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THE COURT OF APPEALS OF THE STATE OF ALASKA
LARRY MARCH, )
) Court of Appeals No. A-4522
Appellant, ) Trial Court No. 3SW-S91-356CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
) [No. 1314 - October 1, 1993]
Appellee. )
______________________________)
Appeal from the District Court, Third
Judicial District, Seward, George Peck,
Magistrate.
Appearances: Jennifer K. Wells, Assistant
Public Defender, Kenai, and John B. Salemi,
Public Defender, Anchorage. Joseph N.
Levesque, Assistant District Attorney, Kenai,
and Charles E. Cole, Attorney General,
Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
Larry March was convicted by a jury of taking a bull
moose "same day airborne," in violation of 5 AAC 92.085(8).1
March and Jesse Sweatt flew into Paradise Valley on
September 1, 1991. Later that same day, one or both of them shot
and killed a bull moose.2 The offense came to light
approximately three weeks later when two witnesses to the
shooting reported it to Fish and Game officials. The witnesses
had heard the shots and had seen March and Sweatt with the moose
after it was killed, but they had not seen who fired the shots.
Prior to trial, March moved to dismiss the charge on
the ground that the state had violated his right to due process
by failing to send an officer to the site of the alleged offense
to gather evidence. March speculated that evidence at the kill
site, including the remains of the moose and spent shells or
bullets, might have supported his claim that Sweatt was the only
one who shot at the moose.
At the hearing on the motion to dismiss, the
investigating officer on the case, Trooper Robert Lester,
testified that he received the first report of the illegal taking
on September 23, twenty-two days after the moose had been killed.
Lester thereafter made three requests to his supervisor for the
use of a plane to fly into Paradise Valley and investigate the
kill site. The Fish and Game airplanes were apparently tied up
on other jobs. Lester made no more requests for a plane after
snow started to fall in the Paradise Valley area in October. He
never did travel to the kill site. It was Lester's understanding
from speaking to witnesses that all of the salvageable meat, as
well as the rack of antlers, had been taken from the kill site by
Sweatt and March. Because three weeks had passed by the time he
first heard of the offense, and given the effect of scavenging
animals and the difficulty in locating the exact kill site,
Lester said he would not have expected to find any evidence even
if he had been able to fly into Paradise Valley.
March mischaracterizes the state's conduct in this case
as a failure to preserve evidence. The state's duty to preserve
evidence that is discoverable by the defendant "attaches once any
arm of the state has first gathered and taken possession of the
evidence in question." Putnam v. State, 629 P.2d 35, 43 n.16
(Alaska 1980); Abdulbaqui v. State, 728 P.2d 1211, 1217 (Alaska
App. 1986). In this case, the state never had possession or
control of any items that might have been found at the kill site,
so the duty to preserve evidence was never activated.
While officers have a duty to preserve potentially
exculpatory evidence actually gathered during a criminal
investigation, the due process clause has never required officers
to undertake a state-of-the-art investigation of all reported
crimes. Officers investigating a crime need not "track down
every conceivable investigative lead and seize every scintilla of
evidence regardless of its apparent importance or lack of
importance at the time, or run the risk of denying a defendant
due process or his discovery rights." Nicholson v. State, 570
P.2d 1058, 1064 (Alaska 1977). Here, the trial court found it to
be highly improbable that any evidence could have been gathered
at the kill site by the time the offense was reported to the
troopers. This finding is not clearly erroneous. Furthermore,
there is no indication in the record that the failure of Fish and
Game officials to make an airplane available to Trooper Lester
was the result of anything but a good faith determination that
the limited number of Fish and Game aircraft could be better used
elsewhere. See Nicholson, 570 P.2d at 1064. We find no
violation of March's due process rights. The motion to dismiss
was properly denied.
March also argues that the court's failure to declare a
mistrial sua sponte was plain error. Prior to trial, March
obtained a protective order against any mention of a fishing
violation of which he had previously been convicted. Jesse
Sweatt, testifying for the state, violated the protective order
by referring to March's fishing violation. March's objection to
this testimony was sustained. Despite the favorable ruling on
his objection, March now claims error. He argues that the court
should have granted him a remedy he did not request: the
declaration of a mistrial.
In arguing that Sweatt's testimony warranted a mistrial
"whether or not the defense requested it," March overlooks an
important point: the trial court's authority to declare a
mistrial sua sponte is exercised subject to the constraints of
the defendant's right to have his trial completed by a particular
jury. Jeopardy attaches when the jury is sworn. If the court
discharges the jury before a verdict is reached, "the defendant
cannot be retried unless he consented to the discharge or
`manifest necessity' required it." Koehler v. State, 519 P.2d
442, 448 (Alaska 1974); Staael v. State, 697 P.2d 1050, 1053
(Alaska App. 1985).
Here, because March did not request a mistrial,
declaration of a mistrial would have violated his double jeopardy
right absent an independent basis for concluding that there was a
"manifest necessity" for a mistrial. Koehler, 519 P.2d at 448;
Browning v. State, 707 P.2d 266, 269 (Alaska App. 1985). The
record in this case does not disclose the "very extraordinary and
striking circumstances," under which a mistrial may be declared
without the defendant's consent. Lewis v. State, 452 P.2d 892,
896 (Alaska 1969). We find no error in the court's failure to
declare a mistrial sua sponte.
March's final claim of error is that the trial court
erred in refusing to order the state to produce Trooper Lester's
personnel file for in camera review.
While March was awaiting trial, his brother, Louie
March, wrote a letter to the Fish and Wildlife Protection Agency,
complaining that Trooper Lester had given preferential treatment
to Jesse Sweatt in handling this case. Prior to trial, March
requested discovery of the file on the internal investigation
prompted by his brother's letter. Included in the file were
statements by Sweatt, who had been interviewed in connection with
the internal investigation. March also requested discovery of
Lester's personnel file, arguing that the file might contain
evidence that Lester had previously given preferential treatment
to acquaintances or friends of his in other cases.
In an order dated February 27, 1992, the trial court
ordered the state to produce Lester's personnel file and the
internal investigation file for in camera review. The state
moved for reconsideration. Upon reconsideration, the court
rescinded its order for in camera review of Lester's personnel
file.
The court expressed doubt as to the relevance of the
requested materials. The court noted that evidence of citizen
complaints in other cases would not establish Lester's bias
against March and that March would not be able to use specific
acts by Lester to establish Lester's dishonesty or to impeach him
on collateral matters. Balancing March's need for discovery
against the privacy of the personnel file, the court found that
the privacy interests outweighed the need for discovery of
inadmissible material. The court denied March's request for in
camera review of the file, at least until March could make a
showing that the file might contain admissible evidence of
Lester's bias.
The proper procedure to be followed when a party
requests discovery of confidential materials is for the court to
conduct an in camera inspection of those materials and then
determine which, if any, are discoverable. This procedure has
been repeatedly approved by this court and the Alaska Supreme
Court. See, e.g., Jones v. Jennings, 788 P.2d 732, 739 (Alaska
1990); Balentine v. State, 707 P.2d 922, 929 (Alaska App. 1985);
Braaten v. State, 705 P.2d 1311, 1320-21 (Alaska App. 1985). In
camera review of confidential materials has also been held by the
United States Supreme Court to be the proper procedure for
safeguarding a criminal defendant's due process rights to
discovery of exculpatory information. See Pennsylvania v.
Ritchie, 480 U.S. 39, 41 (1987).
The state cites no authority to support the proposition
that a defendant seeking in camera review of confidential
materials must make a threshold showing to establish the
admissibility of the materials that might be found therein. We
are concerned that the trial court's requirement that March
demonstrate the admissibility of materials in Lester's file as a
prerequisite to in camera review of the file may have been unduly
stringent. A party seeking discovery cannot be expected to
convincingly argue admissibility in a vacuum, without knowing the
precise character of the information in the confidential file.
Nor can the trial court make an informed ruling on the
discoverability of confidential materials without having reviewed
them. As long as the party seeking discovery has a good faith
basis for asserting that the materials in question may lead to
the disclosure of favorable evidence, the trial court should
conduct an in camera review before ruling on a request for
discovery.
Because the trial court in this case denied March's
discovery request without first conducting an in camera review of
the confidential materials, we find it necessary to remand the
case for further proceedings. On remand, the trial court should
review Lester's personnel file; if the in camera review reveals
any information that would be relevant and material to March's
defense, that information should be turned over to March. Jones
v. Jennings, 788 P.2d 732, 739 (Alaska 1990); Dana v. State, 623
P.2d 348, 355 (Alaska App. 1981). In that event, a new trial
should be ordered unless the court determines that the failure to
provide the information amounted to harmless error. See Love v.
State, 799 P.2d 1343, 1344 (Alaska 1990). If no discoverable
evidence is disclosed, March's conviction should stand.
The district court's ruling on March's motion to
dismiss is affirmed, as is the court's failure to declare a
mistrial sua sponte. With regard to March's request for
discovery of Lester's personnel file, the case is REMANDED for
further proceedings consistent with this opinion.
_______________________________
1. 5 AAC 92.085(8) provides in relevant part:
[N]o person who has been airborne may
take or assist in taking a big game animal
until after 3:00 o'clock a.m. following the
day in which the flying occurred . . . .
2. Sweatt testified that March initially shot and
injured the moose and that Sweatt then fired the killing shot.
March testified that he never fired at the moose; he claimed that
Sweatt did all of the shooting.
