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THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Court of Appeals No. A-4772
Appellant, ) Trial Court No. 3AN-S87-1758CR
)
v. ) O P I N I O N
)
GARY NEWCOMB, )
) [No. 1338 - March 11, 1994]
Appellee. )
______________________________)
Appeal from the Superior Court, Third
Judicial District, Anchorage, Milton M.
Souter, Judge.
Appearances: Cynthia L. Herren, Assistant
Attorney General, Office of Special Prose-
cutions and Appeals, Anchorage, and Charles
E. Cole, Attorney General, Juneau, for
Appellant. Suzanne Weller, Assistant Public
Defender, and John B. Salemi, Public
Defender, Anchorage, for Appellee.
Before: Bryner, Chief Judge, Coats, Judge,
and Andrews, Superior Court Judge.*
[Mannheimer, Judge, not participating.]
BRYNER, Chief Judge.
On March 3, 1987, Anchorage police officers located and
arrested Gary Newcomb, a fugitive who had escaped from the
Wildwood Correctional Center. In the course of the arrest,
Newcomb shot and wounded two officers. After taking Newcomb into
custody, the police discovered $666 in cash on his person and
seized it.
Newcomb was charged with attempted murder, first-degree
assault, misconduct involving weapons, and escape. While these
charges were pending, Newcomb moved for return of the funds
seized from him upon his arrest. The superior court denied this
motion, ruling that the matter was under investigation and that
the money was being properly held as potential evidence. Newcomb
was eventually convicted; this court affirmed his conviction and
sentence in Newcomb v. State, 800 P.2d 935, 937 (Alaska App.
1990).
While his appeal was pending, Newcomb requested the
District Attorney's Office to return his money. The Anchorage
Police Department, which had control of the money, declined to
return it based on an investigating officer's belief that it
might be stolen.
On June 24, 1992, more than a year after his conviction
had become final, Newcomb filed a motion in his closed criminal
case, seeking return of the money. The state opposed the motion,
arguing that the superior court lacked jurisdiction and that
Newcomb's proper remedy would be a civil action against the
municipality. Superior Court Judge Milton M. Souter initially
denied Newcomb's motion, but subsequently granted a motion to
reconsider his ruling and ordered the money returned. The state
appeals, renewing the jurisdictional arguments it raised below.
Newcomb rejoins that the trial court has broad
ancillary powers over the disposition of property seized in
connection with a criminal case. See, e.g., United States v.
Elias, 921 F.2d 870, 872 (9th Cir. 1990); United States v. Maez,
915 F.2d 1466, 1468 (10th Cir. 1990); United States v. Wingfield,
822 F.2d 1466, 1470 (10th Cir. 1987); United States v. LaFatch,
565 F.2d 81, 83 (6th Cir. 1977); United States v. Wilson, 540
F.2d 1100, 1104 (D.C. Cir. 1976). He argues that the court did
not abuse its discretion in this case.
Although a trial court unquestionably exercises
authority over the disposition of evidence upon the conclusion of
a criminal case, the court's involvement in such issues typically
does not extend beyond assuring that property submitted to the
court in the course of the litigation be returned to the
submitting party. See, e.g., Criminal Rule 26.1(g), (h); Alaska
Court System Office of the Administrative Director,
Administrative Bulletin No. 9 VIII(4) (July 15, 1991). In the
interest of judicial economy and fairness, however, a trial court
may also exercise authority to decide ancillary issues regarding
the disposition of property involved in a criminal proceeding,
particularly when the decision of such ancillary issues is
incidental to the court's decisions on issues squarely presented
in the course of the proceeding. See, e.g., Wilson, 540 F.2d at
1103-04. See also United States v. Martinson, 809 F.2d 1364,
1367-68 (9th Cir. 1987). Nevertheless, in matters calling for an
exercise of ancillary jurisdiction, the scope of the trial
court's discretion is necessarily circumscribed by the principles
from which its ancillary powers derive: judicial economy,
procedural fairness, and sound public policy. Wilson, 540 F.2d
at 1103-04; Martinson, 809 F.2d at 1367-68.
In this case, prior to Newcomb's trial, the court was
required to determine the state's right to retain possession of
the money seized from Newcomb upon his arrest. However, prior to
the termination of the criminal proceedings, the trial court was
never called upon to resolve the competing claims of Newcomb and
the Municipality of Anchorage as to ownership of the money. This
issue is in no sense incidental to issues addressed or decided by
the trial court during the course of the criminal litigation;
rather, Newcomb belatedly raised it long after his criminal case
had been finally resolved.
Newcomb could as readily have pursued his claim in a
separate civil action. Because his conviction had long since
become final and his criminal case had been closed, and because
his motion raised issues that the trial court had not been
required to resolve during the pendency of the prosecution,
adjudication of Newcomb's claim in the context of the closed
criminal case offered no advantage of efficiency. To the
contrary, as evidenced by the expenditure of state resources
vastly disproportionate to the value of the funds in controversy,
the superior court's exercise of its equitable powers of
ancillary jurisdiction in this case can hardly be defended in the
name of judicial economy.
We further fail to see how the interest of fairness was
served by allowing Newcomb to proceed in a forum where the
Municipality of Anchorage -- which has actual possession and
control of Newcomb's money and is primarily responsible for the
resistance he has encountered in seeking its return -- is not
formally a party. Finally, we think it highly questionable
whether public policy favors allowing Newcomb to pursue what is
essentially a private civil action for money in a procedural
setting where he is served by court-appointed counsel at public
expense.
Under the circumstances, we conclude that the superior
court abused its discretion in entertaining Newcomb's motion and
deciding it on its merits in the context of his closed criminal
case.
The order entered below is VACATED.
_______________________________
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
