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THE COURT OF APPEALS OF THE STATE OF ALASKA
BRENDA J. SINGLETON, )
) Court of Appeals No. A-5578
Appellant, ) Trial Court No. 3AN-S94-3296CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
) [No. 1475 - July 5, 1996]
Appellee. )
______________________________)
Appeal from the Superior Court, Anchorage,
Third Judicial District, James A. Hanson,
Judge.
Appearances: Ethan A. Berkowitz, Anchorage,
for Appellant. Cynthia L. Herren, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and Bruce
M. Botelho, Attorney General, Juneau, for
Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
Brenda J. Singleton was convicted by a jury of robbery in
the second degree, AS 11.41.510(a)(1). On appeal, she argues that
the trial court erred in allowing an unqualified person to serve as
a juror and that the state failed to preserve exculpatory evidence.
We affirm.
 Singleton and two codefendants, Dudley Fuqua, Jr., and
Tyree McCray, were jointly indicted and tried for robbing Elaine G.
Copeland. The robbery occurred outside Copeland's Anchorage
apartment building. Singleton, Fuqua, and McCray -- possibly
accompanied by two other people -- had driven to the building in a
white van, ostensibly to enable Singleton to get money that she
claimed Copeland owed her. An altercation between Singleton and
Copeland ensued, culminating in Singleton forcibly taking a jacket,
which had $201 cash in its pocket, from Copeland's person. After
Singleton took the jacket, she, Fuqua and McCray left the area in
the van.
The incident was immediately reported to the police by the
manager of Copeland's apartment building. A short time later, the
police found the van stopped on a nearby street, with Singleton,
Fuqua, McCray, and two or three other people present. Copeland and
a friend of her's who had witnessed the robbery were brought to the
scene and identified Singleton, Fuqua, and McCray. They were
arrested. Copeland and her friend evidently told the police that
the other individuals present at the arrest scene had not been
involved in the incident.
The state brought Singleton, Fuqua and McCray to trial on
robbery charges. During the jury selection process, prospective
juror Richard Porter disclosed that he had been convicted ten years
previously of "felony retail theft" for stealing 52 cartons of
cigarettes from a store in Chicago. Porter stated that he had
served seventeen days in jail for the offense and had received three
years' probation, which he had successfully completed. Because he
never received any formal notice that his civil rights had been
restored, Porter had not hunted or voted since his conviction.
Porter did not believe the conviction would affect his ability to
be fair and impartial.
All parties had the opportunity to question Porter about
his prior conviction and his fitness for jury service. All passed
him for cause, and none exercised a peremptory challenge.
For the first time on appeal, Singleton questions Porter's
qualifications to serve as a juror. Singleton cites AS 09.20.020
(2), which provides that "[a] person is disqualified from serving
as a juror if the person . . . (2) has been convicted of a felony
for which the person has not been unconditionally discharged[.]"
Singleton argues that, since Porter's civil rights had apparently
never been restored, he had not been "unconditionally discharged"
and therefore did not qualify for jury duty. Singleton insists
that, for this reason, the trial court was obligated to strike
Porter from the panel sua sponte. Singleton maintains that Porter's
inclusion on the panel violated her right to an impartial jury; she
further maintains that she was deprived of due process because she
was never personally informed of her right to challenge Porter for
cause and did not knowingly waive that right.
Strong authority supports the conclusion that Singleton
waived her argument on appeal by failing to exercise a challenge --
either for cause or peremptory -- after learning of Porter's
potential disability. See United States v. Boney, 977 F.2d 624,
632-34 (D.C. Cir. 1992); Sirotiak v. H.C. Price Co., 758 P.2d 1271,
1275 n.2 (Alaska 1988); Sharp v. State, 837 P.2d 718, 723 (Alaska
App. 1992). However, we need not decide the issue of waiver, for
here the record fails to substantiate Singleton's claim that Porter
was disqualified.
Singleton builds her argument for Porter's disqualifi-
cation on the premise that formal restoration of Porter's civil
rights -- such as the right to vote or to carry a firearm -- was a
prerequisite to Porter's being "unconditionally discharged" from his
prior felony conviction, as required under AS 09.20.020(a)(2).
However, the juror disqualification statute itself specifies that
the term "unconditional discharge has the meaning given in AS
12.55.185." AS 09.20.020(a)(2). Alaska Statutes 12.55.185 defines
the term "unconditional discharge" to mean "that a defendant is
released from all disability arising under a sentence, including
probation and parole[.]" This definition conditions renewed
eligibility for jury service upon release from all restrictions
directly imposed "under a sentence," but not from collateral
disabilities -- such as loss of firearms or voting privileges --
that flow from sources outside the judgment of conviction or
sentencing order. Singleton cites no authority to support a
departure from the apparent plain meaning of the statutory
definition.
Moreover, adopting Singleton's argument would yield
anomalous results. Alaska's voting laws illustrate the point.
Under AS 15.05.030(a), any person convicted of a felony involving
moral turpitude loses the right to vote "from the date of the
conviction through the date of the unconditional discharge of the
person." For purposes of this provision, the term "unconditional
discharge" is defined in AS 15.60.010(33) to mean "that a person is
released from all disability arising under a conviction and
sentence, including probation and parole[.]" This definition is
functionally identical to the definition of the same term set out
in AS 12.55.185(12), which AS 09.20.020(2) adopts for purposes of
determining juror qualification.
When viewed through the prism of the voting statutes, the
flaw in Singleton's argument becomes apparent. For if, as Singleton
argues, the right to vote must be restored as a prerequisite of
unconditional discharge, then a person's right to vote could never
be restored: under AS 15.05.030(a) a person who lost the right to
vote upon conviction of a felony would be entitled to have that
right restored only upon unconditional discharge, but unconditional
discharge could occur only upon restoration of the right to vote.
Singleton's definition of unconditional discharge would thus be
wholly circular and entirely self-defeating.
We conclude that the definition of "unconditional
discharge" set forth in AS 12.55.185 must be interpreted in
accordance with the statute's plain meaning. So interpreted,
unconditional discharge requires completion of any sentence of
imprisonment, discharge from parole or probation, and release from
any other restriction directly imposed as part of the judgment of
conviction. Restoration of collaterally affected rights or
privileges is not required. (EN1)
Applying this interpretation to Singleton's case, we
conclude that the record fails to support Singleton's claim that
juror Porter was disqualified from jury service under AS
09.20.020(2). Porter's testimony on voir dire indicated a prior
conviction for a felony involving moral turpitude. But according
to Porter, he had long ago been discharged after serving his
sentence and successfully completing his probation. The record
provides no reason to suspect that Porter had not been "released
from all disability arising under [the] sentence" in his case, and
so, no reason to conclude that he had not been "unconditionally
discharged." AS 09.20.020(2). Under these circumstances, the
status of Porter's voting or hunting rights was irrelevant to his
qualification as a juror in Singleton's case.
Singleton next claims that the state violated her right
to due process and her discovery rights under Criminal Rule 16 by
failing to preserve the names of the witnesses who were at the scene
when Singleton, Fuqua, and McCray were arrested. The argument is
meritless. At a pretrial discovery hearing on June 16, 1994,
Singleton's counsel mentioned that Singleton had not yet received
copies of notes made by the officers who arrested her. Counsel went
on to say: "The officers interviewed some people or at least spoke
to some people at the scene of the -- at the incident scene, and we
don't have the names of those people. We're hoping they would
appear in the officer notes." Superior Court Judge Elaine M.
Andrews ordered the notes produced by June 23.
Following this deadline, on July 1, 1994, Fuqua's attorney
moved to compel discovery of the names and addresses of the
interviewed witnesses. In an affidavit accompanying the motion,
Fuqua's attorney indicated that police notes disclosed by the
District Attorney's Office did not name the witnesses; the affidavit
also indicated that all existing police notes had apparently already
been transmitted by the police to the District Attorney's office.
Fuqua thus requested a hearing to determine "the reason for the
disappearance of the names and the appropriate sanction." The
record provides no indication that Singleton joined in Fuqua's
motion to compel.
Several days after Fuqua filed his motion to compel, Judge
Andrews denied it, concluding that all police notes had been
disclosed and that a failure to memorialize the names of bystanders
at the scene of the arrest would not amount to a discovery violation
or an impermissible failure to preserve evidence. In reaching this
conclusion, the judge emphasized that, in the absence of notes,
defense counsel's remedy was to interview the arresting officers:
Defense counsel is free to call the officers
and ask them to name the witnesses that they
claim to have been able to identify . . . .
There is no basis to claim a "disappearance" of
real evidence on the defense version of the
facts.
At trial, one of Singleton's arresting officers mentioned
that he had not taken notes of the names of bystanders at the arrest
scene but that he "knew one of the individuals." The other
arresting officer testified that he did not know of any previously
undisclosed witnesses to the alleged robbery; when asked about an
unidentified person at the arrest scene; the officer responded that
the police did not know if that person had been an eyewitness.
No further mention of the discovery issue was made by
Fuqua or Singleton. The record is silent as to whether Singleton
made any attempt to conduct pretrial interviews with the arresting
officers. Neither Singleton nor Fuqua claimed any prejudice at
trial.
Singleton fails to demonstrate any error by the trial
court. As we have recently held:
While officers have a duty to preserve
potentially exculpatory evidence actually
gathered during a criminal investigation, the
due process clause has never required officers
to undertake a state-of-the-art investigation
of all reported crimes. Officers investigating
a crime need not "track down every conceivable
investigative lead and seize every scintilla of
evidence regardless of its apparent importance
or lack of importance at the time, or run the
risk of denying a defendant due process or his
discovery rights." Nicholson v. State, 570
P.2d 1058, 1064 (Alaska 1977).
March v. State, 859 P.2d 714, 716 (Alaska App. 1993).
Here, officers at the scene of Singleton's arrest were
evidently informed that no one other than Singleton, Fuqua, and
McCray had been involved in the alleged robbery. The officers had
no obvious basis to believe that other individuals at the arrest
scene had "potentially exculpatory evidence." Id. If the other
individuals were merely bystanders at the scene of the arrest, there
is little reason to suppose that they had any material information
to offer -- exculpatory or inculpatory. If, on the other hand, the
individuals at the arrest scene had been companions of Singleton in
the van and had indeed witnessed the alleged robbery, their
identities would presumably have been known by, or readily available
to, Singleton without police assistance. Moreover, Singleton has
failed to establish any effort on her part to determine the
identities of potential witnesses through direct interview of her
arresting officers, as suggested by Judge Andrews. And finally, it
appears that Singleton failed even to join in Fuqua's motion to
compel disclosure of the bystanders' names.
Under the circumstances, we find no discovery or due
process violation.
The conviction is AFFIRMED.
ENDNOTES:
1. In this connection, it is worth noting that the Attorney
General has interpreted "unconditional discharge" in the context of
the voting rights statutes to require completion of probation or
parole, but not formal restoration of collaterally affected civil
rights. See 1985 Op. Att'y Gen. No. 103 (Alaska, Jan. 29, 1985).
