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THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Court of Appeals No. A-2185
Petitioner, ) Trial Court No. 3AN-S86-8787CR
)
v. ) O P I N I O N
)
DONALD McDONALD, )
) [No. 1342 - April 12, 1994]
Respondent. )
______________________________)
)
DONALD McDONALD, )
) Court of Appeals No. A-2211
Appellant, ) Trial Court No. 3AN-S86-8787CR
)
v. )
)
STATE OF ALASKA, )
)
Appellee. )
______________________________)
Appeal from the Superior Court, Third
Judicial District, Anchorage, Edmond W. Burke
and Mark C. Rowland, Judges.
Appearances: Kenneth M. Rosenstein,
Assistant Attorney General, Office of Special
Prosecu- tions and Appeals, Anchorage, and
Charles E. Cole, Attorney General, Juneau,
for Petitioner and Appellee. Lisa Rieger,
Anchorage, for Respondent and Appellant.
Before: Bryner, Chief Judge, Coats, Judge,
and Andrews, Superior Court Judge.*
[Mannheimer, Judge, not participating.]
BRYNER, Chief Judge.
Donald McDonald was tried by a jury for kidnapping and
first-degree murder. The jury convicted McDonald of kidnapping
but deadlocked on the murder charge. Following a retrial,
another jury convicted McDonald of first-degree murder. The
superior court sentenced McDonald to ninety-nine years in prison
on the murder charge, but declined to impose a sentence for the
kidnapping. McDonald appeals, challenging his convictions on
various grounds and alleging that the superior court erred in
denying a post-trial motion for a new trial based on newly
discovered evidence. The state opposes McDonald's challenges
and, in addition, seeks review of the superior court's refusal to
sentence McDonald on the kidnapping conviction. We affirm the
superior court's rulings on all issues.
FACTS
1. The Victim
McDonald's convictions stem from the 1986 abduction and
murder of Laura Henderson, crimes that appear to have resulted
from the breakup of Henderson's marriage to Kodiak resident Jack
Ibach and the ensuing dispute over custody of Henderson and
Ibach's two daughters. Henderson and Ibach were married for
approximately seven years; they lived in Kodiak with their two
daughters. In 1985, however, Henderson and Ibach separated, and
Ibach filed for divorce. Henderson moved into an apartment in
Kodiak with the two children and began working for the Kodiak
Women's Resource Crisis Center. She retained attorney Matthew
Jamin to assist her in the divorce proceedings.
A partial divorce decree was granted in February of
1985, but Henderson and Ibach were evidently unable to agree on
custody of the children. They had discussed alternating custody
every few weeks, but, as the dispute continued, each decided to
seek sole custody of the girls. Trial on the issue of custody
was scheduled for July of 1986. By March of 1986, the dispute
over custody had become acrimonious. Ibach apparently feared
that Henderson would continue to litigate until she was granted
sole custody.
2. The Setup
On March 28, 1986, a man telephoned Henderson at the
Center and made an appointment to see her. At approximately 3:00
p.m., Donald McDonald appeared at the Center. McDonald
introduced himself to Henderson, who then took him upstairs to a
conference room. McDonald left approximately ten minutes later.
After McDonald left, Henderson told co-workers Suzanne
Hinson, Janet Carter, and Cathy Wilson that McDonald had offered
her information she could use against Ibach in their custody
dispute. Henderson seemed ecstatic about the opportunity to
improve her chances of gaining full custody of her children. She
told her co-workers that she planned to meet McDonald near the
King Crab Cannery at 9:00 p.m. that evening; there, McDonald was
to give her a tape with information that would incriminate Ibach.
Henderson told Wilson that she would call her after the meeting.
After leaving work, Henderson went to the office of her
attorney, Jamin, to tell him about the information she expected
McDonald to give her that evening. Jamin was skeptical and
contacted a private investigator, Albert Ruble. After talking to
Henderson, Ruble feared that the 9:00 p.m. meeting might be a
setup. Ruble and Henderson agreed that Ruble would accompany
Henderson to the meeting site at the King Crab Cannery and would
maintain surveillance from a nearby hidden location. Henderson
then went home.
That evening, Catherine Munro, Henderson's mother, came
to Henderson's apartment to watch the girls while Henderson met
with McDonald. Before leaving her apartment, Henderson assured
her mother that she would call at 9:30 p.m. to let her know when
she would be home. To get to her meeting with McDonald,
Henderson had borrowed a car from a friend, Debra Sundberg.
Henderson had arranged to pick Sundberg up later that night,
after Sundberg finished her work shift at midnight.
3. The Abduction
Upon leaving her apartment shortly before 9:00 p.m.,
Henderson drove to the designated meeting place at the King Crab
Cannery. On her way to the cannery, she passed by Ruble, who
awaited her at a prearranged location in his own car. When
Henderson went by, Ruble started his car and drove after her. As
Ruble approached the cannery, he saw Henderson's car parked at
the side of the road, behind a white van. As he proceeded past
the van, Ruble could see Henderson inside. He also saw at least
one other person in the van with her.
Ruble drove out of view, parked his car, and returned
on foot, hoping to find a concealed vantage point from which he
could keep watch over Henderson and the van.
The van was out of Ruble's sight for less than a minute
before he reached his vantage point; nevertheless, by that time,
the van had disappeared. Ruble could see Henderson's car, still
parked on the street, empty. He quickly searched the area but
found no sign of Henderson or the van. Ruble immediately
reported Henderson's disappearance to the police, giving them a
detailed description of the van, including its license plate
number.
4. The Search
After reporting Henderson's disappearance to the
police, Ruble began a night-long search for Henderson and the
white van. Jamin and Henderson's parents joined in the efforts.
By checking the Department of Motor Vehicle license records, the
police determined that the white van belonged to McDonald. At
approximately 1:00 a.m., Henderson's stepfather spotted
McDonald's van parked near McDonald's residence and reported its
location to the police.
Shortly after 4:00 a.m., Kodiak Police Corporal John
Palmer, accompanied by Ruble, arrived at McDonald's residence to
investigate. McDonald came to the door. Palmer announced that
he was investigating a report of a missing person and asked if
McDonald knew Laura Henderson. McDonald became quite nervous:
his hands shook, he avoided making eye contact, and his voice
quivered. Looking "quizzically" at Palmer, he denied knowing a
Laura Henderson. Palmer then "countered with . . . Laura Ibach."
McDonald looked at Palmer "again kind of quizzically and . . .
told [Palmer] he knew Jack Ibach, and was that Jack's wife."
When Palmer said that she was, McDonald denied having "any
contact with her. Didn't know her."
At that point, however, Palmer confronted McDonald with
the information that his van had been under surveillance earlier
that night. McDonald then admitted that he knew Henderson and
acknowledged meeting with her, but claimed that she had spent
only a few moments in the van before she left. However, when
Palmer revealed that McDonald had been seen leaving the cannery
area with Henderson still inside his van, McDonald acknowledged
driving away with Henderson, but insisted that he had merely
taken her around the block before letting her out. Nevertheless,
McDonald refused to say exactly where Henderson had exited the
van.
As Palmer left McDonald's residence he passed by
McDonald's van and noticed that there appeared to be someone
inside. In the van, Palmer found James Kerwin, a friend of
McDonald, sleeping. Since a warrant had been issued for Kerwin's
arrest on unrelated charges, Palmer took Kerwin into custody.
McDonald was arrested in connection with Henderson's
disappearance later that day.
Henderson was never seen or heard from again after her
disappearance from the cannery in McDonald's van. All further
efforts to locate her proved futile. Although Henderson was
known to be punctual and reliable, she failed to call her co-
worker Cathy Wilson as she had promised. The car that Henderson
had borrowed from Debra Sundberg remained at the cannery, where
Henderson had parked it; Henderson did not pick Sundberg up after
work or contact her about the borrowed car. Henderson did not
show up at work to claim her March paycheck. She never contacted
her friends, co-workers, or parents again; nor did she ever
return home to her daughters.
5. The Investigation
The investigation of Henderson's disappearance
initially implicated McDonald as her abductor. As the
investigation progressed, however, evidence soon indicated that
Kerwin and Ibach were also involved.
a. Physical Evidence
McDonald was arrested on March 29, 1986, the day after
Henderson disappeared. The police found three knives on his
person. He also had a passport in his possession that had been
issued to him only a few weeks before.
That same day, the police obtained and executed a
search warrant for McDonald's van. The police found that the
van's cargo door window was broken. They were able to establish
that the window had been broken from the inside shortly before
the van was seized; the break was consistent with one caused by
the impact of a body part.
Inside the van, the police found two firearms: a .30-
caliber rifle and a loaded .32-caliber revolver. The van's
interior was dirty and wet; nevertheless, the police discovered
two very small, dry feathers on the floor. Forensic analysis
later indicated that one of the feathers had likely come from a
down coat Henderson was wearing on the night of her
disappearance.
The police also found the back of a post earring in the
van. A later search yielded the front portion of the earring.
The earring was identified as one that Henderson wore when she
left her home to meet with McDonald.
The police seized an Instamatic camera from the van;
the camera contained film that had been exposed. By developing
the film, the police obtained photographs depicting McDonald and
Kerwin outside of a cabin. The police eventually discovered that
this cabin was located at the end of Monashka Bay Road, near the
town of Kodiak. During the months following Henderson's
disappearance, numerous items belonging to Henderson, including
her wallet, pink tennis shoes, a full-length down coat, a belt,
and jeans, washed up along the shoreline of Monashka Bay, below
the cabin site. Henderson's body, however, was never found.
b. Additional Witnesses
In the course of their investigation, the police spoke
with various witnesses who tended to link McDonald to Henderson's
abduction. Colleen Jones told the police that a white van
matching the description of McDonald's emerged from a parking lot
near McDonald's residence at approximately 9:35 on the evening of
March 28, 1986 -- within minutes of the time of Henderson's
abduction. The driver pulled out directly in front of Jones,
swerving all over the road.
Dan Merrigan reported spotting a van of similar
description near Monashka Bay approximately ten or fifteen
minutes later. According to Merrigan, between 9:45 and 10:00
p.m. on the evening of the abduction, he saw the van coming from
the direction of Kodiak, driving down the middle of the roadway
near the end of Monashka Bay Road.
The police discovered that McDonald had been planning
to contact Henderson even before March 28, 1986. Ruth Evans, a
friend of McDonald, reported that two days before Henderson
disappeared, McDonald told her he knew Henderson and asked Evans
how to arrange a visit at the Center. According to Evans,
McDonald wanted to confirm that "anybody could go up and see
anybody" at the Center.
Police subsequently spoke with Gladys Baldwin, the
manager of the half-way house where McDonald lived. Baldwin told
the police that, soon after the police had questioned McDonald on
the night of Henderson's disappearance, McDonald handed her a
.357- caliber revolver that was wrapped in a paper bag. McDonald
asked Baldwin to "hold it" for him, claiming that it belonged to
Kerwin and insisting that "it has nothing to do with anything."
Baldwin disclosed that she had placed the gun in a dumpster after
learning of McDonald's arrest, but had retrieved it two days
later. Baldwin said she subsequently gave the gun to a friend of
McDonald. The police eventually contacted McDonald's friend,
JoAnn McKee, who still had the gun and surrendered it to them.
Baldwin also provided the police with valuable
information about the photographs from the camera that the police
had seized from McDonald's van. Baldwin explained that the
photographs were taken during an excursion by McDonald and Kerwin
to the Monashka Bay area. According to Baldwin, McDonald and
Kerwin were friends and saw each other frequently. About two
weeks before Henderson's disappearance, McDonald and Kerwin
wanted to drive out to the end of Monashka Bay Road to look for a
cabin. Baldwin and her young son had decided to accompany them.
Baldwin did not know why McDonald was interested in finding the
cabin. She said that the photographs were taken after the group
had arrived at their destination.
Baldwin further established a link between Kerwin and
Jack Ibach, telling the police that Kerwin had introduced Ibach
to her approximately a week and a half before Henderson
disappeared. Other witnesses fortified the connections between
McDonald, Kerwin, and Ibach. The police learned that Peter
Malley, who lived behind the house where Kerwin was staying, had
seen Ibach and McDonald together shortly before Henderson
disappeared; each had also been watching Henderson's apartment
within days of her disappearance. Malley had also observed Ibach
visiting Kerwin several times during the month preceding
Henderson's disappearance. McDonald, Kerwin, and Ibach had all
been seen together on at least one occasion by Malley.
A friend of Ibach, Marjorie Holden, informed the police
of several statements by Ibach suggesting that he had planned to
kill Henderson. Holden told the police that, prior to
Henderson's abduction, Ibach said he wished Henderson would
"disappear." Holden reported that Ibach mentioned several
possible ways of killing Henderson. Ibach told Holden that he
would not be caught because "if there was no body there was no
crime."
Holden specifically recalled that on one occasion Ibach
told her he had talked to "someone" who would make Henderson
"just disappear." Holden said that Ibach told her he planned to
pay the person out of a $14,000 payment he expected to receive in
the near future. According to Holden, Ibach described the person
he had talked to as an older man whose son lived in a mission;
Ibach was sure the man would not be concerned about getting
caught since he had serious health problems and did not have long
to live.
The police realized that Ibach's statement, as related
by Holden, appeared to describe Kerwin. Investigation confirmed
that Ibach had in fact expected to receive a $14,000 payment from
his pension account in February of 1986. The police also located
a notebook belonging to Kerwin, in which Kerwin had written a
partial telephone number that appeared to be Ibach's.
The police also spoke to Lynn Hutcherson, another
acquaintance of Ibach. Hutcherson described an occasion, which
had occurred about a month before Henderson disappeared, when
Ibach mentioned that his custody battle was getting "sticky," and
stated that he wished Henderson would "just disappear." Ibach
told Hutcherson not to "be surprised if [Henderson] just turns up
missing some day." A week or two later, Ibach asked if
Hutcherson knew of any way to find a "hitman," or if Hutcherson
or any of Hutcherson's friends had ever used one. Hutcherson
also told the police that almost immediately after Henderson
disappeared, Ibach telephoned him several times, asking
Hutcherson to keep their previous conversations confidential.
The police additionally learned from Nancy Frost, a
travel agent in Kodiak, that, shortly before Henderson's
disappearance, Ibach had asked Frost about arranging a trip to
Asia in April. Frost told the police that Ibach inquired about
the April airline fare to Bangkok, Thailand, and told her that
two of his friends were traveling by ship and would meet him
there. Before Ibach left the travel agency, he asked Frost not
to tell anyone that he had come in.
Finally, Ibach's friend John Kostal provided the police
with information directly linking Ibach to the .357-caliber
revolver that McDonald gave Baldwin the night of Henderson's
abduction. Kostal reported that Ibach had given him a handgun
about a month before Henderson disappeared. According to Kostal,
less than a week before the disappearance, Ibach asked Kostal to
return the gun, saying that he was concerned that it might be
stolen. At Ibach's request, Kostal returned the gun.
After Kostal reported this information, the police
showed him the revolver that Baldwin had received from McDonald
immediately after the abduction. Kostal identified the revolver
as the same gun that Ibach had given him and then taken back
shortly before Henderson disappeared.1
PROCEEDINGS
Based on evidence collected during the investigation of
Henderson's disappearance, a Kodiak grand jury indicted McDonald,
Ibach, and Kerwin on charges of first-degree murder and
kidnapping.
Prior to trial, McDonald moved to dismiss his
indictment, alleging insufficient evidence to support the
charges, as well as various procedural errors. McDonald also
moved to sever his trial from Ibach and Kerwin's, primarily on
the ground that he would be prejudiced by the introduction of
various hearsay statements made by Ibach that might be admissible
against Ibach, but would be inadmissible against McDonald. In
addition, McDonald moved to suppress the evidence seized from his
van, claiming that the warrant for the van was not supported by
probable cause and that a second, warrantless search of the van
was unlawful.
The superior court denied these motions; McDonald was
tried jointly with Ibach and Kerwin before an Anchorage jury in
November of 1986. The jury convicted McDonald of kidnapping, but
deadlocked on the murder charge. The jury also deadlocked as to
both charges against Ibach and acquitted Kerwin altogether.
McDonald and Ibach were retried jointly in April of
1987. Since Kerwin had been acquitted at the first trial, the
state called him as a witness at the second trial. The second
jury convicted McDonald on the unresolved first-degree murder
charge and convicted Ibach of both kidnapping and murder. The
superior court sentenced McDonald to a maximum term of ninety-
nine years' imprisonment for murder but declined to impose a
sentence on the kidnapping conviction, ruling that, under the
circumstances of the case, the kidnapping conviction merged with
McDonald's conviction for murder.
McDonald filed this appeal, challenging his conviction
on various grounds. The state contemporaneously petitioned for
review of the superior court's ruling that McDonald's murder and
kidnapping charges merged. We granted the state's petition and
consolidated the merger issue with McDonald's appeal. While his
appeal was pending, McDonald moved for a new trial, alleging
newly discovered evidence. After holding several evidentiary
hearings, the trial court denied McDonald's new-trial motion.
McDonald appealed the ruling; the issue was added to the already-
pending appeal.
MCDONALD'S APPEAL
1. Motion to Dismiss the Indictment
McDonald first contends that the superior court erred
in failing to dismiss his indictment. He renews many of the
arguments he raised below and adds several new arguments.
a. Standard of Review
The decision to deny a motion to dismiss an indictment
is committed to the trial judge's discretion and will not be over-
turned absent an abuse of discretion. Sheldon v. State, 796 P.2d
831, 834 (Alaska App. 1990). Under Alaska Criminal Rule 6(q), a
"grand jury shall find an indictment when all of the evidence
taken together, if unexplained or uncontradicted, would warrant a
conviction of the defendant." Criminal Rule 6(r)(1) permits the
prosecutor to present to the grand jury any evidence that "would
be legally admissible at trial." If inadmissible evidence is
presented, however, the indictment will be vitiated only "if the
remaining evidence was insufficient to support [the] indictment
or the improper evidence was likely to have had an overriding
influence on the grand jury's decision." Boggess v. State, 783
P.2d 1173, 1176 (Alaska App. 1989).
b. Grand Jury Bias
McDonald argues that he was denied a fair and impartial
grand jury because several grand jurors were acquainted with
Henderson, the defendants, and various grand jury witnesses or
had independent knowledge of the case.
To overturn an indictment because of grand jury bias,
the defendant must "make a factual showing of prejudice." Chief
v. State, 718 P.2d 475, 477 (Alaska App. 1986) (quoting Hohman v.
State, 669 P.d 1316, 1319 (Alaska App. 1983)). When a juror who
has been exposed to information concerning a case or is
acquainted with various trial participants nevertheless professes
to be capable of rendering a fair and impartial decision based on
the evidence presented, no prejudice is shown. See Chief, 718
P.2d at 477. All of the jurors McDonald refers to in alleging
grand jury bias either stated that they could be fair and
impartial or were excused.2 Since McDonald failed to sustain his
burden of showing prejudice, the superior court correctly
rejected his claim of grand jury bias.
c. Hearsay
McDonald's grand jury heard numerous witnesses testify
about statements that various persons connected with the case had
made. One group of grand jury witnesses -- Henderson's co-
workers from the Center, Janet Carter and Suzanne Hinson; her
attorney, Matthew Jamin; Jamin's investigator, Albert Ruble; the
friend whose car Henderson had borrowed, Debra Sundberg; and
Henderson's mother, Catherine Munro -- described the statements
Henderson made the day she disappeared about her afternoon
meeting at the Center with McDonald and her agreement to meet
McDonald at the cannery later that night. Other witnesses --
including Ibach's friends Marjorie Holden and Lynn Hutcherson --
related Ibach's statements about wanting Henderson to "disappear"
and wanting to find a "hit man."
McDonald argues that the testimony of these witnesses
amounted to inadmissible hearsay and required dismissal of his
indictment. These same witnesses testified at trial, where their
testimony was admitted over McDonald's objection. In a separate
argument, which we address and reject later in this decision,
McDonald contends that admission of this testimony at trial also
amounted to error. Because we ultimately conclude that the
disputed testimony was admissible at trial, we find that its
admission before the grand jury was also proper.
McDonald raises two hearsay claims in connection with
the grand jury that he has not addressed in his argument
concerning the admissibility of evidence at trial. First, he
claims that Kodiak travel agent Nancy Frost presented
inadmissible hearsay when she told the grand jury about Ibach's
pre-abduction inquiries into April airline fares to Bangkok and
his comment that he would meet two of his friends there. Ibach's
inquiries about airline fares are not hearsay, however, for they
are not factual assertions. See Stumpf v. State, 749 P.2d 880,
891 (Alaska App. 1988). Ibach's comment that he planned to meet
two friends in Bangkok was admissible as evidence of his planning
and preparation for the abduction and to show his interest in
leaving Kodiak afterwards. The statements were admissible for
these purposes under the state-of-mind exception to the hearsay
rule, Alaska Rule of Evidence 803(3).
Second, McDonald challenges the grand jury testimony of
Kodiak Police Officer William Walton. Walton told the grand jury
about items of Henderson's clothing that had washed up on the
shoreline of Monashka Bay; he went on to conjecture about where
the items must have entered the water, basing his conclusions on
information he had received from a Coast Guard expert on tides.
McDonald characterizes Walton's testimony as "expert witness
hearsay" and insists that it should not have been admitted.
However, McDonald failed to raise this issue before the trial
court; he has thus waived it on appeal. Alaska Criminal Rule
12(e); see Gaona v. State, 630 P.2d 534, 537 (Alaska App. 1981).
Moreover, even if it were improper, any error in its admission
before the grand jury would be harmless, since the remaining
evidence is more than sufficient to support McDonald's
indictment. See Boggess, 783 P.2d at 1176-77.3
d. Failure to Present Exculpatory Evidence
McDonald argues that the prosecution was aware of
exculpatory evidence that was not presented to the grand jury.
He asserts that the failure to present this evidence called for
dismissal of his indictment. Although the prosecution does have
a duty to present exculpatory evidence to the grand jury, "only
material substantially favorable to the defendant need be
presented." Sheldon v. State, 796 P.2d 831, 838 (Alaska App.
1990) (quoting Tookak v. State, 648 P.2d 1018, 1021 (Alaska App.
1982)). Exculpatory evidence will not be deemed "substantially
favorable," and its production by the prosecution will not be
required, unless it is the type of evidence that tends, in and of
itself, to negate the defendant's guilt. York v. State, 757 P.2d
68, 73 (Alaska App. 1988).
Although the evidence McDonald points to may well be
exculpatory in the limited sense that it may be the kind of
evidence skilled counsel might develop and rely on to argue
reasonable doubt to the jury, see Frink v. State, 597 P.2d 154,
166 (Alaska 1979), it does not tend to negate McDonald's guilt in
its own right. The superior court properly determined that the
prosecutor had no duty to present this evidence to the grand
jury. Id.
e. Pressuring Grand Jurors to Indict
McDonald contends that the prosecutor "rushed" the
grand jury by failing to inform it that Alaska's speedy trial
rule, which guarantees defendants the right to be tried within
120 days of arrest, could be extended if the grand jury believed
it necessary to obtain FBI test-results that were not yet
available. McDonald reasons that the prosecutor's failure to
give this information to the grand jury led the grand jury to
believe that it was required to vote on indictment immediately,
"even though dissatisfied with the scientific evidence."
McDonald's argument, however, builds on isolated
portions of the grand jury transcript. Our review of the record
convinces us that, when read in their entirety and in context,
the statements of the grand jury prosecutor do not support the
conclusion that the grand jury was pressured or misled into a
hasty vote on the indictments in McDonald's case. The trial
court was not clearly erroneous in concluding that the
prosecution did not exert undue pressure on the grand jury.
Andreanoff v. State, 746 P.2d 473, 477 (Alaska App. 1987).
f. Grand Jury Instructions
McDonald asserts that he was materially prejudiced
because the prosecutor misinstructed the grand jury on the law
applicable to his kidnapping charge, on the corpus delicti
doctrine, and on the standard of proof governing grand jury
proceedings.
McDonald first claims that the prosecutor misinstructed
the grand jury as to the element of restraint in the kidnapping
charge, see AS 11.41.370(3), by telling it that "restraining
someone doesn't mean tying them up, it just means limiting their
liberty in some way." McDonald insists that the prosecutor
should instead have made it clear that, for purposes of
kidnapping, an act of restraint must involve substantial
interference with liberty. Because McDonald did not raise this
argument in the trial court, we decline to consider it. Criminal
Rule 12(e); Gaona v. State, 630 P.2d 534, 537 (Alaska App. 1981).
McDonald next contends that the prosecutor failed to
explain the corpus delicti doctrine to the grand jury. McDonald
has raised a similar claim in challenging the sufficiency of the
evidence presented at trial; as we explain in greater detail when
we address that claim, the corpus delicti doctrine is essentially
irrelevant in this case because the state did not rely on proof
that McDonald had confessed to kidnapping and murdering
Henderson.
McDonald also challenges the prosecutor's instructions
on the standard of proof that applies to grand jury proceedings.
McDonald relies on comments made by the prosecutor that the
evidence had to be sufficient to "put the person to trial" or
"charge him with a crime" before the grand jury should indict.
McDonald maintains that this advice conflicts with the standard
specified in Alaska Criminal Rule 6(q), which permits the grand
jury to indict only "when all of the evidence taken together, if
unexplained or uncontradicted, would warrant a conviction[.]"
The purportedly improper instruction, however, was made
by the prosecutor in response to a grand juror who asked for
clarification of the Rule 6(q) standard after it was read in full
to the entire grand jury. While the prosecutor's informal
explanation was certainly incomplete, when viewed in the context
of the full standard that had just been read, the informal
explanation was neither misleading nor inaccurate. See Sheldon
v. State, 796 P.2d 831, 837 (Alaska App. 1990) (charge was
sufficient if it left the grand jury "with the understanding that
it should not return an indictment unless it was satisfied that
the evidence presented, if unexplained or uncontradicted,
established a probability of [the defendant's] guilt and would
therefore . . . justify, holding [the defendant] for trial"); see
also Hohman v. State, 669 P.2d 1316, 1320 (Alaska App. 1983).
g. Sufficiency of Grand Jury Evidence
McDonald argues that the state failed to prove specific
intent for either kidnapping or murder; he claims that there was
no evidence that he knew Henderson was going to be kidnapped or
murdered or that he intended to help cause her death. McDonald
ignores the significance of the circumstantial evidence, which
clearly indicated his participation in a planned abduction and
murder. Though largely circumstantial, the totality of the
evidence before the grand jury was sufficient to support its
finding that "all the evidence taken together, if unexplained or
uncontradicted" would have warranted McDonald's convictions.
Alaska R. Crim. P. 6(q).
h. Conclusion on Grand Jury Issues
In summary, we conclude that the trial court did not
abuse its discretion in denying McDonald's motion to dismiss the
indictment. Sheldon, 796 P.2d at 834.
2. Motion to Suppress
a. Procedural Background
The morning after Henderson was abducted, the police
obtained and executed a warrant authorizing them to seize and
search McDonald's van. One of the articles discovered in the
search was the back of a post earring. After the initial search,
the van was towed to a gas station to determine how much fuel
remained in the tank; it was later towed to a secured impound lot
in Kodiak, where it was held as evidence. Approximately six
months later, shortly before the first trial, Kodiak Police
Detective Barry Paris again searched the van at the impound lot;
he noticed the front portion of the previously-discovered earring
back enmeshed in wiring between the engine cowling and one of the
van's seats. Paris had been given a description of the earrings
worn by Henderson on the night of her abduction and recognized
the earring as Henderson's. Before seizing the earring, however,
Paris applied for and obtained a second warrant.
Prior to trial, McDonald moved to suppress the evidence
seized from his van. He argued that the first warrant was issued
without probable cause and the second was tainted because it was
based on evidence Paris obtained during his second entry into the
van, which, according to McDonald, was warrantless and therefore
impermissible. The trial court denied this motion, finding that
the first warrant was supported by probable cause and ruling that
the state did not need a second warrant to reenter the van
because the van had remained in police custody. McDonald renews
his arguments on appeal.
b. First Warrant
McDonald contends that the trial court should have
suppressed the evidence seized from the first search of his van
because the warrant was not supported by probable cause.
Specifically, McDonald argues that the magistrate had no evidence
of violence or forcible restraint, or of a motive for McDonald to
harm Henderson.
Probable cause sufficient to issue a search warrant
exists whenever "reliable information is set forth in sufficient
detail to warrant a reasonably prudent [person] in believing that
a crime has been or was being committed." Badoino v. State, 785
P.2d 39, 41 (Alaska App. 1990) (quoting Harrelson v. State, 516
P.2d 390, 396 (Alaska 1973)) (citation omitted); State v.
Chapman, 783 P.2d 771, 772 (Alaska App. 1989). A finding of
probable cause will be reversed only if an abuse of discretion is
shown. Badoino, 785 P.2d at 41.
Here, the magistrate who issued the initial warrant
heard evidence describing Henderson's meeting with McDonald in
his van and the events leading up to that meeting. Private
investigator Ruble expressly testified that he had suspected a
setup and that McDonald matched Henderson's description of the
man she was to meet at King Crab Cannery. The magistrate was
also informed that Henderson had not been seen or heard from
after her disappearance and that efforts to determine her
whereabouts had proven futile. Officer Palmer described his
interview with McDonald, stating that McDonald admitted that he
had met Henderson the previous evening and that she had been
inside his van.
Given the totality of the evidence, the magistrate who
issued the warrant could reasonably have concluded that Henderson
had probably been kidnapped and that evidence of the kidnapping
could likely be found in McDonald's van. The superior court did
not abuse its discretion in finding the first warrant to be
supported by probable cause.
c. Second Search
McDonald challenges the validity of the second search
warrant, which resulted in the seizure of Henderson's earring,
arguing that the search was tainted by Paris' warrantless entry
into McDonald's van. McDonald contends that the first warrant
was no longer valid when Paris entered the van shortly before
trial; accordingly, in McDonald's view, the trial court erred in
finding that a second warrant was unnecessary.
It is settled, however, that
[a]n object lawfully seized as evidence may
be kept in custody pending trial, and during
that period "it is plainly within the realm
of police investigation to subject [such an
object] to scientific testing and
examination" when such is done "for the
purpose of determining its evidentiary
value." That is, if the initial seizure was
upon probable cause that the item would be of
evidentiary value, it may be tested and
examined for the purpose [of] maximizing its
value in this respect.
3 Wayne R. LaFave, Search & Seizure 7.5(c) (1987) (footnotes
omitted) (quoting People v. Teale, 450 P.2d 564 (Cal. 1969)).
Here, under the authority of the first warrant,
McDonald's van had been seized and held as evidence. McDonald
nevertheless contends that the van did not remain in police
custody. He points out that it was moved twice -- once when it
was towed to the gas station to test the fuel in its tank and
once again when it was towed from the police garage to the
impound lot -- and thus left police custody before Paris entered
and searched it again without a warrant. Although McDonald is
correct in noting that the van was moved, he is mistaken in
asserting that the movement resulted in a loss of police custody.
The record establishes that, from the time of its initial
seizure, the van remained in continuous police custody as
evidence in McDonald's case.
McDonald had no reasonable expectation of privacy as to
the van or its contents while the van was being held as evidence
by the police. Griffith v. State, 578 P.2d 578, 580 (Alaska
1978) ("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") (quoting United States v. Grill, 484 F.2d 990, 991
(5th Cir. 1973)). For this reason, Paris' warrantless
reexamination of the van and its contents was permissible.
Accordingly, the superior court did not err in concluding that
Paris could have seized the earring during his warrantless
search, without obtaining the second warrant. The validity of
the second warrant is therefore a moot issue.
3. Hearsay at Trial
At trial, the state offered, through the testimony of
various witnesses, statements made by Henderson and Ibach.
McDonald unsuccessfully objected to the testimony on hearsay
grounds and on the ground that these statements violated his
constitutional right of confrontation. McDonald also raised a
hearsay objection to the admission of Kerwin's notebook, which
contained a partial notation of Ibach's telephone number.
McDonald renews these arguments on appeal.
a. Henderson's Hearsay
Over McDonald's hearsay and confrontation clause
objections, various associates of Henderson -- Janet Carter,
Suzanne Hinson, Cathy Wilson, Matthew Jamin, Albert Ruble, and
Catherine Munro -- testified about statements Henderson had made
in the time between her afternoon meeting with McDonald at the
Women's Center and her meeting with McDonald at the cannery later
that night.
The trial court admitted the evidence pursuant to
Alaska Rule of Evidence 803(3), instructing the jury that
Henderson's statements were admissible to show her plans for the
evening of her disappearance.
Alaska Rule of Evidence 803(3) carves out an exception
to the hearsay rule when a statement is not offered to prove the
truth of the matter asserted but is offered to prove the
declarant's state of mind. Henderson's statements were properly
admitted under this exception to prove that she intended to meet
McDonald at the King Crab Cannery that evening.
The confrontation clause does not require an
independent showing of reliability other than that necessary to
satisfy the requirements of a firmly rooted hearsay exception:
Reliability can be inferred without more in a
case where the evidence falls within a firmly
rooted hearsay exception. In other cases,
the evidence must be excluded, at least
absent a showing of particularized guarantees
of trustworthiness.
Ohio v. Roberts, 448 U.S. 56, 66 (1980); Charles v. State, 780
P.2d 377, 382 (Alaska App. 1989). Because the state-of-mind
exception to the hearsay rule is traditionally accepted and
firmly rooted, admission under this exception did not violate
McDonald's right to confrontation. See Mutual Life Insurance Co.
v. Hillmon, 145 U.S. 285, 295 (1892); Barber v. Scully, 731 F.2d
1073, 1075 (2d Cir. 1984).
McDonald correctly observes that, since A.R.E. 803(3)
would extend only to evidence offered to prove Henderson's state
of mind, this exception would not justify the admission of
Henderson's statements to prove the substantive truth of "facts
[Henderson] remembered or believed." In other words, the state-
of-mind exception would not permit the use of Henderson's
statements to prove what McDonald told Henderson during their
afternoon encounter at the Center or that McDonald -- as distinct
from Henderson -- planned to be at the cannery. Likewise, while
Henderson's statements could be admitted under this exception to
show that she believed she would receive information relating to
her custody dispute with Ibach when she met McDonald at the
cannery, the exception would not allow admission to prove that
McDonald had actually promised to give her such information or
that she would indeed receive it.
It does not appear, however, that Henderson's
statements were admitted for these purposes. Particularly with
respect to Henderson's statements that she would receive
information implicating Ibach, it is apparent that this evidence
was not offered to prove that Henderson actually received this
information. The state's theory was just the opposite: the
state wanted to prove that McDonald had never planned to give
such material to her, but only promised it as a ruse to lead her
into a trap.
Moreover, to the extent that Henderson's statements
might have been used to prove the truth of substantive facts
Henderson said she remembered -- in other words, what McDonald
had told her -- her statements were independently admissible as
excited utterances pursuant to A.R.E. 803(2), which creates a
hearsay exception for any statement "relating to a startling
event or condition made while the declarant was under the stress
of excitement caused by the event or condition." As the trial
court correctly recognized, this provision applies to Henderson's
statements.
Henderson's statements about what McDonald had told her
related to a startling event: McDonald's unexpected appearance
at the Center with the news that he would turn over information
to help Henderson obtain full custody of her children. The
witnesses who related Henderson's out-of-court statements
uniformly testified that Henderson was "very excited,"
"ecstatic," and in an "extremely high" emotional state after
meeting McDonald. Although some question might be raised as to
Henderson's statements to Jamin, Ruble, and Munro, which occurred
approximately an hour after her meeting with McDonald at the
Center, the statements Henderson made to her co-workers
immediately after the meeting plainly fell within the excited
utterance exception.4
McDonald's claim that his right to confront and cross-
examine Henderson was violated fails under A.R.E. 803(2) as well.
The excited utterance exception is a firmly rooted hearsay
exception and statements admitted under this exception do not
violate the confrontation clause. Brandon v. State, 839 P.2d
400, 407 (Alaska App. 1992).
Finally, we note that if any error occurred in
admitting the disputed evidence for the purpose of establishing
that McDonald did in fact meet with Henderson on the night of her
abduction, that error would plainly be de minimis. McDonald
expressly admitted meeting Henderson at the cannery; he did not
dispute this admission at trial; and abundant independent
testimony corroborated McDonald's presence. See Benefield v.
State, 559 P.2d 91, 96 (Alaska 1977) (holding that error in
admitting codefendant's statements was harmless; defendant's own
admissions and other admissible witness testimony established
identical proposition).
b. Ibach's Hearsay Statements
At trial, over McDonald's objections, Lynn Hutcherson,
Marjorie Holden, and John Kostal were allowed to testify about
statements Ibach had made to them, both before and after
Henderson's disappearance. Although McDonald acknowledged that
the statements might be admissible against Ibach, who was also on
trial, McDonald claimed that the statements were inadmissible
hearsay as to himself and that their admission against Ibach
would violate his right to confrontation under Bruton v. United
States, 391 U.S. 123 (1968).
Bruton involved a joint trial of defendant Bruton and
his codefendant. Although the codefendant did not testify, the
trial court admitted the codefendant's confession, which
expressly implicated Bruton. The jury was instructed to consider
the confession only as to the codefendant and to disregard it in
determining Bruton's guilt. The Supreme Court found a violation
of Bruton's right to confront and cross-examine the codefendant,
concluding that no jury could have heeded a limiting instruction
to disregard such "powerfully incriminating" evidence of Bruton's
guilt. Id. at 135-37.
(i) Hutcherson's Testimony
At McDonald's trials, Lynn Hutcherson, an acquaintance
of Ibach, testified that Ibach told him that Ibach felt "it would
be easier for the custody fight and everything if [Henderson]
just wasn't around, if she just didn't show up some day or just
disappeared." Ibach also told Hutcherson not to "be surprised if
[Henderson] just turns up missing some day." Hutcherson
testified that Ibach asked him if he had ever used a "hit man" or
knew anybody who might know how to contact one. Hutcherson also
testified that a few days after Henderson disappeared, Ibach
called him and told him not to tell the police about their
earlier conversations because those conversations were
confidential and "between us buddies."
On appeal, McDonald contends that Hutcherson's
testimony was admissible only against Ibach and that its
admission against McDonald violated the Bruton rule.
The Bruton rule, however, applies only when a
codefendant's out-of-court statement is admissible against the
codefendant solely as an admission of a party-opponent, see
A.R.E. 801(d)(2), and is inadmissible hearsay as to the
defendant. Bruton has no application when a codefendant's
statements do not amount to hearsay, or when they are
independently admissible against the defendant under a recognized
hearsay exception.5
Here, a number of the statements Hutcherson attributed
to Ibach were not hearsay. Under A.R.E. 801(c), out-of-court
statements will amount to hearsay only when "offered in evidence
to prove the truth of the matter asserted." Hutcherson's
testimony about Ibach's comment that his custody battle would be
simpler if Henderson disappeared was not offered to prove the
truth of the matter asserted -- that his custody battle would
indeed be simpler. Similarly, Ibach's request that Hutcherson
not tell the police about his earlier comments is not a factual
assertion and is also not hearsay. Stumpf v. State, 749 P.2d
880, 891 (Alaska App. 1988). Admission of out-of-court
statements that were not hearsay did not violate McDonald's right
to confront the witnesses against him. Brandon v. State, 839
P.2d 400, 408 (Alaska App. 1992).
McDonald is correct that Ibach's statements to
Hutcherson not to "be surprised if [Henderson] just disappears,"
and Ibach's questions about whether Hutcherson knew of a contract
killer may qualify as hearsay, in that they may be construed as
including implied assertions of Ibach's desire to kill Henderson.
As such, however, these statements reflected Ibach's then-
existing state of mind. They were admissible under Alaska Rule
of Evidence 803(3) and were highly relevant, as to both Ibach and
McDonald, to establish motive. Since the statements could be
admitted independently of their status as admissions of a party-
opponent, their use was not restricted to Ibach, and no Bruton
danger arose.
McDonald contends, however, that admission of hearsay,
even if pursuant to a firmly rooted exception, violates his right
to confront the witnesses against him. He reasons that, under
Hawley v. State, 614 P.2d 1349, 1358 (Alaska 1980), even a
statement admissible under a firmly rooted exception will violate
the confrontation clause unless the court independently finds
that the statement is "sufficiently reliable" to justify its
admission. McDonald misreads Hawley, which holds only "that
evidence admissible under the joint undertaking exception to the
hearsay rule does not automatically satisfy the requirements of
the confrontation clause. To satisfy the right to confrontation,
a statement must have sufficient indicia of reliability." Id. at
1358. Hawley thus speaks only in the context of the
coconspirator exception to the hearsay rule and does not apply to
other hearsay exceptions.
As we have previously indicated, the state-of-mind
exception to the hearsay rule is a firmly rooted exception; a
statement admitted pursuant to such an exception does not violate
the confrontation clause.
(ii) Holden's Testimony
At both McDonald's trials, Marjorie Holden testified
that Ibach told her that he felt like killing Henderson, that he
had spoken to someone "about having [Henderson] taken care of,"
and that Henderson would "disappear." Holden also testified that
on several occasions Ibach discussed numerous scenarios for
Henderson's disappearance. However, because Kerwin was a
codefendant with McDonald and Ibach during the first trial, the
trial court precluded Holden from testifying about Ibach's
description of the person he had consulted regarding having
Henderson "taken care of." The description fit Kerwin, and the
trial court evidently feared that its admission at the first
trial might create a Bruton problem as to him.
At the second trial, however, the same problem did not
arise, since Kerwin had been acquitted at the first trial. The
trial court allowed Holden to testify about Ibach's description
of the contract killer: "an older man, someone with a serious
health problem. He had a serious drinking problem, the man had a
teenage son at the [Baptist] Mission." Kerwin was called as a
witness at the second trial; the jury was made aware that the
description fit him.
McDonald contends, as he did below, that Ibach's
statements to Holden were hearsay and that their admission
violated his right to confrontation. As was the case with
Hutcherson's testimony, however, Holden's testimony about Ibach's
declaration of his desire to see his ex-wife disappear and his
discussion about methods for achieving this goal reflected
Ibach's state of mind and were admissible against both Ibach and
McDonald under Alaska Rule of Evidence 803(3). As discussed
above, admission of state-of-mind evidence did not violate
McDonald's confrontation rights. See Mutual Life Insurance Co.
v. Hillmon, 145 U.S. 285, 295 (1892); Barber v. Scully, 731 F.2d
1073, 1075 (2d Cir. 1984).
Ibach's announcement that he had spoken to someone
about making Henderson disappear and his description of the
contract killer were admissible against Ibach under A.R.E.
801(d)(2)(A) as admissions by a party-opponent, but not against
McDonald.6 In admitting these statements, the trial court
expressly advised the jury that Holden's testimony was admissible
only against Ibach and should be disregarded in the consideration
of McDonald's guilt.
McDonald nevertheless argues that the trial court's
limiting instruction was insufficient to protect him. He asks
this court to adopt, as a matter of state constitutional law, the
reasoning of the dissent in Richardson v. Marsh, 481 U.S. 200
(1987).
In Richardson v. Marsh, Marsh and a codefendant had
been charged with murder, robbery and assault. At trial, the
codefendant's confession was admitted over Marsh's objection.
Id. at 203. The confession described a conversation between the
codefendant and another accomplice while driving to the victims'
home, during which the accomplice said he would kill the victims
after robbing them. Id. at 203 n.1. Although Marsh was in the
car at the time of the conversation, the trial court redacted the
codefendant's confession to omit all reference to Marsh and her
presence in the vehicle. Id. The trial court instructed the
jury not to use the confession against Marsh in any way. Id. at
204.
Marsh nevertheless argued that the codefendant's
confession was inferentially incriminating and thus violated the
Bruton rule. The crucial issue at trial was whether Marsh had
been aware of the accomplice's intent to kill the victims.
Marsh's presence in the car was established by her testimony at
trial and was undisputed. Marsh argued that the evidence of her
presence, taken in conjunction with the codefendant's confession,
made it clear that Marsh knew of the accomplice's intent. Marsh
contended that, under such circumstances, just as in Bruton, no
jury could reasonably be expected to disregard the powerfully
incriminating significance of the confession in establishing
Marsh's guilt.
The majority of the Supreme Court found Marsh's
argument unpersuasive, holding that "the Confrontation Clause is
not violated by the admission of a non-testifying codefendant's
confession with a proper limiting instruction when, as here, the
confession is redacted to eliminate not only the defendant's
name, but any reference to his or her existence." Id. at 211.
The Court noted:
In Bruton, the codefendant's confession
"expressly implicat[ed]" the defendant as his
accomplice. Thus, at the time that
confession was introduced there was not the
slightest doubt that it would prove
"powerfully incriminating." By contrast, in
this case the confession was not
incriminating on its face, and became so only
when linked with evidence introduced later at
trial (the defendant's own testimony).
Where the necessity of such linkage is
involved, it is a less valid generalization
that the jury will not likely obey the
instruction to disregard the evidence.
Id. at 208 (citations omitted) (footnote omitted).
The Marsh dissent disagreed with the majority's
categorical restriction of the Bruton rule, reasoning that a
basic premise of the rule was that "certain kinds of hearsay `are
at once so damaging, so suspect, and yet so difficult to
discount, that jurors cannot be trusted to give such evidence the
minimal weight it logically deserves, whatever instructions the
trial judge might give.'" Id. at 212. The dissent argued that
"Bruton has always required trial judges to answer the question
whether a particular confession is or is not `powerfully
incriminating' on a case-by-case basis; they should follow the
same analysis whether or not the defendant is actually named by
his or her codefendant." Id. at 214.
Relying on the Marsh dissent, McDonald urges us to find
that Ibach's hearsay description of a contract killer who
resembled Kerwin, when viewed in conjunction with Kerwin's
testimony at the second trial that he and McDonald were together
most of the day of Henderson's abduction, "unfairly" associated
McDonald with Ibach and thus deprived him of a fair trial.
We need not determine if the majority or dissenting
views in Marsh would apply as a matter of Alaska constitutional
law, for we find McDonald's confrontation clause argument
unpersuasive under either view. Under the majority's holding in
Marsh, Ibach's statement, accompanied as it was by a limiting
instruction, was properly admitted, since it did not explicitly
refer to McDonald, or, for that matter, to Kerwin. McDonald
concedes the point. A like result follows under the approach
espoused by the Marsh dissenters, who call for a case-by-case
analysis to determine whether the inferential significance of the
codefendant's out-of-court statement is so "powerfully
incriminating" that "jurors cannot be trusted to give such
evidence the minimal weight it logically deserves."
Under this approach, Ibach's statement might arguably
be deemed "powerfully incriminating" as to Kerwin, who fit the
description of the contract killer. Given the jury's exposure to
Kerwin when he testified at the second trial, it could easily
have inferred that Kerwin was the person with whom Ibach had
spoken about killing Henderson. Even as to Kerwin, however, it
is an open question whether the direct inference arising from
physical similarity would qualify as the type of "powerfully
incriminating" evidence that could be equated with a confession
expressly naming Kerwin as a perpetrator; for even given Kerwin's
similarity to the killer described by Ibach, the link suggested
by Ibach's statement remained speculative at best, and Ibach's
statement itself was equivocal as to whether any definite
arrangements had been made with the person whom he had contacted.
When viewed with regard to McDonald, rather than
Kerwin, the incriminatory potential of Ibach's statement is
attenuated indeed. In themselves, neither Ibach's statement nor
the inference arising from Kerwin's resemblance to the person
whom Ibach described created any link, direct or indirect, to
McDonald. To find incriminatory potential as to McDonald, the
jury would have been required to draw a second-tier inference
based on Kerwin's testimony that he and McDonald had been
together on the day of the abduction.
Yet the connection established by McDonald's mere
physical presence in Kerwin's company is hardly the type of
"powerfully incriminating" link to Ibach that a jury would have
been hard pressed to disregard. To the contrary, jurors are
regularly given, and are routinely presumed to follow,
instructions commanding that no inference of guilt should be
drawn from evidence showing the defendant's mere acquaintance or
association with others. When such instructions are used, we
reasonably expect the jury to base its determination of guilt on
evidence showing something more than mere association.
Precisely the same situation exists here. The jury was
told to disregard Ibach's statements to the extent that those
statements suggested McDonald's guilt. Insofar as the evidence
merely established that McDonald associated with Kerwin, Ibach's
statements were potentially incriminating only in a way that
could readily be disregarded by a properly instructed jury.7 As
in similar situations involving problems of guilt by association,
there is no cause here to believe that the court's instruction to
disregard the weak and attenuated link between McDonald and Ibach
could not be heeded or that the jury could not be counted on to
search elsewhere for independent, "powerfully incriminating"
evidence before finding McDonald guilty. Here, such evidence
existed in abundance. In the face of the independent evidence of
McDonald's guilt, there is no basis for concluding that Ibach's
hearsay statements influenced the jury's verdict in any manner.
Our conclusion that admission of Ibach's statements
would not be violative of McDonald's right of confrontation even
under the analysis adopted by the dissent in Marsh finds strong
additional support in pre-Marsh cases decided by the Alaska
Supreme Court, which have consistently declined to find hearsay
statements similar to Ibach's "powerfully incriminating" for
purposes of applying Bruton. See Hawley v. State, 614 P.2d 1349,
1357 (Alaska 1980); Benefield v. State, 559 P.2d 91, 95-96
(Alaska 1977); Whitton v. State, 479 P.2d 302, 314-15 (Alaska
1970). The trial court did not abuse its discretion in admitting
Holden's testimony concerning Ibach's statements.
(iii) Kostal's Testimony
McDonald advances additional hearsay and confrontation
clause arguments as to the testimony of John Kostal, a friend of
Ibach who testified only at the second trial. Kostal stated that
approximately four weeks before Henderson disappeared, Ibach gave
him a stainless steel .357-caliber revolver. Two or three weeks
later, Ibach asked for the gun back, claiming that he thought it
might have been stolen. Kostal returned the gun to Ibach. At
trial, Kostal identified the gun that McDonald gave Baldwin the
night Henderson disappeared as the same gun that Ibach had given
him and taken back before Henderson's disappearance. Kostal
testified that, after Henderson's disappearance, Ibach told him
that the gun was unrelated to Henderson's disappearance and asked
him to be quiet about it.
McDonald claims that Kostal's testimony about Ibach's
statements is inadmissible hearsay and that its admission
violated his right to confrontation. Ibach's statements to
Kostal are not hearsay, however, for, as we have already
indicated, hearsay is "a statement . . . offered in evidence to
prove the truth of the matter asserted." A.R.E. 801(c). Ibach's
statement that the gun was unrelated to Henderson's disappearance
was not offered to prove that the gun was, in fact, unrelated to
Henderson's kidnapping or murder. See Walker v. State, 652 P.2d
88, 93 (Alaska 1982). Moreover, Ibach's request to keep quiet
about the gun was not a statement asserting any historical fact.
Because it was offered, not to prove any factual assertion
therein, but instead to show consciousness of guilt on Ibach's
part, the statement was not hearsay. See Stumpf v. State, 749
P.2d 880, 898 (Alaska App. 1988). And because none of Kostal's
testimony is objectionable on hearsay grounds, there is no
confrontation violation. Id. at 894 (holding that "[a]n out-of-
court statement admitted for a nonhearsay purpose does not
violate an accused's right to confront the prosecution's
witnesses").
The trial court properly admitted Kostal's testimony.
c. Kerwin's Notebook
McDonald's last hearsay claim pertains to James Kerwin.
After Kerwin's arrest, police found a notebook among his
possessions. The notebook contained a partial telephone number
that appeared to be Ibach's. This portion of the notebook was
admitted at trial, over McDonald's objection, to bolster the
connection between Ibach and Kerwin. On appeal, McDonald argues
that the notebook should have been excluded as hearsay. The
claim is meritless, since the notebook was not offered to prove
the truth of any factual assertion contained therein and hence
was not hearsay. A.R.E. 801(c). Because the notebook was not
hearsay, its admission did not violate McDonald's right to
confrontation. Stumpf, 749 P.2d at 894.
4. Admissibility of Physical Evidence
a. Photographs
McDonald challenges as unfairly prejudicial the
admission of photographs from the camera found in McDonald's van,
which depicted the excursion Gladys Baldwin and her son, Michael,
took with McDonald and Kerwin to a cabin overlooking Monashka
Bay. McDonald particularly objects to a photograph of himself
and Kerwin "horsing around near the edge of a cliff with Michael,
holding him by the arms and legs," contending that it is unduly
suggestive. McDonald argues that Baldwin could have testified to
establish McDonald and Kerwin's familiarity with the area.
A trial judge has broad discretion to admit or exclude
photographs. The judge's decision must be affirmed on appeal
unless the judge abuses that discretion. Valentine v. State, 617
P.2d 751, 754 (Alaska 1980); Pena v. State, 664 P.2d 169, 177 n.7
(Alaska App. 1983), rev'd on other grounds, 684 P.2d 864 (Alaska
1984). The disputed photographs were relevant to establish
McDonald's awareness of the cabin site, his familiarity with the
location, and as evidence of his preparation and planning. We
conclude that the trial court did not abuse its discretion in
admitting the photographs.
b. Guns and Knives
At McDonald's first trial, Kodiak Police Officer
William Rhodes testified that during his search of McDonald's van
he found a .30-caliber rifle and a loaded .32-caliber pistol.
Kodiak Police Officer William Walton testified that McDonald had
three knives in his possession when he was arrested. However,
only the pistol and one of the knives were admitted into
evidence. At the second trial, the rifle was apparently not
mentioned and no knives were admitted. The .32-caliber pistol,
however, was again admitted. Also admitted was the .357 caliber
revolver that McDonald had given to Baldwin, which Kostal
identified as being the same gun Ibach had given him before
Henderson's abduction. (The revolver was excluded at the first
trial.)
McDonald argues that the trial court abused its
discretion in admitting these weapons, arguing that they are
irrelevant because there is no evidence to establish their use in
the commission of the alleged crimes.
To be relevant, evidence need only have "a tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than
it would be without the evidence." A.R.E. 401.
[T]he test of relevance has never required
that the evidence offered be conclusive of
the point [ ] sought to be established. All
that is required for evidence to be relevant
is that it render the proposition for which
it is offered more probable than it would
otherwise have been. "Any more stringent
requirement is unworkable and unrealistic."
Denison v. Anchorage, 630 P.2d 1001, 1003 (Alaska App. 1981)
(quoting Commentary to A.R.E. 401).
In the present case, the .357-caliber revolver was
relevant to establish a connection between McDonald and Ibach and
to show consciousness of guilt on McDonald's part. The trial
court did not abuse its discretion in admitting it for these
purposes.8 Bangs v. State, 663 P.2d 981, 984 (Alaska App. 1983)
(holding that the probative nature of a weapon was supported when
"shortly after the [crime], [the defendant] gave the pistol to a
friend, who buried it").
The remaining weapons were admitted to show that
McDonald had the means at hand to kidnap Henderson, that is, to
restrain her by threat of violence or force. Again, the evidence
was properly admitted for this purpose. Although McDonald
suggests that the jury might have believed that these were the
murder weapons, our review of the record indicates that the jury
was made aware of the proper relevance of the weapons and could
not reasonably have concluded that the state was advocating that
they were the murder weapons.
We find no error.
5. Henderson's Drug Use
Prior to the first trial, the prosecution moved for a
protective order against admission of any evidence of Henderson's
alleged use of controlled substances. The superior court did not
rule on the issue, but asked instead if the defense intended to
pursue the issue. Only Ibach's lawyer responded, saying that "it
is certainly possible." The trial court replied, "before you get
into it, I want to know about it and I want to know about it out
of the jury's presence . . . so that we can . . . find out where
we're going, but I'm not going to say at this moment that it's
necessarily inadmissible." The issue did not arise again before
or during the first trial.
Prior to the second trial, the state renewed its
request for a protective order; the court informed the parties
that the protective order would "be granted unless you make some
application that I don't understand at this time." No one ever
mentioned the issue again.
McDonald now argues that the protective order prevented
him from presenting evidence that would have indicated that he
met with Henderson to discuss a drug transaction. As
demonstrated by the portions of the transcript quoted above,
however, the trial court did not preclude the defense from
presenting evidence of Henderson's drug use. Instead, it ruled
only that the defense would be required to show the admissibility
of any proposed inquiry into the area before raising the issue in
the presence of the jury. In any event, McDonald's failure to
make a proper offer of proof as to this evidence at trial
precludes his belated effort to argue that it was erroneously
excluded. A.R.E. 102(a)(2); Patterson v. State, 689 P.2d 146,
150 (Alaska App. 1984) (holding that defendant's failure to offer
proof resulted in his inability to "realistically claim error on
appeal"); Hohman v. State, 669 P.2d 1316, 1325 (Alaska App.
1983).
McDonald raises a similar, but more specific, claim
with respect to the cross-examination of Ruble -- Jamin's
investigator. On direct examination, Ruble was asked if he had
heard Palmer's interview with McDonald on the night of
Henderson's disappearance. Ruble stated that he had heard the
interview; Ruble testified that McDonald acknowledged meeting
Henderson on the night of her disappearance. On cross-
examination, McDonald's counsel sought to ask Ruble if he had
heard McDonald tell Palmer that he (McDonald) and Henderson had
met to conduct a drug transaction. McDonald argued that the rule
of completeness, A.R.E. 106, required the admission of this
evidence so that the jury would not be left with the
misimpression that McDonald had admitted culpability for
Henderson's disappearance.
The trial court found the rule of completeness
inapplicable and excluded the evidence as inadmissible hearsay.
McDonald contends that the trial court erred in ruling that
A.R.E. 106 did not require the admission of this 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.
Ruble's testimony on direct examination did not suggest
that McDonald had admitted abducting Henderson or otherwise
mislead the jury as to the nature or context of McDonald's
statement to Palmer; the statement, as related by Ruble, needed
no clarification. Accordingly, A.R.E. 106 did not justify
admission of the disputed evidence:
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.
D'Antorio v. State, 837 P.2d 727, 736 n.3 (Alaska App. 1992)
(quoting Stoneking v. State, 800 P.2d 949, 951-52 (Alaska App.
1990) (citations omitted)).
Moreover, the trial court did not err in finding that
the proposed line of inquiry called for hearsay. The trial court
could properly conclude that the rather transparent purpose for
offering evidence of McDonald's statement that he met Henderson
for a drug deal was to prove the truth of the fact asserted
therein: that this had in fact been McDonald's purpose for
meeting Henderson. The evidence is inadmissible for this
purpose. Stumpf v. State, 749 P.2d 880, 899 (Alaska App. 1988).
6. Evidence of Kerwin's Acquittal
Kerwin testified as a prosecution witness at the second
trial, after having been acquitted at the first. On direct
examination, the prosecutor asked Kerwin if he had seen witness
statements and police reports about the case. Kerwin replied
that he had. Before cross-examining Kerwin, McDonald requested
permission to establish the reason for Kerwin's familiarity with
the reports and witness statements, arguing that the prosecutor
had left the jury with the impression that, as McDonald's friend,
Kerwin had improperly received access to the reports through
McDonald and had tailored his testimony to conform to them.
McDonald specifically asked to be allowed to establish
a reasonable alternative explanation for Kerwin's knowledge: that
Kerwin had been charged and thus had access to the police reports
and witness statements. McDonald also requested that the jury be
instructed that there were no charges currently pending against
Kerwin and that the jury should "not infer anything from the fact
that there were charges against him."
The trial court agreed, but only after warning McDonald
that "it's a very dangerous inference that you want to raise
frankly by going into the trial."
On cross-examination, McDonald elicited that Kerwin had
been charged and that his knowledge of the reports resulted from
his "own personal experience." The trial court instructed the
jury that "[t]he outcome of any charges against Mr. Kerwin is
really irrelevant to any of your responsibilities in this case .
. . you won't speculate upon that or concern yourself with it or
discuss it in any way, now or during your deliberations."
McDonald also elicited that Kerwin had been offered complete
immunity from any prosecution except perjury. Kerwin stated that
he had rejected the offer and that, afterward, the state had
withdrawn it.
On appeal, McDonald claims that this testimony left the
jury with an "improper impression that Kerwin's charges had not
been resolved" and a misleading impression of Kerwin's guilt.
McDonald claims the testimony was especially prejudicial to him
because the prosecutor told the jury that Kerwin was involved in
Henderson's death and linked McDonald to the crime because of his
friendship with Kerwin. McDonald concludes that the court should
either have precluded inquiry concerning Kerwin's charges or
should have allowed the jury to hear that Kerwin had been
acquitted.
We find no merit to this argument. The inquiry into
Kerwin's charges was admitted at McDonald's express request: to
meet his concern that the jury might have thought that Kerwin
tailored his testimony to benefit McDonald. The court allowed
McDonald to develop the issue only after it warned him of its
inherent danger. McDonald thereafter made a tactical decision to
elicit the fact that Kerwin had been charged. McDonald never
requested the alternative relief he now asserts should have been
offered: to disclose that Kerwin had been acquitted. At
McDonald's request, the trial court told the jury not to
speculate on the disposition of the charges against Kerwin.
Any error that occurred in connection with this issue
was plainly invited; we decline to consider McDonald's argument.
Barrett v. State, 772 P.2d 559, 568 n.10 (Alaska App. 1989). The
trial court did not err in excluding evidence of Kerwin's
acquittal.
7. Judgment of Acquittal
a. Sufficiency of Kidnapping Evidence
McDonald argues that there was no evidence from which
the jury could find the existence of the element of "restraint"
required for kidnapping.9 He claims that the evidence indicated
that Henderson's contact with him was voluntary. Alaska Statute
11.41.300 provides, in relevant part:
Kidnapping. (a) A person commits the
crime of kidnapping if
(1) the person restrains another with
intent to
. . . .
(C) inflict physical injury upon or
sexually assault the restrained person or
place the restrained person or a third person
in apprehension that any person will be
subjected to serious physical injury or
sexual assault;
. . . .
(E) facilitate the commission of a
felony or flight after commission of a
felony[.]
The word "restrain" is defined as meaning:
to restrict a person's movements unlawfully
and without consent, so as to interfere
substantially with the person's liberty by
moving the person from one place to another
or by confining the person either in the
place where the restriction commences or in a
place to which the person has been moved; a
restraint is "without consent" if it is
accomplished
. . . .
(B) by force, threat, or deception.
AS 11.41.370(3)(B).
In determining the sufficiency of the evidence to
support a conviction, this court evaluates the evidence and the
inferences therefrom in the light most favorable to the state.
Bush v. State, 397 P.2d 616, 618 (Alaska 1964); Alam v. State,
776 P.2d 345, 347 (Alaska App. 1989). The evidence is sufficient
if it supports "a conclusion by a reasonable mind that there was
no reasonable doubt about the defendant's guilt." Alam, 776 P.2d
at 347; Ratliff v. State, 798 P.2d 1288, 1290 (Alaska App. 1990).
The evidence, viewed in the light most favorable to the
state, permits the conclusion that McDonald restrained Henderson
through force, threat and deception. Even viewing the evidence
favorably to McDonald -- ignoring any inferences arising from the
rather vast body of circumstantial evidence bearing on the events
that occurred after Henderson entered McDonald's van -- and even
accepting McDonald's argument that Henderson "voluntarily" met
him at the cannery and entered his van, the jury could readily
have concluded that McDonald had secured Henderson's presence in
the van through deception -- by luring her with false promises of
information concerning the child custody dispute -- thereby
committing an act of restraint. AS 11.41.370(3)(B). The trial
court did not err in finding sufficient evidence of restraint.
b. Sufficiency of Murder Evidence
McDonald claims that his conviction of murder violated
the corpus delicti rule because the state presented no evidence
to prove the fact of Henderson's death or that her death, if it
occurred, was caused by criminal agency. McDonald misunderstands
the corpus delicti rule. His argument suggests that the rule
applies whenever the state seeks to prove murder through
circumstantial evidence.
In fact, the corpus delicti rule applies only when the
state relies primarily on a defendant's confession to establish
guilt: "The usual statement [of the rule] is to the effect that
there must be proof aliunde of the corpus delicti before an extra-
judicial confession may be admitted in evidence." Rollin M.
Perkins, The Corpus Delicti of Murder, 48 Va. L. Rev. 173, 179
(March 1962).
As the Alaska Supreme Court stated in Armstrong v.
State, 502 P.2d 440, 447 (Alaska 1972), the corpus delicti rule
provides "that a criminal conviction must rest on firmer ground
than the uncorroborated confession or admission of an accused.
To avoid convicting a person solely out of his own admissions,
the law requires, for a case to be submissible to the trier of
fact, additional independent evidence." See also Castillo v.
State, 614 P.2d 756, 758 (Alaska 1980).
Furthermore, even when the state's case rests upon a
defendant's confession and the corpus delicti rule applies, that
rule does not require criminal agency to be proven by direct
evidence; either circumstantial or direct evidence will suffice
if its persuasive force is sufficiently corroborative of the
defendant's confession. Castillo, 614 P.2d at 758-59.
Corpus delicti is simply irrelevant here. The state
did not seek to establish McDonald's guilt by relying primarily
on his confession. In fact, McDonald did not confess. The
essence of McDonald's complaint is that murder cannot be proven
by circumstantial evidence alone or, in any event, that the
circumstantial evidence here was insufficient to convict him of
murder. The law, however, recognizes no categorical distinction
between direct and circumstantial evidence. Des Jardins v.
State, 551 P.2d 181, 184-85 (Alaska 1976); Willett v. State, 836
P.2d 955, 957 (Alaska App. 1992).
Nor was the evidence of guilt in this case -- although
largely circumstantial -- too sparse to support McDonald's murder
conviction. Reviewing the evidence and the inferences drawn
therefrom in the light most favorable to the state, we conclude
that sufficient evidence was presented to allow fairminded
persons to reasonably differ on whether guilt has been
established beyond a reasonable doubt.
McDonald's motions for judgment of acquittal were
properly denied.
8. Jury Instructions
McDonald challenges the trial court's refusal to give
two jury instructions that he proposed: Proposed Instruction No.
15, which addressed the impact of circumstantial evidence on a
jury's determination of guilt, and Proposed Instruction No. 16,
which clarified the relationship between circumstantial evidence
and specific intent.
McDonald also contends that the trial court erred in
giving Instruction 32, dealing with intent, and Instruction 24,
an instruction addressing the elements of murder. He did not
object to these instructions at trial. McDonald lastly asserts
that the instructions as a whole were confusing and
unconstitutional. McDonald did not raise this argument below.
The decision whether to give a requested jury
instruction is committed to the trial court's discretion.
Buchanan v. State, 561 P.2d 1197, 1207 (Alaska 1977); Lee v.
State, 760 P.2d 1039, 1041 (Alaska App. 1988). McDonald's
challenge to the trial court's decision will succeed only if the
trial court abused its discretion. Id. The jury instruction
issues that McDonald raises for the first time on appeal are
reviewable only for plain error. Wilson v. State, 670 P.2d 1149,
1152-53 (Alaska App. 1983).
a. McDonald's Proposed Instructions
McDonald's Proposed Instruction No. 15 stated that
"[e]ach fact which is essential to complete a set of
circumstances necessary to prove the defendant's guilt must be
proved beyond a reasonable doubt." His Proposed Instruction No.
16 would have required the jury to adopt a "reasonable inference
pointing to innocent intent over a reasonable inference pointing
to guilty intent."
Both of McDonald's instructions are based on the
mistaken premise that, to base a verdict of guilt on
circumstantial evidence, the jury must be able to find that the
evidence rules out any conclusion consistent with innocence and
is consistent only with guilt. This theory of circumstantial
evidence was abandoned in Allen v. State, 420 P.2d 465 (Alaska
1966), and, since Allen, has been repeatedly rejected. See,
e.g., Jacobson v. State, 551 P.2d 935, 939-40 (Alaska 1976). As
we have already indicated, Alaska law draws no distinction
between circumstantial and direct evidence.
McDonald does not contend that the reasonable doubt
instructions actually given by the court were improper. His
proposed instructions would have misinformed the jury as to
applicable law. We conclude that the trial court did not abuse
its discretion in rejecting McDonald's proposed instructions.
b. Instruction No. 32
McDonald argues that the language of Instruction No.
32, which told the jury that "[i]n determining issues of intent,
the jury is entitled to consider any statements made, and acts
done or omitted by an accused, and all facts and circumstances in
evidence . . . ," allowed the jury "to engage in the
impermissible inference that it could consider Mr. McDonald's
failure to testify or to make a full statement to the police . .
. in determining intent, as distinct from determining guilt."
McDonald's argument assumes a strained and unreasonable
interpretation of the challenged instruction. On its face, the
instruction merely apprised the jury that circumstantial evidence
may be enough to find intent. To be misled, the jury would have
had to conclude that McDonald's failure to testify amounted to an
"act done or omitted by an accused," and so, could be considered.
Yet the trial court expressly admonished the jury, in both
Instruction No. 3 and Instruction No. 14, that it should not draw
any inference "of any kind" from the defendant's decision not to
testify. Reading the instructions as a whole, as the jury was
expressly told to do, we conclude that Instruction 32 did not
unconstitutionally draw attention to McDonald's failure to
testify.
McDonald also believes that, by instructing the jury
that it was entitled to consider "all the facts and circumstances
in evidence," Instruction No. 32 might have led jurors to
consider evidence admissible only against Ibach in its
determination of McDonald's intent. Although McDonald
acknowledges that the jury was specifically reminded in a
separate instruction "that some statements were admissible only
as to Ibach," McDonald argues that the jury might have
interpreted this instruction to apply only to its determination
of facts relating to conduct, and not to its consideration of
evidence bearing on the issue of McDonald's intent.
Again, however, the argument presumes a strained
interpretation of the instructions by the jury. Instruction No.
8 expressly told the jury that "you must not consider [evidence
admitted against one defendant and not another] as against the
other defendant." Nothing in this instruction suggested in any
way that it was restricted to the jury's determination of the
defendants' conduct as opposed to their intent. These
instructions precluded the jury from adopting McDonald's strained
reading of Instruction 32. Whiteaker v. State, 808 P.2d 270, 277
(Alaska App. 1991) (stating "[j]urors are presumed to understand
and follow the jury instructions").
McDonald also argues that Instruction No. 32 was the
equivalent of an impermissible Mann10 instruction: one that
creates a presumption of intent based on conduct. He claims that
the instruction shifted the burden of proof to him by failing to
give the jury the option to disregard the defendant's acts and
omitting the "necessary clarification that such inferences must
be believed in conjunction with other facts that support the
inference."
In Gargan v. State, 805 P.2d 998, 1005 (Alaska App.
1991), we considered a similar argument regarding a functionally
identical instruction. We held that the instruction was proper
and not an abuse of discretion in a specific intent case. Id. at
1005-06; see also Calantas v. State, 608 P.2d 34, 36 (Alaska
1980). As in the present case, the instruction in Gargan
told the jury that they could infer that the
defendant intended the natural consequences
of his actions, they were not required to
make such a finding, and that the prosecution
maintained the burden of proof on the issue.
When taken together with all the other
instructions reiterating the prosecutor's
burden of proof, we are convinced that the
instruction was proper and there was no abuse
of discretion[.]
Gargan, 805 P.2d at 1005. We find Gargan controlling here.
In short, we find no plain error in the trial court's
use of Instruction No. 32.
c. Instruction No. 24
McDonald next challenges the language of Instruction
No. 24, which, as to the murder charge, informed the jury that
the state was required prove beyond a reasonable doubt that
McDonald "caused the death of Laura Henderson, solicited another
person to cause her death, or aided or abetted another in
planning or committing the acts causing the death of Laura
Henderson." McDonald contends that this language might have
deprived him of jury unanimity, because some jurors might have
concluded that he aided or abetted Henderson's murder, while
others might have concluded that he committed the murder as a
principal.
However, a jury is not required to be unanimous as to
whether a defendant acted as a principal or as an accomplice.
Miller v. State, 866 P.2d 130, 137 (Alaska App. 1994); Totemoff
v. State, 866 P.2d 125, 129 (Alaska App. 1993). McDonald was not
deprived of his right to a unanimous jury verdict. We find no
plain error.
d. Cumulative Error in Jury Instructions
McDonald also contends that the jury instructions as a
whole were unconstitutional because they were "so inconsistent
and confusing . . . that a reasonable juror would not have
considered the record as a whole." He argues that the jury
instructions were self-contradictory because they simultaneously
told the jury to consider some evidence only against certain
defendants and all of the evidence as to each defendant.
As we have noted, McDonald failed to express this
concern at the trial court level. Ironically his argument that
the instructions were collectively inconsistent and misleading is
based on a comparison of individual instructions out of context.
We have found no error in the individual instructions. We find
no plain error in the instructions as a whole.
9. Motions for New Trial
Shortly after McDonald was convicted for the kidnapping
and murder of Henderson, he moved for a new trial based on newly
discovered evidence. McDonald also sought a new trial based on
the claim that the police had destroyed exculpatory evidence,
thereby depriving him of his right to due process. After holding
several evidentiary hearings to consider McDonald's claims, the
trial court denied McDonald's new-trial motion. McDonald argues
that the trial court erred in denying his motion for a new trial.
a. Newly Discovered Evidence
(i) Standard of Review
We first consider McDonald's newly-discovered evidence
claim. The requisite criteria for securing a new trial based on
a claim of newly discovered evidence are as follows:
(1) It must appear from the motion that the
evidence relied on is, in fact, newly
discovered, i.e., discovered after the trial;
(2) the motion must allege facts from which
the court may infer diligence on the part of
the movant; (3) the evidence relied on must
not be merely cumulative or impeaching; (4)
must be material to the issues involved; and
(5) must be such as, on a new trial, would
probably produce an acquittal.
Salinas v. State, 373 P.2d 512, 514 (Alaska 1962) (quoting Pitts
v. United States, 263 F.2d 808, 810 (9th Cir. 1959)). It is the
trial judge's duty "to assess the credibility of the newly
discovered evidence and to decide the probable impact of that
evidence based on [the judge's] view of its credibility."
Gonzales v. State, 691 P.2d 285, 287 (Alaska App. 1984). The
trial court's denial of a new-trial motion is within its sound
discretion and will not be disturbed unless an abuse of
discretion is shown. Id. at 286. Denial of a motion for a new
trial constitutes an abuse of discretion only when it is "clearly
untenable or unreasonable." Id.
(ii) New Evidence Pointing to McLaughlin
McDonald based his claim of newly discovered evidence
on information that, in his estimation, indicated that a Kodiak
drug dealer named McLaughlin,11 had the motive and the opportunity
to kill Henderson. Although McDonald called numerous witnesses
to testify at the evidentiary hearings, only four were central to
his primary claim of newly discovered evidence: Guy Carroll,
Michael Putnam, Marvin Newland, and George Lee.
The first of these witnesses, Guy Carroll, testified
that approximately six months before Henderson's disappearance, a
Kodiak drug dealer, Peter Bail, asked if Carroll was interested
in making some money. When Carroll said yes, Bail dialed the
telephone and handed it to Carroll. The speaker, known to
Carroll only as "Jack," offered Carroll $25,000-30,000 to kill a
woman. Carroll testified that he later told his friend Michael
Putnam about "Jack's" offer. According to Carroll, Putnam had
already heard that someone wanted a woman killed. Carroll
testified that Putnam told him the woman had to be killed because
she was getting ready to inform on some people.
Carroll further claimed that six months later -- after
Henderson disappeared -- he was with Putnam when Putnam noticed
Henderson's picture in the paper. According to Carroll, Putnam
commented that Henderson was the one "we were approached on."
Carroll took this comment to mean that Henderson was the person
"Jack" had wanted killed.
Carroll also testified that he first told the police
about his conversation with "Jack" around the time that the grand
jury's investigation of McDonald was in progress. Although
Carroll apparently had not known who "Jack" was when he spoke
with the police, he testified at the evidentiary hearing that he
had since heard Ibach's voice and that Ibach was not the "Jack"
on the other end of the phone. He testified that he now believes
that the voice belonged to a Kodiak drug dealer named McLaughlin.
Carroll added that Putnam must have learned about his statements
to the police, because, shortly thereafter, Putnam became angry
and assaulted him, evidently for going to the police.
Michael Putnam, another witness McDonald relied on in
support of his motion for a new trial, arguably corroborated
Carroll's testimony in minor respects, but flatly contradicted it
in most. Putnam swore that Carroll had never told him about any
contract to kill a woman. He testified that he never saw
Henderson's picture in the paper. Although Putnam did admit that
he had gotten into a fight with Carroll, he insisted that the
fight occurred because Carroll was "going around bragging that he
did some murder . . . and he didn't know anything about anything,
other than what I'd told him." Putnam acknowledged being
approached in October of 1985 about a contract killing, but,
according to Putnam, the man who approached him was James Kerwin
-- the same James Kerwin who was originally charged with McDonald
and Ibach for abducting and murdering Henderson. Putnam
explained that Kerwin had offered him $40,000 to kill somebody;
Kerwin did not say if the intended victim was a man or a woman,
or who wanted the person killed.
The third witness supporting McDonald's newly-
discovered evidence theory was Marvin Newland. The sole
relevance of Newland's testimony was to support Carroll's claim
that he had been assaulted by Putnam for discussing his knowledge
of Henderson's disappearance with the police. Newland, however,
had only observed a fight involving the two men. He did not know
why Putnam had fought with Carroll; he speculated that it could
have been either because Carroll had told the police about
Henderson or because Carroll had told the police about a burglary
Carroll and Putnam had committed.
George Lee, an acquaintance of McDonald, was the fourth
witness ostensibly supporting the new-trial motion. Lee was
evidently called because McDonald believed that Lee could
implicate McLaughlin in Henderson's disappearance. But Lee's
testimony fell somewhat short of the mark. Lee testified that he
had attended a party at McLaughlin's house sometime after
McDonald was convicted for Henderson's kidnapping and murder.
Lee recalled that, during a discussion about Henderson's
disappearance, McLaughlin told him, "The bitch knew too much
[about his drug business] and had to be shut up." However,
according to Lee, McLaughlin also told Lee that he (McLaughlin)
would not want "to get brought down over someone else's
[domestic] problem."
McDonald argues that the testimony of these four
witnesses warranted a new trial because, if it had been presented
at trial, it might have led to his acquittal. After considering
the totality of the evidence presented at the post-trial
hearings, however, the trial court found that "none of the
evidence standing alone or considered cumulatively, would likely
produce an acquittal."
Although there is sound basis in the record to suggest
the contrary, we assume for purposes of this decision that the
disputed evidence qualified as "newly discovered." Our review of
the record nonetheless convinces us that the trial court's
decision was neither "clearly untenable [n]or unreasonable" in
its finding that the inconclusive and mutually contradictory
testimony of these witnesses would not have been likely to
produce an acquittal. Gonzales v. State, 691 P.2d 285, 286
(Alaska App. 1984). Accordingly, we conclude that the trial
court did not abuse its discretion in refusing to find that a new
trial was warranted on the ground of newly discovered evidence.
Id. at 286-87.
(iii) New Evidence Pointing to Police Coverup
McDonald also raises a related, but slightly different
theory to support his contention that a new trial was necessary
because of newly discovered evidence. McDonald contends that the
evidence presented at the hearings below indicated that the
police had actively suppressed evidence favorable to the defense,
including much of the newly discovered evidence that derived from
the witnesses discussed above. McDonald maintains that if this
evidence of a police coverup were presented at a new trial, it
might result in his acquittal.
At the evidentiary hearing, Newland testified that
Kodiak Police Corporal John Palmer tape recorded the statement
that Newland had given to the police. Carroll also testified
that two of his statements to the police were tape recorded: one
by Kodiak Police Officer William Rhodes and one by Kodiak Police
Officer Barry Paris. McDonald also presented Wayne Arndt's
testimony to support his coverup theory. Arndt, a commercial
fisher, claimed that he told the Alaska State Troopers he had
discovered a female's body in Buskin Bay five or six months after
Henderson's disappearance.12 McDonald maintained that he had not
been provided with any of the recorded interviews and had not
been informed of Arndt's report to the Alaska State Troopers.
The testimony of the state's post-trial witnesses,
however, tended to contradict Newland's and Carroll's claims. At
the time of the hearings, the Kodiak Police Department had no
tape recordings of interviews with either Newland or Carroll and
the department's files contained nothing to indicate that such
recordings had been made. Palmer had no recollection of taking a
statement from Newland, let alone tape recording one. Rhodes
recalled his conversation with Carroll, but testified that it had
not been tape recorded. Paris acknowledged that he had recorded
one interview with Carroll early on in the investigation; he said
that he had kept the tape in his desk until he left the Kodiak
Police Department in August of 1989 (over two years after
McDonald's convictions for kidnapping and murdering Henderson).
Although Paris did not know what had happened to the tape, the
state established that a written summary of Paris' interview with
Carroll had been provided to the defense prior to trial; no
pretrial request for further discovery materials in connection
with Carroll, or for a recording of his interview, had been made
by the defense. With respect to Arndt, the Alaska State Troopers
searched their files, but could find no record of a report.
McDonald concludes that the absence of Newland's and
Carroll's tape-recorded statements and the fact that no record of
Arndt's citizen report was found by the troopers supports his
theory that police investigators purposely suppressed exculpatory
evidence. The trial court found, however, that Newland was not
credible and that his testimony about being tape recorded was
"improbable." The court also did not believe that Carroll's
conversation with Rhodes had been tape recorded. Although the
court found that Carroll's statement to Paris had probably been
recorded, it further found that the "negligent failure" to
provide the taped statement was harmless, as the written summary
given to the defense was "reasonably accurate." Finally, the
court found that Arndt was "not a credible witness" and that it
was unlikely that a formal statement had been taken from him.
Based on these findings, the trial court concluded that
McDonald's theory of a police coverup was meritless. The trial
court's findings as to the credibility of McDonald's coverup
witnesses are not clearly erroneous. Evidence of the alleged
police coverup was conjectural, at best, and the substantive
value of the evidence purportedly "covered up" was of minor and
tangential significance. Under the circumstances, the trial
court could readily find that, if presented to the jury at a new
trial, the coverup evidence would not have been likely to produce
an acquittal; the trial court did not abuse its discretion in
denying McDonald's motion for a new trial based on this evidence.
Gonzales, 691 P.2d at 287.
b. Dismissal: Destruction of Exculpatory Evidence
Relying on the same evidence that he used in connection
with his theory of a police coverup, McDonald asserted a separate
due process argument to support his motion for a new trial.
McDonald contended that destruction by the police of Carroll's
and Newland's taped statements and Arndt's citizen report
amounted to a denial of due process and warranted a new trial.
Our conclusion that the trial court was not clearly
erroneous in discrediting most of McDonald's police coverup
evidence disposes of McDonald's due process theory, as well.13 In
any event, "[d]estruction of evidence violates due process only
if the evidence `might have led the jury to entertain a
reasonable doubt about the defendant's guilt.'" Williams v.
State, 629 P.2d 54, 64 (Alaska 1981) (quoting Wyrick v. State,
590 P.2d 46, 46 n.1 (Alaska 1979)). Here, as we have noted
above, the disputed evidence had minimal exculpatory value. Even
assuming, contrary to the trial court's findings, that Newland's
statement was tape recorded and both of Carroll's statements were
as well, there is simply no reason to suppose that this evidence
would have led the jury to entertain a reasonable doubt about
McDonald's guilt. Notably, McDonald makes no claim that
Carroll's, Newland's or Arndt's supposedly destroyed statements,
had they been preserved and disclosed, would have revealed
anything the witnesses could not have supplied themselves through
their testimony. Under the circumstances, it is far from clear
that McDonald lost any exculpatory evidence, even if his theory
of destruction were accepted at face value.
We find no error in the trial court's rejection of
McDonald's post-trial motions.
10. Cumulative Error
McDonald contends that the cumulative effect of the
trial court's errors requires the reversal of his conviction.
This court has found almost all of McDonald's claims of error to
be without merit. His claim of cumulative error is, therefore,
meritless as well. Drumbarger v. State, 716 P.2d 6, 16 (Alaska
App. 1986).
STATE'S PETITION FOR REVIEW
At the sentencing hearing, the trial court held that
Alaska's constitutional prohibition against double jeopardy
precluded the court from sentencing McDonald for his kidnapping
conviction. The trial court recognized that the kidnapping and
murder statutes protect "clearly different societal interests,"
but stated that, because the jury reached general verdicts on the
charges, "it is impossible to know exactly what specific facts
the jury found to support" each conviction. Under the
circumstances, the court concluded that McDonald's kidnapping
conviction merged with his conviction for murder in the first
degree. The court sentenced McDonald to the maximum term of
ninety-nine years for the murder, but declined to impose a
sentence on the kidnapping conviction. In reaching this
conclusion, the trial court made it clear that its ruling was
based on the peculiar circumstances of McDonald's case:
If the evidence were to point that Ms.
Henderson had been transported to some
location, anywhere, and then there was
evidence, evidence I could point to that at
that point she was taken from the van and
killed, this would be an entirely different
case and what I did here today would be
entirely different.
In its petition for review the state claims that the
trial court erred in refusing to sentence McDonald for
kidnapping. The state argues -- as the trial court recognized --
that kidnapping and murder ordinarily involve different conduct,
culpable mental states, and societal interests. The state argues
that the trial court's view of the evidence implies that the
state did not prove both offenses beyond a reasonable doubt. In
addition, the state argues that it is reasonable to infer from
the evidence that Henderson was not killed in the van because
there was very little human blood found within the van and the
only evidence of struggle was the broken window.
Under AS 11.41.300(a)(1)(C), kidnapping occurs when a
"person restrains another with intent to . . . inflict physical
injury[.]" In Alam v. State, 776 P.2d 345, 349 (Alaska App.
1989), this court held that the evidence of restraint necessary
to establish kidnapping must go beyond that which is incidental
to the underlying offense. See also Commentary and Sectional
Analysis for the 1980 Amendments to Alaska's Revised Criminal
Code, Senate Journal Supp. No. 44 at 5-6, 1980 Senate Journal
(movements that are merely incidental to the commission of
another crime do not fall within AS 11.41.300). This court also
recognized that the jury must be informed that "restraint that
was merely incidental to a sexual or physical assault could not
constitute kidnapping or attempted kidnapping." Alam, 776 P.2d
at 350 n.4.
In the present case, which was tried before we decided
Alam, the jury was not instructed that, for purposes of the
kidnapping charge, it was required to find an act of restraint
going beyond any act incidental to Henderson's murder. The jury
instructions left open the possibility that the verdict of guilt
on the kidnapping charge was based on the jury's finding of an
act of restraint that was integral to the conduct on which it
based McDonald's conviction for murder.
The state argues that such a verdict was extremely
unlikely in McDonald's case, since strong circumstantial evidence
indicated that Henderson had been transported from the scene of
her meeting with McDonald at the cannery before she was killed.
As the trial court properly recognized, however, this argument
misses the point. Because the instructions actually given to the
jury left open the possibility of a kidnapping verdict based on
restraint incidental to acts involved in Henderson's murder and
because the jury rendered general verdicts, it is impossible to
determine with reasonable certainty the conduct upon which the
jury based its verdict. As we have previously recognized,
conjecture based on the relative strength of competing theories
of guilt can be no substitute for certainty when the double
jeopardy clause is implicated. Any ambiguity must be resolved in
favor of the accused. Clifton v. State, 758 P.2d 1279, 1285
(Alaska App. 1988); Horton v. State, 758 P.2d 628, 632 (Alaska
App. 1988).
Here, the trial court properly recognized the potential
violation of McDonald's double jeopardy rights and declined to
impose a sentence for kidnapping. The trial court did not err in
so deciding.14
CONCLUSION
The judgment of conviction is AFFIRMED.
_______________________________
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1. By the time the gun that McDonald had given Baldwin was
shown to Kostal, McDonald's first trial had already concluded.
Thus, Kostal's testimony about recognizing the gun McDonald gave
Baldwin was only presented at McDonald's second trial.
2. In a related argument, McDonald contends that the grand
jury was "tainted" because grand juror Kevin Owen expressed his
opinion about the defendants' guilt in the presence of other
grand jurors. Owen was excused; the district attorney admonished
remaining grand jurors that Owen's statement was not evidence and
should be disregarded. McDonald has failed to show prejudice.
McDonald also believes that his indictment should be dismissed
because one grand juror did not understand the English language.
However, this grand juror was able to converse appropriately with
the prosecutor and stated that she would ask questions if she
became confused. Again, we find that McDonald has made no
showing of prejudice.
3. In the portion of his brief dealing with grand jury
hearsay, McDonald also challenges the testimony of Kodiak Police
Officer Barry Paris, although the challenge is not technically
based on hearsay. Paris told the grand jury that Kerwin's boots
had field-tested positive for the presence of blood. McDonald
contends that this testimony was potentially misleading because
the field test did not establish that the blood was human (and,
indeed, subsequent laboratory testing established that it was
not). For this reason, McDonald asserts that the report of the
blood test should have been introduced to the grand jury instead
of Paris' testimony concerning the report. However, the grand
jury was well aware that Paris' field test had been inconclusive.
Paris expressly testified that the test did not distinguish
between animal and human blood. One grand juror even commented
that the blood on the boot could have been fish blood, since
"this is a fishing town, you know." Admission of Paris'
testimony was not improper.
4. Even as to Henderson's later statements to Jamin,
Ruble, and Munro, however, the testimony below indicated that her
excitement continued unabated. The Commentary to A.R.E. 803(2)
would support application of the excited utterance exception
under these circumstances, despite the passage of a significant
amount of time. In relevant part, the Commentary states that
"the standard of measurement is the duration of the state of
excitement . . . the character of the transaction or event will
largely determine the significance of the time factor." If
Henderson's later statements to Jamin, Ruble, and Munro did not
fall within the excited utterance exception, any error in their
admission would clearly be harmless beyond a reasonable doubt,
given the admissibility of the initial excited statements
Henderson made to her co-workers at the Center. Benefield v.
State, 559 P.2d 91, 96 (Alaska 1977).
5. Alaska Rule of Evidence 801(d)(2) does not create an
exception to the hearsay rule for admissions and confessions;
instead, it defines such declarations by a party-opponent as
nonhearsay when the opposing party seeks to use the admission or
confession against the declarant. As to any other person, the
statement is hearsay and is inadmissible unless there is some
other basis for finding it to be nonhearsay or unless an
exception to the hearsay rule independently applies.
6. The state argues that these statements were admissible
under the coconspirator exception to the hearsay rule because a
conspiracy existed between McDonald and Ibach. However, this
argument was never squarely raised before the trial court and
does not appear to have been the basis for admission by the
court. Under the circumstances, there is no reason to address
the coconspirator exception.
7. This is particularly true because other, independent
evidence established a direct link between McDonald and Ibach in
this case: the gun Ibach retrieved from Kostal a few weeks
before Henderson disappeared was the same gun McDonald had given
to Baldwin after he was questioned by the police, Ibach and
McDonald had been seen together before Henderson disappeared, and
McDonald admitted that he knew Ibach when Officer Palmer
questioned him the morning after Henderson had disappeared.
8. McDonald filed pretrial motions to sever his trial from
those of Ibach and Kerwin. The primary basis for these motions
was his claim that he would be prejudiced at a joint trial by the
admission of evidence against Ibach that would be inadmissible
against himself. The inadmissible evidence that was the subject
of McDonald's severance motions consisted of the various hearsay
statements we have addressed in the text of this decision, as
well as the .357-caliber revolver that originated with Ibach and
was later given by McDonald to Baldwin. The trial court declined
to sever the cases and McDonald now argues that denial of
severance amounted to error. Our conclusion that the revolver
and the various hearsay statements were admissible at trial
disposes of McDonald's primary basis for requesting severance.
McDonald has also advanced severance arguments on
appeal that he did not raise below. He contends that severance
was justified at the first trial to avoid prejudice to him
stemming from the preclusion of testimony concerning Ibach's
description of the contract killer. McDonald's theory is that
the reference to a contract killer who resembled Kerwin would
have been favorable to him because it would have established that
he was not the contract killer Ibach had spoken with. The record
establishes, however, not only that McDonald failed to request
severance on this theory, but also that Ibach's apparent
description of Kerwin was excluded at trial on McDonald's own
motion. Because McDonald was instrumental in the suppression of
this evidence at trial, he can hardly claim, at this juncture,
that severance was necessary to allow its admission.
McDonald's second newly-raised severance argument
pertains to the redaction, at the second trial, of the statement
he made to Officer Palmer on the night of Henderson's abduction.
During his interview with Palmer, McDonald denied knowing
Henderson; then, when asked if he knew Laura Ibach, he responded,
"I know Jack, is that his wife?" After being told that Henderson
was Ibach's ex-wife, McDonald initially persisted in the claim
that he did not know Henderson. When Palmer eventually
confronted him with information that he and Henderson had been
seen together, however, McDonald admitted being with her. In
order to protect Ibach from possible prejudice, the trial court
precluded Palmer from mentioning McDonald's reference to knowing
Ibach. Palmer testified only that McDonald initially denied
knowing Henderson and then conceded that he did know her after he
was told they had been seen together. McDonald now claims that
the trial court "seriously altered the meaning" of his statements
to Palmer when it redacted his statement to eliminate his
apparent confusion as to whether Laura Henderson was Ibach's
wife. As we have already indicated, McDonald did not raise this
argument in requesting severance below. More significantly,
McDonald has failed to suggest how the disputed redaction could
conceivably have prejudiced him. The obvious prejudice inherent
in McDonald's statement to Palmer lay in the fact that he
admitted being with Henderson after having initially denied
knowing her at all. Full disclosure of the omitted information
could have done nothing to mitigate the damaging nature of
McDonald's admissions to Palmer. In short, since McDonald has
failed to show prejudice that could have justified severance, we
do not find plain error.
9. McDonald also argues that the kidnapping conviction
merged with his murder conviction. This is a separate issue; we
address it in connection with the state's petition for review.
10. Mann v. United States, 319 F.2d 404 (5th Cir. 1963).
11. Testimony at the evidentiary hearings on McDonald's
motion for a new trial referred to both a Michael McLaughlin and
a James McLaughlin. Apparently, Michael and James are brothers.
For the purposes of this appeal, we need not distinguish between
them.
12. The substance of Arndt's statements appears to have no
exculpatory value in and of itself. Arndt testified that in
October or November of 1986 he told the police that he had
discovered a bag with a body in it in the Buskin River area.
Arndt said he had seen what looked like a leg clothed in a pair
of Levis, a foot covered with a sock, and a female's tennis shoe.
Although McDonald contends that Arndt's testimony shows
that Henderson's "body may actually have been abandoned in a
totally different location than that on which the police and
prosecution based their case," it is clear that whatever Arndt
witnessed was in fact unrelated to Henderson's disappearance. By
October of 1986, Henderson's jeans and tennis shoes had already
washed up along the tideline in Monashka Bay and had been
positively identified. Accordingly, it appears to us that the
only relevance of Arndt's testimony is to support McDonald's
theory that the police investigators attempted to suppress
evidence that tended to exculpate McDonald and that the
suppression itself is newly discovered evidence.
13. The trial court apparently did find that Paris was
negligent in failing to preserve the interview of Carroll that he
had tape recorded and kept in his desk drawer until leaving the
Kodiak Police Department. McDonald argues that the destruction
of this evidence violated Alaska Criminal Rule 16 and that this
violation should also have served as a basis for awarding him a
new trial. This contention is meritless. When destruction of
evidence was not in bad faith or part of a deliberate attempt to
avoid production, sanctions will be imposed on the state only if
the defendant was prejudiced. See Putnam v. State, 629 P.2d 35,
43 (Alaska 1980). Here, the trial court expressly found that
"the failure to furnish the tape of Guy Carroll's statement had
[no] effect -- appreciable effect anyway -- on the defense, the
jury, or the outcome of the case." This finding is supported by
the record and is not clearly erroneous. Given the lack of
discernible prejudice, the trial court did not abuse its
discretion in declining to order a new trial as a sanction for
the alleged discovery violation.
14. As the state acknowledges in its brief, a finding of
merger not only precludes sentencing on the merged offense, but
also requires the conviction for the merged offense to be
vacated. See Allain v. State, 810 P.2d 1019, 1021 (Alaska App.
1991). Here, the trial court declined to sentence McDonald for
kidnapping but neglected to vacate the kidnapping conviction. On
remand, the judgment should be amended to reflect that McDonald's
kidnapping conviction has been vacated.
