan M. Katz sentenced D'Antorio to ten years of
imprisonment, with one year suspended. She placed D'Antorio on
probation for a period of five years after his release from
confinement. D'Antorio appeals his conviction, raising several
issues. We remand.
On December 9, 1986, Alaska State Trooper (AST)
Sergeant Edward Stauber observed D'Antorio in the Alaska Airlines
Board Room at the Anchorage International Airport. Sergeant
Stauber knew that D'Antorio was on parole, that he had previously
been convicted of fraud, and that, as part of his probation, he
was not allowed to possess credit cards. Sergeant Stauber
learned from an employee of Alaska Airlines that D'Antorio had
used a credit card to pay for membership in the Board Room. As a
result of obtaining this information, Sergeant Stauber began an
investigation. Sergeant Stauber discovered from several credit
card companies that D'Antorio had active credit card accounts.
Sergeant Stauber learned from D'Antorio's probation
officer that D'Antorio had reported that he was residing at 5211
Mockingbird Lane. On March 23, 1987, Sergeant Stauber obtained a
search warrant to search D'Antorio's residence. During the
search, the police located and seized blank credit card
applications, copies of completed credit card applications,
newspaper articles, obituaries, credit cards, and notes detailing
personal information about several people. The police found
credit card applications and records in the names of George
Longenbaugh, Glynn Lockwood, Ron Heisman, David Blanchett, and
Craig Fowler.
Upon further investigation, the troopers discovered
that the five individuals listed above were deceased. Sergeant
Stauber used return addresses found on several documents to
locate private mail services in Anchorage, Alaska; San Francisco,
California; Denver, Colorado; and Washington, D.C. The troopers
contacted the private mail services and inquired whether
D'Antorio had open accounts in his own name or in the name of one
of the five deceased individuals. The employees of the various
mail services gave the troopers information and documents
indicating who had obtained the mail boxes and the instructions
concerning where the mail service was to send mail that arrived
in these boxes. The troopers obtained a warrant for D'Antorio's
arrest based on a violation of parole conditions for his original
conviction of engaging in a scheme to defraud.
On April 30, 1987, at approximately 3:00 a.m., Officer
Dale Stern, a police officer with the Huber Heights, Ohio, Police
Department, stopped D'Antorio for a broken headlight. Officer
Stern discovered that there was an outstanding Alaska warrant for
D'Antorio. Officer Stern placed D'Antorio under arrest because
of the Alaska warrant. He conducted a brief search of
D'Antorio's person and of the car. The car was then impounded
and taken to an impound lot later that morning.
The next day, Huber Heights Detective Susan Finch and
United States Secret Service Special Agent Tim Flick drove to the
impound yard to search D'Antorio's car. Detective Finch
testified that she conducted an inventory search according to the
normal procedures for her department. She testified that the
purpose of the search was to identify D'Antorio's property for
safekeeping. The automobile was stuffed with luggage and
merchandise, leaving only the driver's seat empty. The officers
searched the car; opened and searched briefcases, bags, and other
containers, many of which contained various documents; and made a
general inventory of the contents which they removed and placed
in custody.
Sergeant Stauber then traveled to Ohio. Sergeant
Stauber testified that he went to Huber Heights to bring back
D'Antorio and the items taken into custody by Ohio authorities.
Upon his arrival in Ohio, Sergeant Stauber read, categorized,
labeled, and indexed each document and brought the evidence back
to Alaska.
D'Antorio filed motions to suppress evidence that the
troopers obtained from the private mail services and from the
search of D'Antorio's car. Judge Katz denied these motions.
D'Antorio was ultimately convicted by a jury of engaging in a
scheme to defraud.
D'Antorio first contends that Judge Katz erred in
refusing to suppress the evidence that the police seized from
his car in Ohio. As an initial matter, the state contends that
D'Antorio has no standing to contest the warrantless search by
the Ohio police of the car in which he was stopped. The state's
position is that the car was owned by Hertz, a car rental
company. The state contends that the car was overdue, that Hertz
had reported the car stolen, and that Hertz gave the Ohio police
permission to search the car. However, the state concedes that
it did not develop this argument fully in the trial court. The
defense has consistently contested the facts concerning
D'Antorio's lack of a possessory interest in the car, and Judge
Katz ruled that the state would have to produce sworn testimony
on the disputed facts. The state never presented any testimony
to develop its standing argument. Under these circumstances, we
conclude that the state cannot raise the argument on appeal that
D'Antorio had no standing to contest the warrantless search of
the car. We have consistently held that the state cannot argue
that a defendant does not have standing to raise a suppression
issue when the state has not contested this issue in the court
below. Kvasnikoff v. State, 804 P.2d 1302, 1306 n.1 (Alaska App.
1991); Murdock v. State, 664 P.2d 589, 595 (Alaska App. 1983);
Unger v. State, 640 P.2d 151, 156-57 (Alaska App. 1982). Since
the state did not develop the facts in the trial court that were
necessary for Judge Katz to rule on this issue, we have no
factual basis to resolve this issue. We conclude that the state
cannot raise this issue on appeal.
The next issue we must address is whether we should
apply the law of Alaska or the law of Ohio to the searches that
the Ohio police conducted of the contents of D'Antorio's car. In
Pooley v. State, 705 P.2d 1293, 1302-03 (Alaska App. 1985), we
adopted the analysis of the California Supreme Court as stated in
People v. Blair, 602 P.2d 738, 747-48 (Cal. 1979). In Blair,
federal officers who were assigned to a Pennsylvania field office
conducted a federal investigation in Pennsylvania of a
Pennsylvania resident who was prosecuted in California on the
basis of evidence that was obtained in the Pennsylvania search;
the California police did not instigate or participate in the
Pennsylvania search. Id. at 742-43. In Pooley, we summarized
the Blair decision as follows:
[T]he California Supreme Court upheld
admission of the fruits of a Pennsylvania
seizure which was valid under federal and
Pennsylvania law, even though it would have
been invalid if it had occurred in
California. The court reasoned that the
exclusionary rule has a twofold purpose: to
deter illegal police conduct and to relieve
the courts from being compelled to
participate in illegal conduct. Neither goal
would be served by exclusion of evidence in
that case, according to the court, since
Pennsylvania authorities would not (and
indeed, should not) be deterred from engaging
in conduct which is legal in their state, and
admission of the evidence in a California
court would not mean placing the judicial
imprimatur on lawlessness.
705 P.2d at 1303 (citation omitted). In Pooley, we applied
federal and California law to a search of Pooley's luggage that
California law enforcement officers conducted in California when
the record did not contain any evidence that the police "actions
were part of any ongoing or concerted effort by Alaska and
California to identify and arrest persons bringing drugs to
Alaska." Id. at 1302-03.
Applying the Pooley analysis to the instant case, we
conclude that federal law and the law of Ohio apply to the search
incident to arrest and the original inventory search that
Detective Finch conducted in Ohio since the police officers who
conducted these searches were Ohio police officers who were
simply following Ohio law.
Officer Stern, who originally arrested D'Antorio,
conducted the search incident to arrest. D'Antorio's basic
argument in attacking this search is based on the premise that we
should apply Alaska law to this search. D'Antorio argues that
under Hinkel v. Anchorage, 618 P.2d 1069, 1072 (Alaska 1980)
cert. denied, 450 U.S. 1032 (1981), Officer Stern's search of his
center console and the seizure of his wallet was illegal. See
Ricks v. State, 771 P.2d 1364, 1366 (Alaska App. 1989), vacated
but aff'd in part, 816 P.2d 125 (Alaska 1991). However, this
search was clearly valid under federal and Ohio law. See New
York v. Belton, 453 U.S. 454 (1981); State v. Crickon, 540 N.E.2d
287 (Ohio App.), appeal dismissed, 534 N.E.2d 95 (Ohio 1988). We
conclude that Judge Katz did not err in finding that Officer
Stern's limited search was a valid search incident to arrest
under federal and Ohio law -- the governing law of the
jurisdiction with the most significant relationship to and
interest in the search.
Detective Finch testified that she conducted the later
inventory search of the property that was in D'Antorio's car
following normal procedure in Ohio. She testified that the
purpose of the inventory search was to identify and hold
D'Antorio's property for safekeeping. Judge Katz found that
Detective Finch conducted the search according to standard police
practices of her department and that the inventory search that
she conducted, which included the opening of closed containers,
was valid under federal and Ohio law. D'Antorio argues that we
should apply Alaska law to Detective Finch's search.
Our supreme court has held that the Alaska Constitution
prohibits police from entering and searching closed containers
without a warrant while conducting inventory searches. State v.
Daniel, 589 P.2d 408, 416 (Alaska 1979). However, Ohio courts,
relying on federal law, allow the police to search containers
which they find in impounded automobiles as inventory searches.
State v. Bronaugh, 475 N.E.2d 171, 174-76 (Ohio App. 1984)
(citing Illinois v. Lafayette, 462 U.S. 640 (1983); United States
v. Ross, 456 U.S. 798 (1982)). We conclude that Judge Katz
correctly applied federal and Ohio law to the searches. See
2 W. LaFave, Search and Seizure 5.3(a) (2d ed. 1987)
(describing the law applicable to inventory searches that occur
after a person has been arrested). We find Judge Katz did not
err in denying this portion of D'Antorio's motion to suppress.
We conclude, however, that we must evaluate the
investigation which AST Sergeant Stauber conducted of D'Antorio's
property in Ohio under Alaska law. This was an investigation by
an Alaska State Trooper who was investigating charges which arose
in Alaska; Alaska has the most significant relationship to and
governmental interest in Sergeant Stauber's activities in Ohio.
Therefore, under our reasoning in Pooley, Alaska law should
apply. 705 P.2d at 1303.
The question that Sergeant Stauber's investigation
raises is whether he could go through D'Antorio's property
without a warrant. This issue is discussed in LaFave, supra,
5.3(b). The leading case in this area is United States v.
Edwards, 415 U.S. 800 (1974). Many courts have interpreted
Edwards to allow the police to subsequently search a defendant's
possessions which are held in police custody "merely on the basis
that they are doing nothing more than could have been done at the
time of arrest or booking." LaFave, supra, 5.3(b), at 494.
The Alaska Supreme Court addressed this issue in
Griffith v. State, 578 P.2d 578 (Alaska 1978). In Griffith, the
victim of an attempted robbery identified his assailant in part
by the fact that the assailant was wearing "an unusual brown
turban-like cap." Id. at 579. Griffith was wearing the brown
cap when the police arrested him, but the police did not seize
the cap as evidence. Jail personnel placed the cap, along with
Griffith's other personal property, into a bag and stored it in a
locker, according to standard jail procedure. During Griffith's
trial, one of the officers who arrested Griffith realized that
Griffith was wearing the hat when he was arrested and that the
hat had evidentiary value. The officer asked a jail supervisor
to look through Griffith's property to see whether the cap was
still there. The jail officer located the cap and the police
officer asked that the jail hold on to the cap. The officer
obtained a court order to obtain the cap, which was introduced
against Griffith at his trial. In deciding Griffith, the supreme
court found it unnecessary to decide the state's contention that
United States v. Edwards "validates all searches of a prisoner's
personal property once that property has been taken from the
prisoner for storage during his detention." Id. at 580 n.3.
Quoting from United States v. Grill, 484 F.2d 990, 991 (5th Cir.
1973), cert. denied, 416 U.S. 989 (1974), the court stated:
The underpinning of these cases is that the
items in question have been exposed to police
view under unobjectionable circumstances, so
that no reasonable expectation of privacy is
breached by an officer's taking a second look
at matter with respect to which expectation
of privacy already has been at least
partially dissipated.
578 P.2d at 580. The supreme court went on to state:
We find this approach to be sound. No
invasion of privacy occurred in the
circumstances of this case. Officer Trudeau
saw the cap at the time of Griffith's arrest.
The later telephone call to the jail
supervisor merely verified the continued
availability of that which had been available
and in plain view to Trudeau at the time of
the arrest. In the circumstances we conclude
that the seizure of the cap was reasonable,
and its introduction into evidence was not
error.
Id.
Although in Griffith the supreme court specifically
reserved the issue of whether United States v. Edwards allowed
the police to search a prisoner's personal property once that
property had been taken during an inventory search, in Reeves v.
State, 599 P.2d 727, 737-38 (Alaska 1979), the court limited the
scope of an inventory search:
In summary, we hold that a pre-
incarceration inventory search is an
exception to the warrant requirement, where
it is conducted to further the governmental
purposes recognized above and is limited to
the extent necessary to respect Alaska's
constitutional guarantee against unreasonable
searches and seizures. The search of an
arrestee's person should be no more intensive
than reasonably necessary to prevent the
entry of weapons, illegal drugs, and other
contraband or potentially dangerous items
into the jail. Any items taken from the
arrestee's possession in this search may not
be further searched or opened except pursuant
to a search warrant or another recognized
exception to the warrant requirement
applicable in the circumstances. Finally,
the inventory conducted shall consist of a
cataloging of the arrestee's property thus
seized and may not, without a specific
request from the arrestee, extend to a search
and inventory of the contents of any object,
closed or sealed container, luggage, brief-
case, or package. We believe that a pre-
incarceration search thus limited both
adequately protects the reasonable interests
of the state and appropriately respects an
arrestee's reasonable expectation of privacy.
Furthermore, in Reeves, the court noted its agreement with the
following statement from Brett v. United States, 412 F.2d 401,
406 (5th Cir. 1969):
We are not prepared to say that an
accused whose effects are held by the police
for safekeeping has, by the single fact alone
of the police custody of the property,
surrendered his expectations of the privacy
of those effects.
Reeves, 599 P.2d at 734 n.18.
Reading Griffith and Reeves together, it appears that
the supreme court has rejected the proposition that a prisoner
has no reasonable expectation of privacy in his personal property
once that property has been taken into police custody. However,
when the police have already seen and identified property of
evidentiary value, the police are entitled to take a "second
glance" at the property. See Griffith, 578 P.2d at 580 n.2.
In her decision on the suppression motion, Judge Katz
found that Detective Finch legitimately seized all of D'Antorio's
property and subjected it to an inventory search. We have
concluded, applying Ohio and federal law, that Judge Katz did not
err in this determination. We have further found, however, that
Sergeant Stauber's warrantless inspection of the seized property
must be governed by Alaska law. Under Griffith and Reeves, the
pertinent issue is whether the intensity of Stauber's warrantless
search of the seized articles materially exceeded the scope of
the inventory that Finch had previously conducted -- in other
words, whether Sergeant Stauber's actions violated a reasonable
expectation of privacy that had not already been "dissipated" by
Finch's earlier inspection.
This issue can properly be resolved only through a
determination of the precise scope of Detective Finch's inventory
and a comparison of that search with the subsequent search
conducted by Stauber. Judge Katz, however, did not make any
findings concerning the relative intensity of the searches
conducted by Finch and Stauber. It appears that Judge Katz
assumed, as a matter of law, that D'Antorio could have no
continuing expectation of privacy in any of his property once
Finch had inventoried it. Under Griffith and Reeves, such an
assumption is incorrect.
From the testimony below, it appears that Stauber's
search of D'Antonio's property may have been more intensive than
Finch's prior inventory search. However, this is a factual
issue, which requires findings by the trial court in the first
instance. We must therefore remand this case for additional
findings.
In order to provide guidance on remand, we make the
following observations. The burden of proof on remand should be
placed on the state, since the state has the burden of justifying
any warrantless search. To the extent the state can demonstrate
that Sergeant Stauber inspected articles that were plainly
exposed to and observed by Finch, those articles would be similar
to Griffith's turban-like cap and would clearly not be subject to
suppression. On the other hand, to the extent it appears that
Stauber inspected articles in closed containers that Finch had
not previously opened, his conduct would clearly amount to a new
and more intrusive search. Between these two extremes, it is
difficult to say where the line should be drawn. See, e.g.,
Anderson v. State, 555 P.2d 251 (Alaska 1976). We leave the
matter to the trial court's sound discretion.
We therefore remand this issue to the trial court to
reevaluate Sergeant Stauber's search in light of this opinion.
The trial court may, but is not required to, allow the parties to
introduce further evidence and to further brief this issue. In
the event the trial court concludes that it erroneously allowed
the state to introduce evidence at D'Antorio's trial that the
court determines should have been suppressed, the court should
decide whether introduction of this evidence was harmless error.
D'Antorio next contends that Judge Katz erred in
failing to suppress information that the police discovered from
private mail services that D'Antorio utilized. D'Antorio used
private mail boxes in Anchorage, Denver, San Francisco, and
Washington, D.C. The troopers contacted these mail services and,
according to Judge Katz's decision, "obtained business records
from them including billings, notes reflecting instructions from
defendant, and applications." Apparently, two of the mail
services had clauses in their service contracts which provided
that: "All information provided by customer is confidential and
will not be disclosed except when legally mandated." In her
decision, Judge Katz found that, "A person has a reasonable
expectation of privacy in his mail, whether or not there is an
intermediary interposed between the postal service and the
ultimate recipient." However, she concluded that the troopers
had no information concerning the confidentiality portion of
D'Antorio's agreement with the mail services and had no reason to
believe that the records would be the subject of confidentiality
agreements. She concluded that the agents for the private mail
services were entitled to cooperate with the police and to reveal
their business records once they had reason to believe that the
boxes were being used for illegal purposes. From the discussion
of the court and the parties it appears that the information that
Judge Katz did not suppress was basically the name of the person
who opened the box, the time the box was opened, and the
directions that were given to the mail services for forwarding
the mail.1
In State v. Chryst, 793 P.2d 538, 542 (Alaska App.
1990), we concluded that the police could contact a local utility
company and obtain Chryst's address from all the accounts which
were listed under Chryst's name. Id. at 539. We rejected
Chryst's contention that the police action in obtaining this
information violated his rights under article 1, section 14 of
the Alaska Constitution, which is similar to the fourth amendment
of the United States Constitution, and article 1, section 22 of
the Alaska Constitution, which is the privacy provision of the
Alaska Constitution and which does not have an analogous federal
provision. The utility had a policy that declared that it would
only provide the names, addresses, or telephone numbers of
members with the approval of the member or in response to a
subpoena or court order. Id. at 539. We stated:
We agree with Professor LaFave and what
appears to be the majority rule that a
person's name and address, by themselves, do
not constitute information about which a
person can have a reasonable expectation of
privacy which society is willing to
recognize.
Id. at 542.
We conclude that the instant case is governed by
Chryst. The information that the mail service employees provided
was essentially who opened the account, when the account was
opened, and what directions the mail service had received for
forwarding the mail. We conclude that this information did not
constitute information about which D'Antorio could have a
reasonable expectation of privacy that society is willing to
recognize. This was information concerning D'Antorio's contact
with the mail service, and D'Antorio assumed the risk that the
mail service might choose to reveal the nature of its business
dealings with D'Antorio. This opinion should be read as only
addressing the narrow factual circumstances of the present case.
As in Chryst, the facts of this case do not call for this court
to accept or reject cases that have provided a higher expectation
of privacy in business records under state constitutional
provisions. 793 P.2d at 542-43 (Bryner, C.J., concurring)(citing
People v. Chapman, 679 P.2d 62 (Cal. 1984); State v. Butterworth,
737 P.2d 1297 (Wash. App. 1987)); cf. United States v. Miller,
425 U.S. 435 (1976) (no expectation of privacy in financial or
bank records). Judge Katz's ruling protected D'Antorio's
interest in the privacy of his mail. We accordingly affirm Judge
Katz's decision.
D'Antorio next asserts that Judge Katz erred in
allowing the state to introduce evidence which referred to
individuals other than Longenbaugh, Lockwood, Heisman, Blanchett,
and Fowler, the names D'Antorio was charged with fraudently
obtaining and using credit under. We conclude that Judge Katz
could properly have allowed the state to introduce this evidence
to show that D'Antorio had a continuing plan of collecting
information on individuals other than the individuals listed in
the indictment to complete the picture of the scheme to defraud.
See Braham v. State, 571 P.2d 631, 640 (Alaska 1977) (evidence
"had the permissible effect of completing the picture or setting
the stage of the crime"), cert. denied, 436 U.S. 910 (1978).
D'Antorio argues that Judge Katz erred in allowing
testimony that D'Antorio was in custody in Ohio. At trial,
Detective Finch testified that she recognized D'Antorio as the
person who was in custody in Ohio, and Sergeant Stauber testified
that he went to Ohio to pick up D'Antorio and the evidence. We
conclude that Judge Katz did not abuse her discretion in allowing
this testimony. In context, we fail to see how D'Antorio was
unduly prejudiced. See State v. Gretzler, 612 P.2d 1023, 1050
(Ariz. 1980) ("The fact that Gretzler was arrested by somebody
prior to trial was obvious to the jury. We are unable to
perceive how testimony that Gretzler was held in another state on
Arizona indictments would damage his case before the jury."),
cert. denied, 461 U.S. 971 (1983).
D'Antorio next contends that Judge Katz erred in
refusing to allow him to introduce a statement by his parole
officer that D'Antorio had said that Michael Knight resided at
the Mockingbird Lane address with him. Judge Katz allowed the
state to elicit testimony from Mr. Lonzo Henderson, D'Antorio's
parole officer, that D'Antorio had listed the Mockingbird Lane
address as his official residence.2 D'Antorio claims that Judge
Katz erred in not allowing him to admit the remainder of the
hearsay statement in which he had said that he resided at the
Mockingbird Lane address with Michael Knight. D'Antorio's
defense at trial was that the scheme to defraud was perpetrated
by someone else who had access to the Mockingbird residence. He
wanted to show that Michael Knight, John Finley, and William
Crouse were possible suspects. Two defense witnesses
subsequently testified that Knight, Finley or Crouse also resided
or often visited at the Mockingbird Lane residence. D'Antorio
also introduced evidence that two credit cards in the name of
Michael Knight were found in the Ohio automobile search along
with several credit card receipts bearing Knight's name.
D'Antorio contends that it was critical to his defense to show
that Knight was present both at Mockingbird Lane and in Ohio.
D'Antorio avers that Judge Katz's ruling violated his
constitutional right to confront the witnesses against him and to
due process of law. He also argues that Judge Katz erred in not
allowing the statement under Alaska Evidence Rule 106.3
Although we see the issue as close, we conclude that
Judge Katz did not abuse her discretion in not allowing D'Antorio
to introduce the remainder of D'Antorio's statement that he lived
at the Mockingbird Lane address with Michael Knight. D'Antorio's
statement to the parole officer was an admission that he lived at
that address. His hearsay statement that Michael Knight also
lived there would normally not be admissible. We believe that
Judge Katz could properly determine that the statement was
severable and that it was not necessary to admit the second part
of the statement under Evidence Rule 106, and that the failure to
admit the statement did not violate D'Antorio's constitutional
rights. We find no error.
D'Antorio next argues that Judge Katz erred in refusing
to allow him to introduce past convictions of Finley and Crouse.
After defense witnesses testified to the fact that Finley and
Crouse had been present at the Mockingbird Lane address,
D'Antorio sought to introduce certified copies of convictions
showing that Crouse had been convicted for engaging in a scheme
to defraud and that Finley had been convicted of forgery, passing
bad checks, and attempting to obtain money by false pretenses.
In her ruling, Judge Katz told the parties that she had had
Crouse's presentence report faxed from Fairbanks.4 Judge Katz
concluded that the prior convictions were not similar and were
not close in time. She concluded that they had little probative
value. Judge Katz did not abuse her discretion in not admitting
these prior records. D'Antorio was attempting to show that
because Finley and Crouse had prior convictions, they were likely
to have engaged in the particular criminal activity with which
D'Antorio was charged. Judge Katz could properly determine that
this proposed evidence had little probative value. We find no
error.
D'Antorio next contends that Judge Katz erred in
allowing the state to introduce evidence concerning chargeoffs
that credit card companies had made against D'Antorio's accounts.
At trial, an employee of the Credit Bureau of Alaska testified
that a chargeoff was a record that a credit card company had
written off a debt as uncollectable. Apparently, at grand jury,
an employee of the Credit Bureau of Alaska testified that
D'Antorio had $57,000 in chargeoffs. D'Antorio requested a
protective order against admitting this testimony. Judge Katz
denied the protective order and ruled that the state could admit
this evidence at trial. D'Antorio argues that this was error.
He argues that the evidence was inadmissible as a prior bad act.
See A.R.E. 404, 403. The state contends that the evidence was
admissible to show that at some point it would become impossible
for D'Antorio to get further credit in his own name since he
would have a bad credit record. This would explain D'Antorio's
motive to obtain credit cards in other names so that he could
continue his credit card fraud.
However, at trial, a different employee of the Credit
Bureau of Alaska testified than had testified before the grand
jury. This employee testified only that, as of March 1987,
D'Antorio's account showed $6837 in chargeoffs. It therefore
does not appear that the testimony of which D'Antorio complains
was admitted at trial. Since the testimony admitted at trial
differs so significantly from the testimony of which D'Antorio
complains, we decline to decide this issue.
D'Antorio next contends that Judge Katz erred in
overruling his objections to the state's assertion in argument
that D'Antorio's scheme may have been more successful than Credit
Bureau of Alaska records showed. We have reviewed the
prosecutor's remark in context, and conclude that Judge Katz did
not err in overruling D'Antorio's objection.
REMANDED.
_______________________________
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1. According to Judge Katz's decision, the owner of
an Anchorage mail service initiated contact with law enforcement
officials because she believed that the activity in D'Antorio's
box was suspicious. The owner of the mail service provided the
police with copies of the outside of envelopes which were sent to
the mail box. The state introduced the names on the outside of
the envelopes at trial. However, D'Antorio has not challenged a
ruling by the trial court concerning the admission of the
information on the outside of the envelopes. Furthermore, the
parties' briefs address only the issue of whether D'Antorio had
an expectation of privacy in the name of the person who opened a
box account, the time the box was opened, and the directions that
were given to the mail services for forwarding mail. Therefore,
our decision need only address the narrow issue briefed by the
parties. See Kristich v. State, 550 P.2d 796, 804 (Alaska 1976).
2. The jury was not told that Henderson was a parole
officer or that D'Antorio was a parolee.
3. Evidence Rule 106 provides:
When a writing or recorded statement or
part thereof is introduced by a party, an
adverse party may require him at that time to
introduce any other part or any other writing
or recorded statement which ought in fairness
to be considered contemporaneously with it.
In Stoneking v. State, 800 P.2d 949, 951-52 (Alaska App. 1990)
(citations omitted), this court stated:
The limited purpose of A.R.E. 106 is to allow
a party to admit omitted portions of a
partially admitted statement only when and
only to the extent that the omitted portions
are necessary to provide context to the
admitted portions, or to explain or clarify
them. The rule does not make admissible
statements that would otherwise be
inadmissible; it is meant only to allow
contemporaneous admission of evidence that
would ordinarily not be admissible until
later stages of the trial.
4. D'Antorio argues that Judge Katz erred in
obtaining the presentence report ex parte. However, D'Antorio
never objected to this procedure and we find no prejudice. See
Egelak v. State, 438 P.2d 712, 715 (Alaska 1968). We do not find
reversible error.
