|
You can of the Alaska Court of Appeals opinions.
|
|
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
JASON M. THOMPSON,
Appellant, Court of Appeals No. A-
10083
v. Trial Court No. 3PA-
06-2765 Cr
STATE OF ALASKA,
Appellee. O P I N I
End of Caption O N
No. 2221 June 26,
2009
Appeal from the Superior Court, Third Judi
cial District, Palmer, Beverly W. Cutler,
Judge.
Appearances: Beth G. L. Trimmer, Assistant
Public Advocate, Appeals and Statewide
Defense, and Rachel Levitt, Public Advocate,
Anchorage, for the Appellant. Eric A.
Ringsmuth, Assistant Attorney General, Office
of Special Prosecutions and Appeals,
Anchorage, and Talis J. Colberg, Attorney
General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Bolger, Judges.
MANNHEIMER, Judge.
Jason M. Thompson appeals his conviction for second-
degree sexual abuse of a minor (consensual sexual penetration of
a child who is 13, 14 or 15 years of age by a | person who is at least 17 years old and at least four years older than the child | ).1 Thompsons sole claim on appeal is that the superior court should not have allowed the State to introduce the tape recordings (and derived transcripts | ) of two telephone conversations that the mother of the victim had with Thompson in October 2006. Thompson asserts that the State failed to establish the authenticity of these tape recordings, and that the trial judge therefore should have excluded the recordings under Alaska Evidence Rule 901. |
| For the reasons explained here, we conclude that the trial judge did not abuse her discretion when she concluded that the authenticity of the tape recordings was sufficiently established to warrant their admission into evidence. We therefore uphold Thompsons conviction. | ||
Underlying facts
In the summer of 2006, Thompson met A.D., a
girl who had turned thirteen at the end of May and who
would be entering the eighth grade in the fall.
Thompson was eighteen years old at the time, and had
already graduated from high school. Thompson and A.D.
started dating, and they soon began having sexual
intercourse.
A.D.s mother was aware that her daughter was
dating Thompson, and she suspected that Thompson and
A.D. were having sex. She therefore spoke to both A.D.
and Thompson about the nature of their relationship;
she told Thompson that A.D. was only thirteen years
old, and she expressed her view that their relationship
was inappropriate, given the difference in their ages.
However, despite the mothers misgivings, A.D. and
Thompson continued their sexual relationship.
Concerned for her daughter, A.D.s mother
contacted the Alaska State Troopers. On October 13,
2006, a trooper investigator, Nathan Bucknall,
contacted A.D.s mother about this matter. After
speaking with A.D.s mother, Investigator Bucknall
obtained a Glass warrant that authorized the recording
of conversations between A.D.s mother and Thompson.2
Under the authority of this warrant, Bucknall gave
recording equipment to A.D.s mother, showed her how to
use this equipment to record telephone conversations,
and directed her to try to engage Thompson in telephone
conversations about his relationship with A.D..
Two weeks later, A.D.s mother gave Bucknall
an audio tape that contained two recorded conversations
between herself and Thompson. In these taped
conversations, Thompson admitted that he knew that A.D.
was only thirteen, and he also admitted that he had had
sexual intercourse with A.D..
Based on the content of these tapes, Bucknall
obtained a search warrant to search Thompsons house.
The trooper executed the search warrant on November
2nd, and he arrested Thompson at that time.
Just before Thompsons trial began, Thompsons
attorney filed a motion in limine attacking the
admissibility of the two tape recorded conversations.
The defense attorneys motion was based on the fact that
the taping had been done by A.D.s mother without direct
supervision by the troopers. Thompsons attorney noted
that, unlike members of the state troopers, A.D.s
mother had never been required to take an oath to
uphold the federal and state constitutions. The
defense attorney suggested that, because no law
enforcement officer participated in the taping, the
State could not guarantee that A.D.s mother had not
tampered with the tapes or deleted exculpatory portions
of the conversations before turning them over to the
troopers.
After reading the defense motion, Superior
Court Judge Beverly W. Cutler concluded that Thompsons
concerns were pertinent to the weight or credibility of
the evidence, but that these concerns did not justify
exclusion of the tapes.
Later in the trial, Thompsons attorney
renewed his contention that the tapes should be
excluded. This time, the defense attorney declared
that the State had failed to establish the necessary
chain of custody for the tapes, and he further asserted
that the tapes did not represent the best evidence of
the conversations between Thompson and A.D.s mother.
The doctrine of chain of custody refers to
the need to account for the possession or whereabouts
of certain types of physical evidence from the time the
evidence was seized until the evidence is offered in a
judicial proceeding.3 The best evidence rule refers to
the requirement that when a litigant wishes to prove
the content of a writing, a recording, or a photograph,
the litigant must normally produce an original or a
duplicate of the writing, recording, or photograph
(unless the litigant satisfactorily explains why no
original or duplicate is available).4
Thompsons attorney did not explain to Judge
Cutler why he believed that there was an insufficient
chain of custody of the tape recordings. Nor did
Thompsons attorney explain why he believed that the
recordings themselves were not the best evidence of the
content of the recordings.
Instead, the defense attorney asserted that
the tapes were inadmissible because no state trooper
was present when A.D.s mother performed the taping.
The defense attorney told Judge Cutler: [W]hen you
[execute] Glass warrants, the trooper should be present
so [that] the names of the parties who were there can
be presented, [and] who theyre calling, [and] the time
and date that theyre calling.
Judge Cutler again concluded that the defense
attorneys argument went to the weight or credibility of
the evidence, rather than the admissibility of the
tapes. She therefore again overruled the defense
attorneys objection.
To complete our description of the underlying
facts pertinent to this issue, we now set forth, in a
more detailed fashion, the relevant testimony of two
witnesses at Thompsons trial: A.D.s mother, and Alaska
State Trooper Investigator Nathan Bucknall.
A.D.s mother testified that she tape recorded
two conversations with Thompson. When A.D.s mother was
shown transcripts of these two recordings, she
identified the transcripts as memorializing her two
recorded conversations with Thompson.
A.D.s mother further testified that she was
initially reluctant to turn the recordings over to
Trooper Bucknall because [she] knew the consequences
[of] hand[ing] them over to the authorities. However,
she finally decided to give the recordings to the state
troopers to protect [her] daughter because she was
aware of her daughters sexual relationship with
Thompson, and [she] couldnt see it ending unless she
acted.
A.D.s mother was unsure of the exact dates of
her two recorded conversations with Thompson. She was
only able to say that these conversations took place in
October ... or maybe even November 2006. However,
Trooper Bucknall was able to provide more precise dates
for these conversations.
Bucknall testified that he met with A.D.s
mother on October 13, 2006. After interviewing her,
Bucknall applied for a Glass warrant. That evening,
after obtaining the Glass warrant, Bucknall returned to
A.D.s mothers house. At that time, he supplied her
with the equipment she would need to record her
conversations with Thompson, and he instructed her in
the use of this equipment.
Four days later, on October 17th, A.D.s
mother contacted Bucknall to tell him that she had
recorded two conversations with Thompson, and she
summarized the contents of these two conversations for
Bucknall.
Bucknall told A.D.s mother that the Glass
warrant still had several more days to run, so she
should keep trying to engage Thompson in conversation.
He also told her that he would get in touch with her
the following week, after the warrant expired, to
retrieve the taped conversations.
Bucknall next spoke to A.D.s mother on
October 25th. At that time, she expressed reluctance
to relinquish the taped conversations to him; she told
him that she was not sure she wanted to continue the
investigation. Bucknall gave A.D.s mother a couple of
days to think the matter over. Two days later, on
October 27th, A.D.s mother called Bucknall to tell him
that she had decided to surrender the taped
conversations to the troopers. Bucknall immediately
went to A.D.s mothers house, where he retrieved the
physical tape that contained recordings of the two
conversations.
Based on these events, and based on Bucknalls
own review of the recorded conversations, Bucknall
concluded that the two taped conversations introduced
into evidence at Thompsons trial were the two
conversations that A.D.s mother had described to him
during their conversation on October 17th. In other
words, they were the two conversations that A.D.s
mother recorded sometime between October 13th (when
A.D.s mother received the recording equipment) and
October 17th (when A.D.s mother reported to Bucknall
that she had recorded two conversations with Thompson,
and when she summarized the contents of those conversa
tions for Bucknall).
Thompsons arguments that the tape recordings (and the
transcripts derived from them) should not have been
admitted at his trial
On appeal, Thompson argues that the State
failed to adequately establish the authenticity of the
two tape recordings, and that (as a result) there was
an unacceptable risk that the recordings were
unreliable i.e., an unacceptable risk that the
recordings were not accurate audio reproductions of
conversations that really took place between A.D.s
mother and Thompson. In support of this contention,
Thompson makes two discrete arguments.
Thompsons first argument is essentially the
same contention that he made to Judge Cutler: the
contention that when the police use a civilian to
perform electronic recording under a Glass warrant, one
or more officers must directly supervise or monitor the
civilians actions.
In Bohanan v. State, 992 P.2d 596 (Alaska
App. 1999), this Court held that an informant or a
cooperative citizen may lawfully conduct the electronic
monitoring or recording authorized by a Glass warrant,
even when the informant or civilian acts without direct
police supervision. Bohanan, 992 P.2d at 601.
The pertinent facts of Bohanan are quite
similar to the facts of Thompsons case. A woman
contacted the troopers and reported that Bohanan had
sexually assaulted her. Based on the womans report,
the troopers obtained a Glass warrant, hoping that the
victim could telephone Bohanan and engage him in
conversation about the assault.5 The troopers gave the
woman the equipment she needed to record telephone
conversations with Bohanan, they instructed her on how
to use the equipment, and they gave her pointers on how
to speak with Bohanan so as to elicit the kinds of
statements the authorities would need to support a
prosecution for sexual assault.6
On appeal, Bohanan contended that the tapes
of these conversations should have been suppressed
because the taping was done by civilians rather than
police officers.7 We held that, even though the
troopers instructed [the victim] to take the recording
equipment home with her and engage Bohanan in
conversation without direct participation of any state
trooper, ... the required level of [police] supervision
was met and the tapes were admissible. Id. at 601.
In Thompsons brief to this Court, he gives
lip service to Bohanan. He acknowledges that, under
Bohanan, it was lawful for Trooper Bucknall to obtain a
Glass warrant and then have A.D.s mother initiate the
conversations with Thompson and perform the recording
herself. But Thompson then proceeds to argue that any
and all recordings resulting from such an investigative
procedure are inadmissible because no law enforcement
officer directly supervised the recording:
The [crux] of the authenticity problem
in this case [is] that the Glass warrant was
executed by an unsupervised civilian without
any law enforcement monitoring. ... [N]o
law enforcement officer could testify that
they were responsible for recording ... the
calls between [A.D.s mother] and Jason
Thompson. Neither could [any] law
enforcement officer testify that the entire
conversations were recorded.
. . .
No law enforcement officer could testify
that all of the conversations that occurred
during [the 10-day period] of the Glass
warrant were recorded. ... [And it is of]
significant consequence to the accuracy and
authenticity of the [tape recordings] that no
law enforcement officer could testify as to
exactly when ... the [taped] conversations
occurred[.]
This argument is irreconcilable with
our decision in Bohanan. The level of police
supervision in Bohanan was essentially
identical to the level of police supervision
in Thomsons case and we held in Bohanan that
this level of supervision was sufficient.
An implicit premise of our decision
in Bohanan is that, when the police employ
this investigative procedure, the resulting
recordings will be admissible even though no
law enforcement officer is able to testify
that they were [personally] responsible for
recording [the conversations], and even
though no law enforcement officer is able to
give their personal assurance that the entire
conversations were recorded, or that [every]
conversation[] that occurred during [the
period] of the Glass warrant [was] recorded,
and even though no law enforcement officer
has personal knowledge of exactly when ...
the [taped] conversations occurred.
Apparently, this premise now needs
explicit affirmation. Accordingly, we hold
that when a civilian performs the recording
authorized by a Glass warrant under the
procedures described in Bohanan and employed
in Thompsons case, the resulting recordings
are admissible even though no law enforcement
officer has directly supervised or monitored
the civilians acts of recording, and even
though no law enforcement officer is able to
give the types of testimony that Thompson
demands.
Of course, a defendant is entitled to
assert that the conversations portrayed in
Glass-warrant recordings have been
selectively chosen, or selectively edited, or
even altered, so as to make the defendant
appear guilty. And when the date or time of
a conversation is important, a defendant is
entitled to assert that the date or time of
the conversation has been misreported or can
not be identified with certainty.
But the fact that no law enforcement
officer can assert personal knowledge of
these matters does not, standing alone,
constitute a legal bar to the admission of
the recordings. The State is entitled to
rely on the testimony of the civilian who
performed the recording, or on other
evidence, to establish the authenticity of
the recordings and to rebut the kinds of
assertions listed in the preceding paragraph.
Thompsons second argument is that,
even if police testimony was not essential,
the State nevertheless failed to
satisfactorily establish the authenticity of
the recordings. Thompson asks us to adopt
the nine-pronged test for authenticity of an
audio recording set forth by Professors
Edward J. Imwinkelried and Daniel D. Blinka
in their text, Criminal Evidentiary
Foundations (2nd ed. 2007).
According to Professors Imwinkelried
and Blinka, the strict, traditional
foundation for audio tapes requires the
government to prove:
$ the identity of the recording equipment;
$ the fact that the recording equipment
was in working order;
$ the fact that the operator of the
recording equipment was qualified to operate
it; and
$ the fact that the operator used proper
procedures for making the recording.
In addition, the government is required to
establish:
$ the specific time and place of the
recording;
$ the fact that, at the time it was made,
the recording was an accurate reproduction of
the conversation or other audio event;
$ a satisfactory chain of custody for the
physical audio tape;
$ proof that the audio tape offered in
court is the same physical object that was
produced during the original act of
recording; and
$ verification that the tape still
contains an accurate reproduction of the
conversation or other audio event.
$ Id., 4.06 (Tape Recordings), p. 135.
There is good reason to doubt that
courts ever insisted on strict proof of all
nine of these suggested foundational
requirements. For example, an attentive
reader will observe that, according to the
seventh and eighth of these listed
requirements, the government must establish a
chain of custody for the original physical
audio tape. This appears to be inconsistent
with the best evidence rule codified in
Alaska Evidence Rules 1001 through 1004.
Under Evidence Rule 1003, any duplicate of an
audio tape that is, any counterpart produced
by ... electronic rerecording, see Evidence
Rule 1001(4) is admissible to the same
extent as an original (absent a genuine
question concerning the authenticity of the
original from which it was made, or other
circumstances making it unfair to admit the
duplicate in lieu of the original).
The suggested nine foundational
factors become even more problematic when one
considers that a large number of audio
recordings are now originally created on
computers or portable digital recorders. In
these instances, the original recording
exists only as a digital sound file on the
recording devices memory chip or card.
If the recording is later to be
offered as evidence in a judicial proceeding,
the digital sound file must be downloaded or
copied to some portable medium such as a
compact disk or flash drive (unless the
proponent of the evidence is willing to part
with their computer or their digital
recorder), or the digital sound file must be
converted to analog so that it can be copied
onto a magnetic cassette tape.
In these circumstances, it makes no
sense to require the proponent of the
evidence to prove chain of custody in the
sense of proving that the recording medium
presented in court (for example, a compact
disk) is the same physical object that was
produced when the original recording was
performed because the digital recording
process (unlike older magnetic tape recording
technologies) does not normally result in the
production of a physical object to begin
with.
In fact, Professors Imwinkelried
and Blinka acknowledge that courts have begun
to liberalize the standards for admission of
tape recordings and that many modern courts
are no longer insisting on the traditional,
strict foundation.8 This is because courts
have gone back to fundamentals and [have]
begun to treat the question of a tape
recordings authenticity as a simple question
of authentication under Federal [Evidence]
Rule 104(b).9 Thus, the modern test for
authentication is ... [whether] the proponent
[of the evidence has] presented sufficient
evidence to support a rational finding [that]
the tape recording is authentic.10
Imwinkelried and Blinka explain
that, under this modern approach, the last
element of the traditional foundation,
standing alone, has sufficient probative
value to authenticate the tape.11 In other
words, under present-day law, when a litigant
offers an audio recording into evidence, the
ultimate question is whether the proponent of
the recording can satisfactorily establish
that the recording is an accurate
reproduction of the conversation or other
audio event portrayed in the recording.12
(We note that this is essentially
the same test employed in Alaska for
assessing the admissibility of a photograph.
See Johnson v. State, 636 P.2d 47, 67 (Alaska
1981), and Kaps Transport, Inc. v. Henry, 572
P.2d 72, 75-76 (Alaska 1977), both holding
that the admissibility of photographic
evidence hinges on whether the proponent of
the evidence can establish that the
photograph accurately depicts its subject.)
With regard to the two tape-
recorded conversations at issue in Thompsons
case, the State presented testimony to
support the conclusions (1) that A.D.s mother
engaged Thompson in conversation about his
relationship with A.D., (2) that A.D.s mother
recorded two of these conversations, and (3)
that she recorded these two conversations
sometime between the time Investigator
Bucknall delivered the recording equipment to
her on October 13th and the time on October
17th when she telephoned Bucknall to report
that she had recorded two conversations with
Thompson (and when she summarized the content
of these conversations for Bucknall).
Moreover, A.D.s mother testified that she had
reviewed the transcripts of the two
recordings, and that these transcripts
reflected the two conversations she recorded.
In sum, the State presented ample
evidence to support the conclusion that the
two recordings accurately depicted the two
conversations that they purported to
reproduce. Moreover, Thompson offered
nothing to affirmatively rebut the States
evidence on this issue. Thompson never
challenged the fact that it was his voice on
the recordings, nor did Thompson challenge
the fact that he had engaged in conversations
with A.D.s mother concerning his relationship
with A.D., nor did Thompson present any
evidence tending to show that the recordings
offered by the State inaccurately portrayed
the content of his conversations with A.D.s
mother.
Under these circumstances, Judge
Cutler did not abuse her discretion when she
concluded that the recordings (and the
transcripts derived from them) were
admissible, and that Thompsons objections
went merely to the weight or credibility of
the evidence.
On appeal, Thompson also argues
that the State failed to sufficiently
establish the chain of custody of the
physical tape, that the tape recorded
conversations were irrelevant, that (if
relevant) they were unfairly prejudicial and
misleading, and that admission of the
recordings violated his right to due process.
For the most part, Thompsons various legal
theories are simply rewordings of his
underlying contention that the State failed
to prove the authenticity of the recordings
i.e., failed to present sufficient evidence
that the recordings accurately depicted the
two conversations that they purported to
reproduce. We have already rejected that
contention.
Thompson has a slightly stronger
argument on one narrow issue: it is true
that the State failed to establish the
precise dates and times of the two recorded
conversations. However, as we have
explained, the States evidence was sufficient
to support the conclusion that the two
recorded conversations took place during the
four-day period between Investigator
Bucknalls delivery of the recording equipment
to A.D.s mother on the evening of October
13th and A.D.s mothers verbal report to
Bucknall on October 17th.
Moreover, even if the conversations
conceivably occurred later (i.e., sometime
between October 17th and October 27th, the
day that A.D.s mother returned the recording
equipment to Investigator Bucknall and gave
him the tape that contained the two
recordings), the conversations would still be
relevant. In these recorded conversations,
Thompson admitted that he engaged in sexual
intercourse with A.D., and he admitted that
he knew that she was thirteen years old.
Even if Thompson wanted to argue that these
admissions did not conclusively prove his
guilt either because he ceased his sexual
relationship with A.D. as soon as he
discovered her true age, or because he
discovered A.D.s true age only after their
sexual relationship was over the State was
entitled to ask the jury to view Thompsons
statements in a more inculpatory light.
Conclusion
For the reasons explained here, Judge Cutler
did not abuse her discretion when she overruled
Thompsons objections and allowed the State to introduce
the two recordings and the transcripts derived from
them. The judgement of the superior court is AFFIRMED.
_______________________________
1 AS 11.41.436(a)(1).
2 See State v. Glass, 583 P.2d 872 (Alaska 1978) (holding
that, under the Alaska Constitution, the police must obtain
a warrant before electronically monitoring or recording a
private conversation, even when one or more participants to
the conversation consent to the police surveillance).
3 State v. Morris, 668 P.2d 857, 866 (Alaska App. 1983)
(Bryner, C.J., dissenting); Stephen A. Saltzburg, Michael M.
Martin, and Daniel J. Capra, Federal Rules of Evidence
Manual (9th ed. 2006), Vol. 5, pp. 901-15 to 901-17.
4 Alaska Evidence Rules 1001 through 1004; State v. Andrews,
84 P.3d 441, 444 (Alaska App. 2004).
5 Bohanan, 992 P.2d at 598.
6 Id. at 598, 601.
7 Id. at 598.
8Id. at p. 134.
9Id.
10 Id.
11 Id.
12 Id.
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
