NOTICE: This opinion is subject to formal
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THE COURT OF APPEALS OF THE STATE OF ALASKA
DENNIS R. FATHKE, )
) Court of Appeals No. A-6350
Appellant, ) Trial Court No. 3AN-95-778CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1571 - January 23, 1998]
______________________________)
Appeal from the Superior Court, Third Judicial
District, Anchorage, Karen L. Hunt, Judge.
Appearances: Paul E. Malin, Assistant Public
Defender, Barbara K. Brink, Acting Public Defender, Anchorage, for
Appellant. Kenneth M. Rosenstein, Assistant Attorney General,
Office of Special Prosecutions and Appeals, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, Mannheimer, Judge,
and Joannides, District Court Judge.
JOANNIDES, Judge.
Dennis R. Fathke was convicted of first-degree robbery,
AS 11.41.500, for robbing a Subway sandwich shop of approximately
eighty dollars and a meatball sandwich. Prior to trial, Fathke
moved to compel the production of the palm print of the employee who
handed the money and the sandwich bag to the robber. The trial
judge denied the motion. Fathke now appeals, contending that the
trial judge erred in denying his motion.
FACTS AND PROCEEDINGS
A Subway sandwich shop on Northern Lights Avenue was
robbed at gunpoint on the night of January 28, 1995. A man entered
the store and ordered a meatball sandwich. Amy Hanson, the crew
leader at the Subway shop that night, made the sandwich, put it in
a plastic bag, and rang up the purchase on the cash register. When
she turned back toward the counter, the man showed her the butt of
a gun sticking out of his pocket and demanded that Hanson open the
cash register. Hanson did as she was told, and gave the robber the
money that was in the register. The robber then left with both his
freshly-ordered meatball sandwich and the money from the register,
which added up to just under eighty dollars.
Hanson called 911 and described the man who had robbed the
store. Anchorage Police Officer Anthony Henry was sent to the shop.
Near the scene of the crime, Henry saw a man who partially matched
Hanson's description of the robber. The man identified himself as
Dennis Fathke; Henry conducted a pat-down search of Fathke and found
a .22 caliber starter pistol in Fathke's left jacket pocket; he
found no money on Fathke, except for some loose change.
Another officer took Hanson to the alley where Officer
Henry was holding Fathke, and Hanson was asked if she recognized
Fathke. Hanson identified Fathke as the man who had robbed the
Subway store earlier that night.
The police later found the meatball sandwich in its bag
near the scene of the robbery. The police lifted a partial palm
print from the sandwich bag. It did not match Fathke's palm print.
The police were unable to rule out the possibility that the palm
print belonged to Hanson as they did not take Hanson's palm print.
Fathke was indicted for first-degree robbery. Prior to
trial, Fathke asked the state to obtain Hanson's palm prints and to
compare them to the palm print on the plastic bag. The state did
not respond to Fathke's request. As a result, Fathke filed a
pretrial motion to compel Hanson to produce palm and fingerprints
for comparison with the print found on the sandwich bag. Fathke
argued that Hanson's print was potentially exculpatory because if
the palm print already established as not being his was not
Hanson's print either, a logical inference would be that the print
belonged to an unknown third person i.e., the actual robber. The
trial judge denied Fathke's motion without comment. A jury later
convicted Fathke.
Fathke appeals, claiming that Hanson's prints were
relevant trial evidence, and that the trial judge's refusal to
compel Hanson to produce these prints was reversible error because
it denied him the opportunity to present potentially exculpatory
evidence at trial. The state raises three alternative arguments in
response to this claim: (1) that the trial court had no authority
to compel Hansen to submit to fingerprinting; (2) that even if it
had this authority, its failure to exercise it did not constitute
an abuse of discretion; and (3) even if the court did abuse its
discretion, any error was harmless.
DISCUSSION
The trial court had the authority to issue a subpoena
compelling Hanson to produce palm and fingerprints.
Alaska Criminal Rule 17(c) provides:
A subpoena may . . . command the person to whom
it is directed to produce the books, papers,
documents or other objects designated therein.
The court on motion made promptly may suppress
or modify the subpoena if compliance would be
unreasonable or oppressive. The court may
direct that books, papers, documents or objects
designated in the subpoena be produced before
the court at a time prior to the trial or prior
to the time they are to be offered in evidence
and may, upon their production permit the
books, papers, documents or objects or portions
thereof to be inspected by the parties and
their attorneys.
The state asserts that Criminal Rule 17 authorizes a trial
court to issue subpoenas only to compel a person's appearance or to
produce documents or other objects in court but that nothing in the
rule suggests that the court has the authority to issue a subpoena
requiring a person to allow the taking of her fingerprints. This
argument seems based on the notion that a subpoena requiring the
production of fingerprints impermissibly compels the creation of
evidence, rather than merely compelling the production of an object.
This distinction is unpersuasive. Hanson's palm and fingerprints
can easily be viewed as objects in her possession; submitting to
fingerprinting is merely the means by which this object would be
made available for inspection, much as photocopying might be the
means by which a document could be made available.
A citizen's duty to cooperate in judicial proceedings
includes not only the duty to comply with a subpoena to testify or
to provide objects in one's control, but also the duty to provide
certain forms of nontestimonial physical evidence, such as
"submit[ting] to 'fingerprinting, photographing, or measurements,
. . . writ[ing] or speak[ing] for identification, . . . appear[ing]
in court, . . . stand[ing], . . . assum[ing] a stance, . . .
walk[ing], or . . . mak[ing] a particular gesture.'" United States
v. Euge, 444 U.S. 707, 713 (1980) (quoting Schmerber v. California,
384 U.S. 757, 764 (1966)).
A similar issue arose in a recent Eighth Circuit case,
United States v. Montgomery, 100 F.3d 1404 (8th Cir. 1996).
Montgomery was charged with possession of cocaine found in the
pocket of a shirt in his luggage. Id. at 1405. The state had
Montgomery try on the shirt. Montgomery requested that two other
men with access to the luggage also try on the shirt (the two men
had invoked their Fifth Amendment privilege when called to testify);
the trial court refused. Id. at 1406. The Eighth Circuit Court of
Appeals reversed Montgomery's conviction, holding that the Fifth
Amendment did not prevent compelling the two witnesses from trying
on the shirts in front of the jury, and that "[t]he district court
abused its discretion in failing to follow this long line of settled
authority" [Fn. 1] where, as here, the evidence was "material and
relevant." Id.
The state contends that the "nonconsensual fingerprinting
of a person is subject to the probable cause constraints of the
Fourth Amendment," and would therefore require a showing of probable
cause which cannot be shown here. The state is correct that
nonconsensual fingerprinting can constitute a search and seizure
within the meaning of the Fourth Amendment. See Hayes v. Florida,
470 U.S. 811, 813-14 (1985). However, the Fourth Amendment does not
place the same limitations on the production of evidence under
subpoena as it places on police investigations; normally, no
probable cause determination is necessary when the court subpoenas
evidence. See Dept. of Revenue v. Oliver, 636 P.2d 1156, 1165 and
n.19 (Alaska 1981); Oklahoma Press Publishing Co. v. Walling, 327
U.S. 186, 195, 208-09 (1946).
Additionally, the Alaska Criminal Rules belie the state's
argument that forcing a witness to be fingerprinted is an invasion
of privacy; the rules specifically authorize a court to order
persons to participate in certain non-testimonial identification
procedures, such as fingerprinting. See Alaska R. Crim. P. 16(c)-
(2)(iii).
In sum, we find that the trial court had, but failed to
exercise, the authority to compel Hanson to produce palm and
fingerprints. We now turn to whether this was an abuse of
discretion.
The refusal to compel the production of
Hanson's prints was an abuse of discretion.
Alaska Criminal Rule 17(c) authorizes a court to refuse
to issue a subpoena, or to limit the scope of a requested subpoena,
"if compliance would be unreasonable or oppressive." Alaska R.
Crim. P. 17(c). On appeal, the state makes three arguments why the
trial judge's refusal to order the taking of Hanson's prints was not
an abuse of discretion: (1) Even without Hanson's print, Fathke
could argue the police investigation was flawed for failing to print
Hanson, thus leaving open the possibility that the print belonged
to a third person; (2) even if the print on the bag was not
Hanson's, Fathke's argument is flawed because some innocent third
person could have touched the bag; and (3) forcing Hanson to be palm
and fingerprinted would have been unwarranted intrusion into her
privacy. These arguments are unconvincing.
The state's first argument is flawed because Fathke wanted
to show that the print actually belonged to a third person, not just
that the police investigation was flawed. Without proof that
another person's print was on the bag, Fathke's argument that some
unknown person touched the bag would be wholly speculative;
conversely, actual evidence that a third person had indeed touched
the bag would have given him an evidentiary basis for making this
argument before the jury. While it is true that Fathke might have
touched the bag but left no print, Fathke was not trying to secure
evidence capable of eliminating any possibility that he had touched
the bag; instead, he was merely seeking evidence establishing the
fact that some third person had touched it.
While it is true that another store employee or a patron
may have innocently touched the bag, this possibility appeared
remote under the facts [Fn. 2] and does not eliminate the
evidentiary value of a third person's palm print. A third person's
palm print would make it less probable that Fathke was the robber.
Therefore Fathke would have been unable to make this argument as
effectively without this print.
The state further argues that a subpoena requiring Hanson,
a witness, to provide her prints would have involved a very
significant intrusion into her privacy. We believe however that if
the court had established appropriate safeguards in the use and
dissemination of Hanson's prints, the intrusion on her privacy would
have been negligible when compared to society's interest in the
judicial process. "Fingerprinting involves none of the probing into
an individual's private life and thoughts that marks an
interrogation or search." Davis v. Mississippi, 394 U.S. 721, 727
(1969). With appropriate safeguards in place, the intrusion into
Hanson's privacy would have been minimal compared to the benefits
of obtaining her palm and fingerprints.
Based on the above factors, we find that the trial judge's
denial of Fathke's motion to compel prints was an abuse of
discretion. The prints were relevant and potentially exculpatory.
Securing these prints would not have been unduly oppressive or
unreasonably intrusive.
The error in denying Fathke's motion to compel
production of Hanson's prints was not clearly harmless error.
Because the trial judge's error in denying Fathke the
opportunity to secure Hanson's prints implicated his constitutional
right to compulsory process, we next examine whether it can safely
be said that this error was harmless beyond a reasonable doubt.
Chapman v. California, 386 U.S. 18, 24 (1967).
The state's evidence against Fathke was strong. Hanson
was within only a few feet of the robber, in a well-lit store
interior. Within minutes of the crime, Hanson was taken to the
alley where the police had detained Fathke. Fathke's facial
features were the same as the robber's, and but for the fact that
Fathke was wearing a cap and was no longer wearing a hood, "[h]e was
wearing the same clothes. . . . He had the same coat on with the
checkered pattern, the same blue pants on." The jacket was
apparently one that was quite unique: it had a distinctive logo on
its back, a checkered collar, and a discolored area on the shoulder.
Hanson testified at trial that the jacket taken from Fathke and made
a trial exhibit was the same jacket worn by the robber in all these
regards. While the police could not "make a positive match,"
Fathke's shoes nonetheless were of "the same length, the same width,
the same sole pattern, and the same fairly unique feature of wear
pattern" as footprints found outside the scene of the crime.
However, there were some missing pieces, uncertainties,
and contradictions in the state's case against Fathke. To begin
with, the stolen money was never found. Also, while the store's
video camera captured footage which, when enhanced, showed that the
robber's dark jacket had some sort of lighter emblem or image on its
back, much as Fathke's jacket did, the police "couldn't make a . . .
positive ID," and "couldn't say it was absolutely absolutely the
jacket[.]" Nor could the police make a positive identification of
the footprints they found near the scene of the crime. Officer
Henry testified that, "it was obvious to me that [Fathke] had been
drinking," and that, "I could smell it on him outside in the open
air"; Hanson, however, testified that the robber did not smell of
alcohol when in the store.
The state's strongest evidence against Fathke seems to be
Hanson's positive identification of Fathke by his clothes. While
she told Officer Sims that she was "100 percent sure on the
clothes," however, Hanson also testified that "it was hard to tell"
whether Fathke was the robber from his facial features alone, since
the robber had worn a hood in the store and Fathke's "hair was all
in the hood before." Furthermore, Hanson, who understood the
difference between an automatic and a revolver, identified the
robber's gun as an automatic; Fathke, however, was found with a
revolver. Hanson initially said the robber wore a gray jacket;
later she said it was dark blue, then black. Hanson never mentioned
the discoloration on the jacket when she called 911, despite the
fact that this was one of the most distinguishing features of the
jacket. At trial, she initially testified that she was only 85
percent certain that the defendant was the robber, but on the
following day she testified that she was 100 percent certain; when
asked whether her certainty had increased overnight, she said, "Yes,
it has. I've been thinking about it all night. I've been
remembering everything."
Under these circumstances, we cannot be sure that evidence
of a third person's print on the sandwich bag would not have altered
the jury's decision. We therefore REMAND this case to the superior
court so that Hanson's prints may be taken. Based upon the results
of the print comparison, the superior court should determine whether
the print evidence could have appreciably affected the jury's
verdict, thereby necessitating a new trial.
The superior court is hereby ordered to enter findings of
fact and conclusions of law based upon the new evidence. The
findings and conclusions should be transmitted to this court within
90 days of this order.
We retain jurisdiction of this appeal.

FOOTNOTES
Footnote 1:
The line of cases referred to as authority include Fisher v.
United States, 425 U.S. 391 (1976); Schmerber v. California, 384
U.S. 757 (1966); and Holt v. United States, 218 U.S. 245 (1910).
Footnote 2:
Hanson testified that Subway's plastic bags come stapled onto
a cardboard base in stacks of approximately fifty to a hundred, that
these stacks are situated near the cash register at the end of the
production line, that the bags would not be handled around the food
preparation area at all, and that the individual bags pull away
quite easily, one at a time.
In contrast to this rather concrete testimony suggesting
that it was unlikely the bag had been touched by other employees,
the part of Hanson's testimony that does suggest the possibility of
other employees touching the bag seems to be based almost entirely
on speculation. Hanson testified that "the cookies are right there
and the napkins are right there, and people can touch them when they
put -- they're reaching for cookies, people can touch them when
they're reaching for napkins." "People can just walk by and lean
against the counter and touch them." Even then, however, Hanson had
to concede that such people would likely touch only the top bag, or
"[m]aybe the bag underneath when they're ripping the top one away."
This testimony suggests that bags touched by wayward palm prints
would likely be used and gone within one or two sandwiches of being
touched. Hanson also testified that, while it was unlikely that
someone had taken the entire stack of bags out of the dispenser box
and touched them, "you just reach in and grab it, and your hand can
get on any one."
Charles J. McMichael, another Subway crew leader, also
testified. His testimony did suggest a greater possibility of
wayward prints on bags than Hanson's did. He suggested that because
the bags are inventoried on a weekly basis, which involves their
being counted by hand individually, and because the reams of bags
have to be transferred from the box to the countertop, it is
possible that an employee might touch the bags, even those within
a stack. He also testified that "the bags intend [sic] to get
messed up, so all of them -- we'll go through and we'll straighten
them out. That way they look nice on the line."
McMichael also testified, however, that this straightening
out would be done with fingers, not with the palm of ones hand, and
that while other employees might possibly conduct inventories
differently, he himself would feather through the bags with his
fingertips, "like you would with papers." He went on to agree with
the assertion that, when one person is both making the sandwich and
running the cash register, as Hanson did on the night of the
robbery, "in all likelihood, if we're going to find a print on the
bags not made by a customer, that it would be -- that we'd be
looking at that one person[.]"
 In the Court of Appeals of the State of Alaska
Dennis Fathke, )
) Court of Appeals No. A-06350
Appellant, )
v. ) Order
) Petition for Rehearing
State of Alaska, )
)
Appellee. ) Date of Order: 1/23/98
)
Trial Court Case # 3AN-95-00778CR
Before: Coats, Chief Judge, Mannheimer, Judge and Joannides, District Court Judge*
[Stewart, Judge, not participating].
Upon consideration of the State's petition for rehearing, filed on September 24, 1997 and
Fathke's response, filed on November 13, 1997,
It is Ordered:
(1) The Petition for Rehearing, is GRANTED.
(2) Opinion No. 1549 is WITHDRAWN and Opinion No. 1571 is issued in its
place on January 23, 1998. The revised opinion incorporates the following changes:
(3) The last sentence on page 1 is deleted.
(4) The subheading on page 9 is amended by inserting the word "clearly":
The error in denying Fathke's motion to compel production of
Hanson's prints was not clearly harmless error.
(5) The last sentence on page 11 is deleted and the following text is substituted
in its place:
We therefore REMAND this case to the superior court so that
Hanson's prints may be taken. Based upon the results of the print comparison, the superior court
should determine whether the print evidence could have appreciably affected the jury's verdict, thereby
necessitating a new trial.
________________________________________________________________________
* Sitting by assignment made under article IV, section 16 of the Alaska Constitution.
Court of Appeals
A-6350, Fathke v State
Page 2
The superior court is hereby ordered to enter findings of fact
and conclusions of law based upon the new evidence. The findings and conclusions should be
transmitted to this court within 90 days of this order.
We retain jurisdiction of this appeal.
Entered by the direction of the court.
Clerk of the Appellate Courts
Cheryl Jones, Deputy Clerk
cc: Court of Appeals Judges
Judge Hunt
Trial Court Appeals Clerk
Central Staff
West Publishing for Opinions (Opinion No. 1549, September 19, 1997)
Distribution:
Paul E. Malin
Asst Public Defender
900 West Fifth Avenue #200
Anchorage AK 99501
Kenneth Rosenstein
OSPA
310 K Street #308
Anchorage AK 99501
