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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Court of Appeals No. A-4466
Petitioner, ) Trial Court No. 3KN-91-1388
Cr
)
v. )
) O P I N I O N
RAYMOND L. NORMAN, )
)
Respondent. ) [No. 1352 - June 10, 1994]
________________________________)
Appeal from the Superior Court, Third
Judicial District, Kenai, Jonathan H. Link,
Judge.
Appearances: Cynthia L. Herren,
Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Charles E. Cole, Attorney General, Juneau,
for Petitioner. David B. Koch, Assistant
Public Defender, and John B. Salemi, Public
Defender, Anchorage, for Respondent.
Before: Bryner, Chief Judge, and Coats
and Mannheimer, Judges.
MANNHEIMER, Judge.
A Kenai grand jury indicted Raymond L. Norman for
fourth-degree misconduct involving a controlled substance
(possession of more than one ounce of marijuana with intent to
distribute), AS 11.71.040(a)(2). Shortly before Norman's arrest,
state troopers executed a search warrant for Norman's home. The
police found and seized 140 marijuana plants, marijuana growing
equipment (such as lights, potting soil, and fertilizer), and
$3400 in $100 bills.
Because the State believed that the $3400 in currency
was the fruit of drug sales, the State took the money to a bank,
exchanged the currency for a cashier's check, then turned the
cashier's check over to officials of the United States government
for forfeiture under 21 U.S.C. 881(h). Before doing this, the
State photocopied the bottom half of the face of each bill (so
that the serial number of the bill was displayed), apparently
intending to use these photocopies at Norman's trial as
substitutes for the actual currency.
Norman filed a pre-trial motion seeking return of the
thirty-four $100 bills; he claimed that the physical bills
themselves had evidentiary value. The State responded that any
request for inspection or return of the money should be addressed
to the federal government, the current custodian of the $100
bills.
Upon receiving the State's response, Norman asked the
superior court to hold the State in contempt for violating its
duty as bailee of the currency. As Norman correctly pointed out,
when the police execute a search warrant, any property they seize
is seized under the authority of the court. The police become
custodians of this property as agents of the court; they are not
at liberty to dispose of it unless they first obtain the court's
permission. Johnson v. Johnson, 849 P.2d 1361 (Alaska 1993).
Norman told the superior court that he had earned the
$3400, not through drug sales, but through working as a painter
and a fisherman. He argued that the bills themselves might bear
flecks of paint or fish scales that would corroborate his explana
tion of the source of this money. The State responded that the
presence of paint or fish scales on the currency would not
necessarily support Norman's explanation of the money (since he
might have sold marijuana to painters and fishermen).
Superior Court Judge Jonathan H. Link ruled that the
State had violated its fiduciary duty by relinquishing custody of
the bills and dispersing them so that they could not be
recovered. Because it was impossible to tell what evidence might
have been on the bills when they left the State's possession,
Judge Link concluded that the appropriate remedy was to dismiss
the case against Norman with prejudice.
The State petitioned this Court to review the superior
court's decision. We now reverse the superior court and
reinstate the prosecution against Norman.
The superior court correctly found that the State had
violated its fiduciary duty by relinquishing custody of the
thirty-four $100 bills. Johnson, supra. However, even if we
assume that the currency would have borne fish scales, paint
flecks, or other evidence that Norman came by this money legiti
mately, the superior court abused its discretion when it ordered
the case dismissed on account of the State's breach of duty.
When the government engages in misconduct that affects
a criminal prosecution, the defendant's remedy is generally
limited to curing whatever prejudice has been caused by the
government's misconduct. Thus, for example, when the government
has obtained evidence by unlawful means, a criminal defendant is
entitled to suppression of the evidence but not dismissal of the
charges. Green v. State, 857 P.2d 1197, 1201 (Alaska App. 1993).
Courts have adopted a stricter rule to govern cases in
which the government has intentionally destroyed or failed to
preserve evidence known to be material to the defendant's case.
Even though it may not be possible to accurately gauge the extent
of the prejudice to the defendant's case, the defendant is
entitled to dismissal of the charges if the missing evidence
could possibly have created a reasonable doubt concerning the
defendant's guilt. See Maloney v. State, 667 P.2d 1258, 1263
(Alaska App. 1983). However, when the government has destroyed
evidence through negligence, a less stringent rule is used: a
court should not dismiss the charges against the defendant unless
it affirmatively appears that the lost evidence would have
created a reasonable doubt concerning the defendant's guilt.
Abdulbaqui v. State, 728 P.2d 1211, 1218 (Alaska App. 1986).
Norman's case appears to present a situation somewhere
in between intentional and negligent destruction of evidence.
State agents had seized the currency from Norman, and they
clearly suspected that the currency was evidence relevant to the
prosecution against him. Despite this awareness, the government
exchanged the $100 bills for a cashier's check, placing the
currency into the flow of interstate banking commerce, allowing
it to be scattered and irretrievably dispersed. On the other
hand, the government photocopied each bill before they
relinquished it, apparently attempting to preserve a record of
what had been seized. Judge Link found that the State had acted
unreasonably when it relinquished physical custody of the
currency, but he also found that the State had not intentionally
tried to prejudice Norman's defense.
We need not decide whether the State's action should be
characterized as "intentional" or "negligent" destruction of
evidence because we find that, even under the stricter test
employed in cases of intentional destruction, the dispersed
currency could not have created a reasonable doubt concerning
Norman's guilt.
Norman claims that he has been harmed because his
possession of thirty-four $100 bills might be construed as
evidence that he was engaged in drug trafficking, and because he
has been deprived of the physical evidence that might have been
found on the bills themselves (evidence such as paint flecks or
fish scales) that would explain the origin of these $100 bills
and show that he had earned the money in legitimate endeavors.
The State responds that Norman has not been prejudiced because
the presence of paint flecks and fish scales on the bills might
prove only the identity of Norman's customers, not the manner in
which he earned the money. This, however, is not an answer to
Norman's contention; the significance of the paint flecks and
fish scales would be a matter for the jury to decide. We
therefore agree that Norman was prejudiced if there is a
possibility that the $100 bills bore the physical evidence he
suggests.
However, this prejudice does not support the superior
court's decision to dismiss the charge against Norman. Even
assuming that the $100 bills bore the paint flecks and fish
scales that Norman suggests, the State's scattering of this
evidence deprived Norman of only one thing: a fair opportunity to
explain his possession of nearly three dozen $100 bills. The
paint and fish scales would be of no discernible help to Norman
in explaining the 140 marijuana plants and growing equipment
found at his residence. Thus, even though the State wrongfully
prevented Norman from physically testing the currency for paint
and fish scales, favorable results from this testing would not
lead a jury to entertain a reasonable doubt concerning Norman's
guilt to the extent its verdict was based on the remaining
evidence. Compare the analogous facts presented in Catlett v.
State, 585 P.2d 553, 556-58 (Alaska 1978), and Torres v. State,
519 P.2d 788, 793-97 (Alaska 1974).
Thus, any remedy for the State's dispersal of the
currency must be limited to measures that redress Norman's loss
of ability to explain the presence of the currency. One possible
remedy would be suppression of the currency - preventing the
State from presenting evidence that thirty-four $100 bills were
found in Norman's residence. Another possible remedy would be to
give the jury a "destruction of evidence" instruction. This was
the remedy ordered by the supreme court in Thorne v. Department
of Public Safety, 774 P.2d 1326, 1331-32 (Alaska 1989), when the
government erased the videotape of a DWI suspect's sobriety
tests.
The choice of a proper remedy, given the circumstances,
is entrusted to the trial judge's discretion. Putnam v. State,
629 P.2d 35, 43-44 (Alaska 1980); Abdulbaqui, 728 P.2d at 1218.
We therefore leave it to the superior court to decide which of
these two suggested remedies, or any other, is appropriate in
this case. However, under the circumstances presented here, the
superior court abused its discretion when it ordered dismissal of
the charges against Norman.
The decision of the superior court is REVERSED. The
charge against Norman is reinstated, and this case is remanded to
the superior court for further proceedings on the indictment.
