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State v. Andrews (01/30/2004) ap-1915
State v. Andrews (01/30/2004) ap-1915
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Court of Appeals No. A-
8020
Petitioner, ) Trial
Court No. 3NA-99-96 CR
)
v. )
) O P I N
I O N
CLINTON T. ANDREWS, et al., )
)
Respondents. ) [No.
1915 January 30, 2004]
)
Petition for Review from the District Court,
Third Judicial District, Naknek, Deborah
Burlinski, Magistrate.
Appearances: Kenneth J. Diemer, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho and Gregg D. Renkes,
Attorneys General, Juneau, for Petitioner.
Louis James Menendez, Juneau, for
Respondents.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
Based on Loran C readings, Clinton T. Andrews and nine
other commercial fishers were charged with fishing in closed
waters.1 The commercial fishers moved to suppress the Loran C
evidence. The district court agreed with the defendants and
excluded the Loran C evidence for two reasons. First, the
district court excluded the evidence because the State had not
created and preserved a printout of the Loran C readings.
Second, the district court excluded the Loran C evidence on
foundational grounds, finding that the State had not shown that
there was a maintenance program for the Loran C receivers or that
there was a training program for the Fish and Wildlife Protection
troopers who used Loran C. We granted the States petition for
review. For the reasons set out below, we reverse the decisions
of the district court.
Facts and proceedings
In 1999, Andrews and nine others2 were charged with
commercial fishing in closed waters. At the time the defendants
were charged, the boundary lines that separated closed from open
waters were defined by electronic signals received from Loran C
transmitters.3 Consequently, state Fish and Wildlife Protection
troopers and commercial fishers used Loran C receivers to
determine their vessels positions in relation to the boundary
lines. The troopers likewise used Loran C receivers to locate
the fishing vessels. (Troopers and commercial fishers now use
global positioning satellites. See 5 AAC 06.206 (2001).)
After the defendants were charged, they consolidated
their cases and moved to exclude the location readings provided
by the troopers Loran C receivers. The fishers argued that the
readings should be excluded because Loran C technology was not
scientifically reliable, and because the State had failed to
preserve any record of the Loran C readings on the receivers used
by the troopers.
An evidentiary hearing was held, but little of the
testimony concerned the investigation of any particular defendant
in this case. Rather, the hearing primarily addressed the
science underlying Loran C, and how troopers were using Loran C
in Bristol Bay to enforce fishing regulations.
After the hearing, Magistrate Deborah Burlinski granted
the defendants motion; she excluded the Loran C evidence because
the troopers had not created a printout of the Loran C readings
at the time they determined the location of the defendants
vessels. She also ruled that the State had not met the
foundational requirements to admit Loran C evidence because the
State had no program to ensure that the receivers were properly
maintained, or that the troopers were properly trained on how to
use the receivers. She found, however, that Loran C technology
was scientifically reliable.
When the State prosecutes a commercial
fishing violation based on a Loran C reading,
is the State required to preserve a
contemporaneous photograph or printout of the
Loran C reading?
The defendants argue that due process requires the
State to create a contemporaneous printout of Loran C readings.
Although Magistrate Burlinski recognized that we had rejected
this argument in Wamser v. State,4 she agreed with the defendants
and suppressed the Loran C readings. She did so because she
compared the Loran C receiver to a breath testing instrument, and
applied the legal rationale in Lauderdale v. State.5 In
Lauderdale, the supreme court excluded evidence of the defendants
breath test result on due process grounds because the State had
failed to preserve the breath sample, thus depriving the
defendant of his right to test the reliability of that evidence.6
But the Lauderdale decision was based on considerations
not present in Wamser or in this case. Lauderdale was arrested
for driving while intoxicated and was required to provide the
State with a breath sample, which was tested on the breathalyzer,
an instrument that the State controlled. The result of this test
was sufficient to support Lauderdales conviction for operating a
motor vehicle with a blood alcohol content above the legal
limit.7 The supreme court agreed with Lauderdale that a retest
of his breath sample could provide material evidence on the issue
of his guilt or innocence.8 Yet the breath sample and the only
available testing instrument were in the sole possession of the
State. By failing to preserve Lauderdales breath sample or offer
Lauderdale an equivalent method of checking the States reading,
the State destroyed the only direct evidence of the ultimate
question involved in Lauderdale that is, the alcoholic content
of Lauderdales blood.9 Destroying the only available evidence
precluded Lauderdale from challenging the reliability or
credibility of the results of the breathalyzer test.10 Because
the State had prevented Lauderdale from challenging the accuracy
of this evidence, the supreme court ruled that due process
required exclusion of the test results.
Loran C receivers differ significantly from state-
controlled breath test instruments. In a case based on Loran C
readings, the State does not prosecute a defendant with test
results generated from evidence that only the State possesses.
Instead, the case is supported by readings from the States Loran
C receiver, which is receiving the identical electronic signals
available to a commercial fishers Loran C receiver. Unlike a
driver facing a prosecution based on the states breath test
result, a commercial fisher can independently receive and obtain
a reading from the same Loran C signals that the State uses. The
commercial fisher can offer evidence of this independent reading,
and can potentially store an electronic record or create a hard
copy of the receivers Loran C output. In short, the commercial
fisher has the independent ability to challenge the reading of
the States receiver.
We again conclude, as we did in Wamser, that when the
State enforces commercial fishing regulations using Loran C
receivers, due process does not require the State to create a
contemporaneous electronic or photographic printout of the Loran
C readings.
The defendants next argue that under the best evidence
rule, Loran C evidence is inadmissible unless the readings are
recorded in a printout.11 But we rejected this argument in
Wamser,12 and the defendants have demonstrated no reason to
overrule our prior decision.13
Evidence Rule 1002 provides that [t]o prove the content
of a writing, recording, or photograph, the original writing,
recording, or photograph is required[.] Evidence Rule 1001
defines writings and recordings as letters, words, or numbers ...
set down ... by ... magnetic impulse, mechanical or electronic
recording, or other form of data compilation.14 A Loran C
receiver provides a continuous readout of the electronic signals
broadcast by Loran C transmitters. In this case, the Loran C
readings were not set down or otherwise stored as a magnetic
impulse, a mechanical or electronic recording, or in some other
form of data compilation. Although this information apparently
could have been stored as data, the defendants have not convinced
us that the best evidence rule requires that it be so stored.
Nor have the defendants otherwise convinced us that the lack of a
printout should render the troopers observations of the Loran C
continuous electronic readings inadmissible. We therefore
conclude that the actual electronic readings displayed by the
Loran C are not subject to the best evidence rule.
When the State prosecutes a commercial
fishing violation based on a Loran C reading,
must the State introduce foundational
evidence concerning the maintenance of the
Loran C unit and the training of the person
who read the unit? If so, what should the
nature of this foundational evidence be?
Magistrate Burlinski excluded evidence of the Loran C
readings because the State did not introduce foundational
evidence showing that there were programs for regular maintenance
of the Loran C receivers used in these cases, or for the training
of the officers who used the receivers and read the readings.
But despite the lack of these programs, the evidence at the
hearing indicated that the troopers involved in these cases
ensured that the Loran C units were properly functioning, that
proper procedures were followed, and that the troopers were
reasonably qualified to use Loran C technology.15 In our view,
this evidence would have been sufficient to satisfy the
foundational requirements for introduction of the Loran C
evidence if the evidence had been tied to the specifics of the
defendants cases.
Conclusion
The decisions of the district court are REVERSED.
_______________________________
1 5 Alaska Administrative Code (AAC) 06.350(f) (except for
circumstances not relevant to this case, [s]almon may not be
taken in any locations that are not described in 5 AAC
06.200[.]).
2 The other fishers and their trial court case numbers are
Giuseppe F. Costa (3NA-99-146 CR), Russell Delgrosso (3NA-99-123
CR), Michael A. Green (3NA-99-103 CR), Scott A. Higgins (3NA-99-
106 CR), Curt E. Marble (3NA-99-069 CR), Paul D. McGee (3NA-99-
134 CR), Michael L. Sather (3NA-99-093 CR), Grant L. Thompson
(3NA-99-129 CR), and Drew B. Wise (3DI-99-138 CR). All ten cases
were apparently consolidated for the hearing.
3 See, e.g., former 5 AAC 06.200(c) (1988); former 5 AAC
06.205 (1988).
4 672 P.2d 163, 166 (Alaska App. 1983). Magistrate
Burlinski found the Wamser case inapplicable because the Loran C
instrument used in that case was not equipped with any mechanism
capable of providing a printout.
5 548 P.2d 376 (Alaska 1976).
6 Id. at 381.
7 Id. at 380 (citing former AS 28.35.033(3)).
8 Id. at 380.
9 Id.
10 Id. at 380-81.
11 See A.R.E. 1002.
12 672 P.2d at 166.
13 See Erickson v. State, 950 P.2d 580, 587 (Alaska App.
1997) (a litigant seeking to have an appellate court overrule a
prior decision must demonstrate convincing reasons why the
existing rule was originally erroneous or is no longer sound
because of changed conditions. The litigant must also
demonstrate that more good than harm would result from a
departure from precedent.).
14 See A.R.E. 1001(1).
15 See generally Paul C. Giannelli & Edward J. Imwinkelried,
1 Scientific Evidence 1-11, at 70-76 (3rd ed. 1999 and 2003
supplement).
