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303 K Street, Anchorage, Alaska 99501
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| STATE OF ALASKA, | ) |
| ) Court of Appeals No. A-8653 | |
| Appellant, | ) Trial Court No. 3AN-S02-3050 CR |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| ANDREW D. GONZALES, | ) |
| ) | |
| Appellee. | ) [No. 2013 October 7, 2005] |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Michael L.
Wolverton, Judge.
Appearances: Kenneth J. Diemer, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, Gregg
D. Renkes, Attorney General, and Scott J.
Nordstrand, Acting Attorney General, Juneau,
for the Appellant. Margi A. Mock, Assistant
Public Defender, and Barbara K. Brink, Public
Defender, Anchorage, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
In January 1992, the Anchorage police uncovered
evidence that Andrew D. Gonzales had sexually abused his
girlfriends daughter, A.D. During the investigation, the police
contacted Gonzales for an interview. He left the state within
days of the contact. By July 1992, the investigation was
dormant.
Ten years later, the police discovered that Gonzales
had returned to Alaska. The 1992 case was reopened and the grand
jury indicted Gonzales in September 2002 for several counts of
sexual abuse of a minor based on the 1992 allegations. The grand
jury also indicted Gonzales for several counts of distribution
and possession of child pornography based on conduct in 2002.
Gonzales moved to dismiss the counts that were based on
the 1992 allegations. Gonzales argued that the ten-year delay
between the 1992 discovery and investigation of the allegations
and the 2002 indictment was unreasonable and prejudiced him.
Gonzales argued that he was prejudiced because several items of
evidence collected by the police in 1992 had been lost.
Superior Court Judge Michael L. Wolverton granted
Gonzaless motion to dismiss. Because we conclude that Judge
Wolvertons ruling was not an abuse of discretion, we affirm.
Background and proceedings
During a traffic stop on January 5, 1992, an Alaska
State Trooper noticed sexually explicit drawings of a juvenile
female on the floor of Gonzaless car. Later that day the state
troopers interviewed A.D., the juvenile daughter of Gonzaless
girlfriend (D.D.), to investigate whether Gonzales had depicted
her in the drawing, and whether he had sexually abused her. In
the interview, A.D., who was ten years old at the time, denied
that Gonzales had ever drawn her naked and denied that he had
sexually abused her.
The troopers referred the investigation to the
Anchorage Police Department. Anchorage Police Detective Linda
Branchflower re-interviewed A.D. on January 15, 1992. During
this interview, A.D. stated that Gonzales had sexually abused her
by taking her clothes off and fondling her genital area and by
touching her with his penis. Detective Branchflower videotaped
an interview with A.D., her younger brother, M.D., and her
mother, D.D.
The next day, Detective Branchflower executed a search
warrant on Gonzaless residence. The day after executing the
warrant, Branchflower learned from D.D. that Gonzales said that
the police missed a videotape hidden in his kitchen.
Branchflower contacted Gonzales at his work and asked him to come
to the police station for an interview. Branchflower assured
Gonzales that no matter what he told her in the interview, she
would allow him to leave without being placed under arrest.
Gonzales agreed to an interview at the police station.
During the interview, Gonzales admitted that the
illustrations found by state troopers in his car were of A.D.,
but said that she had not posed for them. When the detective
confronted Gonzales about A.D.s allegations of sexual abuse, he
requested an attorney. Branchflower ended the interview, but
told Gonzales that if he changed his mind about talking to her
further, she was still interested in getting his side of the
story.
Gonzales left the state soon after this interview.
Detective Branchflower attempted to locate Gonzales by searching
databases that would show whether Gonzales had applied for a
drivers license or had committed a crime in Florida, Nevada, or
Washington states where she had heard Gonzales might be
residing. But Branchflower did not locate Gonzales.
Branchflower suspended the Gonzales investigation in July of
1992.
Gonzales returned to Alaska in December of 2001. When
Anchorage Police Detective Kristie Neddeau learned that Gonzales
was residing in Alaska, she resumed the investigation. In
September 2002, the grand jury indicted Gonzales for four counts
of first-degree sexual abuse of a minor, two counts of second-
degree sexual abuse of a minor, and one count of attempted first-
degree sexual abuse of a minor,1 based on Gonzaless alleged abuse
of A.D. during 1991 and 1992. In addition, the grand jury
indicted Gonzales on three counts of distribution of child
pornography and seven counts of possession of child pornography,
based on conduct in 2002.2
Gonzales moved to dismiss the sexual abuse of a minor
charges on the ground of prejudicial pre-accusation delay. While
the case was dormant, the police lost most of the recordings of
the interviews that Branchflower conducted, including the
videotape of her interview with A.D. on January 15, 1992, and the
tape recording of Branchflowers interview with Gonzales. At the
evidentiary hearing on the motion, Judge Wolverton heard
testimony from Gonzales, his son, Andrew Gonzales Jr., and from
Branchflower, who had retired before the case was revived.
After the parties submitted additional briefing and
presented argument, Judge Wolverton granted Gonzaless motion to
dismiss the first seven counts of the indictment involving sexual
abuse of a minor. Judge Wolverton explained:
[T]here was no good reason set forth for the
delay. Im going to find also that because
the tapes were missing, among[] other items
of evidence ... that I would have granted the
motion under Fletcher[3] to give an
instruction to the jury that they would have
presumed that the evidence would have been
favorable to the defendant. In my view that
sort of finding ... is equivalent to actual
prejudice.
Judge Wolverton issued a summary written order granting Gonzaless
motion. He severed the first seven counts involving sexual abuse
of a minor from the remaining counts based on his conduct in
2002. The State now appeals.
Judge Wolverton did not abuse his discretion by
dismissing the charges
The State argues that Judge Wolverton erred by
dismissing the sexual abuse charges in the indictment. The State
claims that the delay was reasonable and did not prejudice
Gonzales.
We noted in State v. Mouser4 that the due process
clauses of the United States and Alaska Constitutions protect
defendants against unreasonable pre-accusation delay.5 The
primary concern of the rule against unreasonable pre-accusation
delay is not the length of the delay, but the harm to the
defendants ability to present a defense.6 In order to prove
unreasonable pre-accusation delay, a defendant must show (1) that
the State lacked a valid reason for the delay, and (2) that the
delay prejudiced the defendant.7
To assess a claim of pre-indictment delay, courts must
balance the States interest in postponing accusation against the
defendants interest in early notice of the charges against him.8
We review the superior courts decision to grant the motion to
dismiss for an abuse of discretion.9
As we mentioned above, Judge Wolverton found that the
State lacked a valid reason for the delay in indicting Gonzales.
Judge Wolverton also concluded that Gonzales was prejudiced by
the delay.
The State contends that the delay in indicting Gonzales
was justified because of Gonzaless flight from Alaska. The State
claims that Detective Branchflower did not refer the case to the
district attorney because she wanted to interview Gonzales again
to obtain his side of the story, but she could not do so because
Gonzales had left Alaska. But this contention overlooks the fact
that when Detective Branchflower had interviewed Gonzales, he
invoked his right to counsel and Branchflower had no plan to
contact him again. The record shows no reason to believe that
further contact would have been productive.
The State next argues that Detective Branchflower did
not refer the case to the district attorney because she believed
she needed to interview A.D. again to obtain additional
corroborating evidence. The State claims that Branchflower was
unable to obtain an additional interview with A.D. because A.D.
was admitted to Charter North Hospital intermittently.
Branchflower initially testified that she could not interview
A.D. a second time because of A.D.s psychiatric condition. When
asked to clarify what condition she was referring to,
Branchflower explained that about two weeks after A.D.s interview
Branchflower received a call from a patrol officer who had
responded to a situation at D.D.s residence. The officer said
that A.D. was acting strangely and that he was concerned for her
welfare. Branchflower spoke with D.D. and suggested that she get
A.D. into counseling immediately. Branchflower testified that
A.D. spent some time at Charter North Hospital, but that by July
of 1992 she was no longer there. Branchflower testified that
A.D. was in and out of Charter North several times between
January and July. But Branchflower testified that she was not
apprized of A.D.s treatment. And Branchflower testified that
when she suspended the investigation of Gonzales, A.D. was out of
the hospital. Branchflower also stated that she never tried to
interview A.D. a second time and that A.D.s mother never refused
a second interview.
There is another problem with the States argument that
Detective Branchflower was unable to pursue the investigation
because of A.D.s psychiatric problems. The State also ignores
that Detective Branchflower had previously conducted a videotaped
interview of A.D. on January 15, 1992, in which A.D. not only
stated that Gonzales had abused her but also described how and
when and approximately how many times Gonzales had done so.
Detective Branchflower testified that the only reason she wanted
to interview A.D. a second time was to ascertain whether there
was any more information that A.D. had not already provided, and
to ascertain whether A.D. had been telling the truth in her
previous statement. But Branchflower admitted that A.D.s
statement was a fairly complete accounting of specific instances
of sexual abuse by Gonzales. And Branchflower admitted that the
interview with A.D. ended, not because A.D. had refused to answer
more questions but rather because Branchflower had independently
decided to conclude the interview. There is no indication in the
record that Branchflower planned to interview A.D. a second time
because she doubted the veracity of A.D.s prior statements.
Therefore, the State presented no evidence that Branchflower
either wanted to or was unable to interview A.D. a second time.
Based on all these considerations, Judge Wolverton could
reasonably conclude that Branchflower did not suspend the
investigation because she could not interview A.D. a second time.
Thus, the State presented no evidence justifying the delay.
The State also attacks Judge Wolvertons ruling by
arguing that he failed to show sufficient deference to the
prosecutions discretion of when to indict a suspect. The State
relies on United States v. Lovasco10 for the proposition that
courts cannot require a prosecutor to seek an indictment as soon
as the prosecutor has probable cause to believe an accused is
guilty.11 But Judge Wolvertons ruling did not infringe on the
prosecutions right to decide when to charge Gonzales. Instead,
Judge Wolverton ruled that the ten-year delay in charging
Gonzales was not reasonable.
When a court considers a claim of unreasonable pre-
indictment delay, the court must weigh the governmental interest
in postponing accusation against the defendants interest in early
notice of the pending charges.12 We reject the States assertion
that Judge Wolverton intruded on the States prosecutorial
discretion by concluding that the pre-accusation delay was not
reasonable.
Furthermore, Judge Wolverton did not rule that the
State had delayed the indictment unreasonably because it had
failed to indict after obtaining probable cause. Rather, Judge
Wolverton found that the State had presented no valid reason for
indicting Gonzales after the case was dormant for ten years.
Therefore, Judge Wolverton did not intrude on the States
discretion as to when to bring charges against a suspect.
The State next argues that Gonzales failed to prove
that the States delay in indicting him prejudiced his ability to
present a defense. As mentioned above, Judge Wolverton found
that the States loss of video and audio tape records of
interviews conducted by Detective Branchflower prejudiced
Gonzales.
During the ten-year delay between the beginning of the
Gonzales investigation and the indictment against him, the police
lost video and audio tapes of interviews Branchflower had
conducted with several witnesses. The police lost tapes of
interviews Branchflower had conducted in 1992 with A.D., M.D.
(A.D.s younger brother), Gonzales, D.D. (A.D.s mother), Art Costa
(Gonzaless ex-father-in-law), Deolinda Gonzales (Gonzaless ex-
wife), Andrew Gonzales Jr. (Gonzaless son) and K.G. (a self-
professed second victim). Some of the tapes were audio and some
were video, and Branchflower interviewed some witnesses twice.
However, the State provided Gonzales with transcripts of all
interviews except the interview with Gonzales himself.
Apparently, that tape was never transcribed.
In the superior court, Gonzales argued that the loss of
two tapes in particular damaged his defense (1) the tape of
Gonzaless interview, and (2) the videotape of A.D.s interview in
which she first claimed that Gonzales had not abused her but then
claimed that he had. Gonzales argues that the audiotape of his
interview would allow him to show his disbelief at the
allegations against him. And Gonzales emphasizes that, unlike
the other interviews, no transcript of this interview exists.
Gonzales argues that the lost videotape of the A.D. interview
would have allowed the jury to assess her credibility based on
her demeanor, and to determine whether A.D. was reacting to
subtle cues from the investigator. Gonzales argues that the
transcript of A.D.s interview is inadequate to assess credibility
because the jury could not observe her demeanor. In addition,
Gonzales argues that the transcript of A.D.s interview prevents
him from presenting a defense because the transcript contains
seventy-six instances in which the transcriber could not decipher
A.D.s response to the question. Finally, Gonzales argues that
the transcript of A.D.s interview fails to communicate what A.D.
was referring to when Detective Branchflower and A.D. used
anatomical dolls, rather than verbal communication, to show what
Gonzales allegedly did to her.
The State argues that Gonzales and Detective
Branchflower could both testify at trial regarding Gonzaless
interview, such that the lost tape would not harm Gonzaless
defense. But, Branchflower stated that she only vaguely
remembered the interview, and that she could not provide details
about it beyond those in her report. Further, Branchflower did
not testify at the evidentiary hearing as to Gonzaless demeanor,
nor does Branchflowers report discuss his demeanor.
The State also argues that Gonzaless claim of prejudice
regarding the lost videotape of A.D.s interview is speculative.
The State points out that the audiotape of A.D.s January 5, 1992,
interview with the state troopers (preceding Detective
Branchflowers January 15 interview of A.D.), in which A.D.
consistently denied that Gonzales had abused her, was available
for Gonzaless use. The State argues that the troopers tape,
together with Detective Branchflowers notes and the transcript of
her interview of A.D., provide Gonzales with sufficient
impeachment evidence for trial.
In Mouser, we rejected a claim of prejudice based
merely on the claim that witnesses memories had faded.13 We
stated that because delay is a two-edged sword, witnesses faded
recollections can make it more difficult for the State to carry
its burden, thus actually aiding the defendant.14 We ruled that a
defendant claiming unreasonable delay must show a specific and
substantial harm resulting from the delay that impaired his
ability to present a defense.15
Unlike the situation in Mouser, Gonzales does not
allege a general harm of faded witness memory and difficulty
obtaining witnesses. Instead, Gonzales claims that the loss of
two particular tapes limited his ability to present a defense.
Even without considering the utility or prejudice resulting from
the loss of the tape of Branchflowers interview with Gonzales,
Judge Wolverton could reasonably conclude that the loss of the
videotape of A.D.s interview with Detective Branchflower had
prejudiced Gonzales. That tape may have provided fruitful
grounds to attack A.D.s credibility or challenge Branchflowers
investigation.
Finally, the State argues that Judge Wolverton could
have imposed a lesser sanction on the State than dismissing the
seven sexual abuse counts against Gonzales. We have noted that
trial courts are not automatically required to impose any
sanction when the State loses or destroys evidence in its
possession.16 But the issue before Judge Wolverton was whether
due process was violated when the State unreasonably delayed
indictment, thereby prejudicing Gonzaless ability to present a
defense. The State has not cited a case that permits a judge to
consider lesser sanctions than dismissal of the charge when there
is prejudicial pre-accusation delay nor have we found such a
case.
Conclusion
The judgment of the superior court is AFFIRMED.
_______________________________
1 AS 11.41.434(a)(1); 11.41.436(a)(2); 11.41.434(a)(1) &
11.31.100, respectively.
2 AS 11.61.125(a) & 11.61.127, respectively.
3 Fletcher v. Anchorage, 650 P.2d 417, 418 (Alaska App.
1982) (stating that a trial court can instruct the jury to assume
that lost evidence would have been favorable to defendant).
4 806 P.2d 330 (Alaska App. 1991).
5 Mouser, 806 P.2d at 336.
6 Id.
7 Id.
8 Id.
9 See Clark v. State, 953 P.2d 159, 163 (Alaska App. 1998).
10 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977).
11 Lovasco, 431 U.S. at 790-91, 97 S.Ct. at 2049.
12 Mouser, 806 P.2d at 336.
13 Mouser, 806 P.2d at 336-37.
14 Id. at 337.
15 Id.
16 State v. Ward, 17 P.3d 87, 89 (Alaska App. 2001).
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