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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
DEREK D. SAWYER, )
) Court of Appeals No. A-10160
Appellant, ) Trial Court No. 3GL-06-025 CR
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) No. 2290 - January 7, 2011
)
Appeal from the Superior Court, Third Judicial District,
Glennallen, John Suddock, Judge.
Appearances: Christine S. Schleuss, Law Office of Christine
Schleuss, Anchorage, for the Appellant. Tamara E. de Lucia,
Assistant Attorney General, Office of Special Prosecutions and
Appeals, Anchorage, and Daniel S. Sullivan, Attorney General,
Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger,
Judges.
BOLGER, Judge.
Derek D. Sawyer was convicted of murder for killing his wife, Gretchen
Sawyer. Sawyer's defense at trial was that Gretchen either committed suicide, or that
their twenty-nine-month-old son, Trace, shot her accidentally.
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Sawyer raises numerous claims of error. We conclude that Superior Court
Judge John Suddock did not abuse his discretion when he declined to order the State to
disclose investigations of other young children firing guns or when he declined to impose
sanctions on the State for their failure to preserve paper bags that the investigating
trooper used to package evidence taken from the crime scene. We conclude that
evidence that Sawyer was a good parent was not admissible to show that he was not a
murderer. We conclude that even if Sawyer did not waive his right to be present when
the judge questioned and dismissed an errant juror, Sawyer does not establish that his
absence caused any recognizable prejudice. And we conclude that another trial juror did
not commit a serious violation of his duties when he neglected to mention that his former
girlfriend had been killed in a drunk driving incident.
Background
Gretchen and Derek Sawyer married in 1994 and moved from Arkansas to
Glennallen, Alaska, after the birth of their son, Trace. Gretchen returned to Arkansas for
a visit in February of 1996, and during that visit she reunited with her former high school
boyfriend, Cody Bruce. Gretchen became pregnant, and Sawyer suspected that Bruce
was the father. The couple's relationship deteriorated as Sawyer continued to question
the baby's paternity while Gretchen maintained that it was his baby.
On July 13, 1997, Gretchen was shot once in the face with a Colt .357
Magnum revolver as she lay in her bed around midnight. Sawyer called 911 after the
shooting, and Alaska State Trooper Mark Ridling responded to the scene.
Sawyer reported that he and Gretchen had gone to bed around 10:00 that
evening, but that he got up to shower around midnight. Sawyer told Trooper Ridling that
he ran from the bathroom after he heard a gunshot and that his son, Trace, was sitting on
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the floor of the bedroom next to a revolver. Sawyer told the officer that the revolver
belonged to his father, and that Sawyer had placed the loaded gun on the kitchen table
next to a stack of rental videos, all of which he intended to return the next day. Trooper
Ridling seized some evidence from the bedroom, including the gun and the bloody
pillows from the bed.
The day after Gretchen's death, members of the community contacted
Trooper Ridling to ask if they could clean the Sawyers' house, and Ridling agreed,
believing that he could not secure the crime scene without a warrant.
Gretchen's killing went uncharged until Sawyer was indicted in 2006 on
one count of first-degree murder.1 At trial, Sawyer contended that Gretchen must have
committed suicide, or that twenty-nine-month-old Trace accidentally shot and killed his
mother. The State presented evidence that Trace was not physically able to pull the
trigger on the gun due to the size and strength of his hands. Sawyer was convicted after
trial and he now appeals.
Discussion
Sawyer's Motion to Compel
Sawyer filed a motion to compel, asking the judge to order the State to
produce the results of Alaska State Troopers investigations into incidents reported in the
Anchorage Daily News where young children fired weapons, resulting in injury or death.
The motion referred to three specific investigations "as well as any other instances of
young children firing guns known to the State." The State opposed the motion to
compel, arguing that the case files Sawyer requested were irrelevant. The State argued
1 AS 11.41.100(a)(1)(A).
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that the issue in Sawyer's case was not whether any child was capable of firing any gun,
but whether Trace was capable of firing the handgun used in this case.
Judge John Suddock denied the motion in a written order finding that
Sawyer's discovery request was unduly burdensome to the police authorities and would
constitute "an extraordinary waste of time and resources." Judge Suddock noted that the
request was "hopelessly overbroad," and remarked that the defense had available to it
"far superior avenues to pursue its point [that young children are capable of firing
guns]," including expert testimony by occupational therapists or national databases
maintained by safety organizations "that would dwarf the tiny sampling available in
police files in Alaska."
On appeal, Sawyer argues that the trial court committed reversible error
when it refused to compel the State to disclose Alaska State Troopers investigative
reports from the three reported incidents. Sawyer contends that the trial court was
required to issue a subpoena to compel this production because the reports contained
relevant evidence favorable to the defense.2
This court will uphold a trial court's decision to deny a motion to compel
discovery except when the court has plainly abused its discretion.3 An abuse of
discretion has occurred when the reasons for the exercise of the trial judge's discretion
are clearly untenable or unreasonable.4
2 See Braham v. State, 571 P.2d 631, 643 (Alaska 1977) (holding that information
from ongoing investigations must be disclosed if relevant and if disclosure will not "harm
enforcement or protection efforts").
3 Gunnerud v. State, 611 P.2d 69, 72-73 (Alaska 1980).
4 Lewis v. State, 469 P.2d 689, 695 (Alaska 1970).
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Alaska Criminal Rule 16(b)(1)(i) requires the prosecution to disclose "[t]he
names and addresses of persons known by the government to have knowledge of relevant
facts and their written or recorded statements or summaries of statements." Rule
16(b)(7) allows the court "in its discretion" to require disclosure of other relevant
information "[u]pon a reasonable request showing materiality to the preparation of the
defense." Information listed in Rule16(b)(1)(i) must be disclosed automatically, but
information covered by Rule 16(b)(7) need be produced on request only after a showing
of materiality.5
Both of these subsections require the discoverable information to be
relevant; this requirement will justify nondisclosure of information that is "reasonably
not thought to be germane to the case."6 In order to satisfy this relevance threshold,
evidence of unrelated prior incidents must have taken place under substantially similar
circumstances.7
There were significant dissimilarities between this case and those reported
in the news media. In one case from Kasilof, a five-year-old child was killed with a rifle,
but the report did not indicate which of three young siblings, all seven or younger, was
holding the rifle when it went off. In another case from Nightmute, a child of unreported
age shot a twelve-year-old boy with an unidentified weapon. In the third case from Fort
Wainwright, a four-year-old shot himself with a handgun he retrieved from a high shelf.
None of the cases involved a handgun fired by a child as young as Trace. There were
5 Carman v. State, 658 P.2d 131, 140 (Alaska App. 1983).
6 Howe v. State, 589 P.2d 421, 424 (Alaska 1979).
7 See Walden v. State Dep't of Transp., 27 P.3d 297, 303 (Alaska 2001) (evidence
of prior or subsequent accidents is admissible in product liability litigation so long as the
incident took place under substantially similar circumstances).
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also no parties or witnesses linking these investigations to Sawyer's case. We conclude
that the judge did not abuse his discretion in refusing to order this disclosure.
Sawyer's Motion to Dismiss the Indictment
Following the second day of testimony, Sawyer filed a motion to dismiss
the indictment based upon the State's failure to preserve the bags used to transport a blue
pillow from the Sawyer residence to the Glennallen trooper station. Sawyer requested
either dismissal of the indictment, or the suppression of all evidence relating to the seized
bedding and pillows, or a spoliation instruction.8
The State's theory at trial was that a tear in the fabric and gunshot residue
on the blue pillow showed that it was in contact with the gun when it discharged. The
defense argued that the gun was laying on the pillow when it was fired and that the blood
was transferred to the back of the pillow when it was packaged and contaminated by
other bloody objects. Sawyer argued that Trooper Ridling's failure to preserve the
original packaging of the pillows meant that the jury could not determine the position of
the pillow during the shooting. The State responded by pointing out that the blood-
soaked condition of the blue pillow was evident from photographs taken at the scene and
therefore it would be speculative for Sawyer to argue that the original packing would
allow him "to show ... whether there was blood on the back of the pillow." The State
also pointed out that Trooper Ridling testified that he recalled that there was blood on
both sides of the blue pillow when he seized it.
8 See Thorne v. Dep't of Pub. Safety, 774 P.2d 1326, 1331-32 & n.12 (Alaska 1989)
(finding that when the State fails to preserve evidence, the jury should be directed to presume
that the evidence would have been favorable to the defendant).
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Judge Suddock denied the motion, finding that Trooper Ridling's failure
to preserve the bags was in good faith, and that the defense had not shown any
prejudice.9 Judge Suddock noted that the defense would be free to argue that the
generalized deficiencies in the State's management of the evidence created a reasonable
doubt as to whether the pillows cross-contaminated one another, and stated "therein lies
the punishment to the State for [any] defects in evidence collection."10
On appeal, Sawyer withdraws his claim that the trial court should have
dismissed his indictment but pursues his claims that the judge should have suppressed
the evidence or given a spoliation instruction. The application of sanctions for the failure
to preserve evidence depends on the degree of the prosecution's culpability, the
importance of the lost evidence, and the prejudice to the defense.11
Judge Suddock's findings were not clearly erroneous and his ruling was
reasonable. Trooper Ridling's testimony suggested that the bags were likely destroyed
inadvertently. The evidentiary value of the packaging was not apparent. And Trooper
9 See March v. State, 859 P.2d 714, 716 (Alaska App. 1993) ("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.").
10 Thorne, 774 P.2d at 1331-32 & n.12.
11 Putnam v. State, 629 P.2d 35, 43 (Alaska 1980), abrogated on other grounds by
Stephan v. State, 711 P.2d 1156, 1159 (Alaska 1985) ("[W]here it appears that the evidence
was lost or destroyed in good faith, the imposition of sanctions will depend upon the degree
to which the defendant has been prejudiced."); Contreras v. State, 674 P.2d 792, 821 (Alaska
App. 1983), rev'd on other grounds, 718 P.2d 129, 130 (Alaska 1983) ("[W]here no specific
rule or court decision requires the prosecution to preserve the evidence in question ... the
defendant bears the burden of proving that, if preserved, the evidence would have been
exculpatory.").
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Ridling's observations suggested that the defense had not been prejudiced by the loss of
this evidence. Under these circumstances, no sanctions were required.
Sawyer's Request that His Children Be Allowed to Testify
The Sawyers had two children, Trace (Sawyer's biological child) and
Jodicee (the child that Sawyer suspected to be Bruce's). Sawyer sought to call his
children to testify as to the strength of their relationship with Sawyer and to the fact that
Sawyer did not love Trace more than Jodicee. Sawyer also sought to present the
children's testimony that Sawyer never spoke negatively about Gretchen, and that he
hung a photo of Gretchen in the children's bedroom.
Judge Suddock denied Sawyer's request, finding that the evidence was not
relevant, and was unduly prejudicial. Judge Suddock found that the testimony from the
children would advance the inference that they would be orphaned if Sawyer was
convicted.
Sawyer argues that his ability to present a defense was infringed when
Judge Suddock denied this request.12 Sawyer contends that the children's testimony was
crucial to counter the State's claim that Sawyer killed his wife because of his resentment
that Jodicee was not his biological child. We review a trial court's decision to exclude
evidence under Alaska Evidence Rule 403 for an abuse of discretion.13
Sawyer's attorney made the following argument when he offered this
evidence:
12 See Keith v. State, 612 P.2d 977, 984 (Alaska 1980) (admitting character evidence
over the State's objection that it was cumulative where the evidence "was vital to the
defendant's version of the events").
13 Weitz v. State, 794 P.2d 952, 955 (Alaska App. 1990).
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Our argument is, a killer doesn't keep constant reminders of
the person he killed, on a daily basis in his house. And that
if Derek Sawyer was a murderer, as they claim, who had no
blood interest in Jodicee at all, that it's fundamentally
inconsistent with that claim, to have loved her and raised her
[as he did] his own son.
In other words, Sawyer wanted to use the children's testimony about his good parenting
conduct to show that he was not a murderer. And, in the context of this case, he
obviously intended to use this inference that he was not a murderer to establish that he
did not murder Gretchen.
But evidence of a person's character is not admissible to show that the
person acted in conformity therewith on a particular occasion.14 And even when a trait
of the defendant's character is relevant, the defense may not rely on specific instances
of good conduct.15 So Sawyer was not entitled to use the inference that he was not a
murderer to show that he did not murder Gretchen. And he was not entitled to rely on
specific instances of good parenting to show that he was not a murderer.
It was not an abuse of discretion for the judge to conclude that any marginal
probative value of the children's testimony was outweighed by the danger of unfair
prejudice - that the jury would use the evidence improperly to conclude that Sawyer
was not a killer or that the jury would acquit to avoid separating the children from their
father.
14 See Alaska Evid. R. 404(a); Linehan v. State, 224 P.3d 126, 146-47 (Alaska App.
2010) (holding that evidence that defendant admired a murderous movie character was not
admissible to show that she committed murder).
15 See Alaska Evid. R. 405; Allen v. State , 945 P.2d 1233, 1239-40 (Alaska App.
1997) (holding that evidence of defendant's prior acts of violence was not admissible to
prove his character for violence).
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Sawyer's Right-to-Be-Present Juror-Dismissal Claim
After the prosecution had rested and the defense had already examined
several witnesses, the prosecutor reported that a juror, Daniel Becker, had been
discussing the case with friends and had commented on the case in violation of the
court's order. Judge Suddock examined Becker outside the presence of the jury, but in
the presence of defense counsel and the prosecutor. Sawyer's attorney stated that
Sawyer waived his right to be present.
During the examination, Becker admitted to discussing the case with two
non-juror friends; he admitted commenting generally about the evidence but denied
commenting on the strength of the State's case. Juror Becker also told the court that he
was scheduled to begin a training course related to his work and, therefore, would not
be available for jury service when the jury was expected to be deliberating.
Judge Suddock explained that he had clearly conveyed to the jury that they
were not to form or express opinions about the case, and that they were warned not to
divulge that they were jurors in the case. Judge Suddock found that Becker had willfully
violated these instructions. Judge Suddock announced that he would excuse Becker,
considering this violation, along with the fact that Becker desired to attend a training
during the time the jury was expected to be deliberating. The judge noted that "I think
we are more likely to have a fair and impartial jury if we do so."
Even though Sawyer's lawyer raised no objection at the time, and in fact
encouraged Judge Suddock to proceed in Sawyer's absence, Sawyer argues that his
constitutional right to be present at all stages of his trial was violated when Judge
Suddock questioned Becker in his absence. "If a defendant has a constitutional right to
be present at a proceeding, the defendant must personally waive his right to be present
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or expressly consent to allow the proceeding to occur outside his presence."16 When a
defendant's right to be present at a proceeding is violated, we evaluate whether the error
was harmless beyond a reasonable doubt.17
In many circumstances, the defendant has the absolute right to be present
when the court questions a juror,18 and the record contains no indication that Sawyer
personally waived his right to be present. We do not know what discussion occurred
between Sawyer and his attorney. But this type of error does not require reversal if there
is a legitimate reason to excuse the juror, if there is nothing in the record that suggests
that the defendant's presence would have affected the judge's decision, and if there is no
reason to believe that an alternate juror made a decision that was different than the juror
who was excused.19
We assume for purposes of this opinion that it was error to question Becker
outside Sawyer's presence. But the court's decision to excuse Becker was harmless
because the juror's violation of his oath and his work responsibilities were legitimate
reasons to excuse him. Defense counsel was present, and there is no reason to believe
that Sawyer's personal presence would have made a difference in the judge's decision.
There is likewise nothing in the record to suggest that the seating of the alternate juror
made any difference in the outcome of the trial.
16 Pease v. State, 54 P.3d 316, 324-25 (Alaska App. 2002).
17 Collins v. State, 182 P.3d 1159, 1163-64 (Alaska App. 2008).
18 See Pease, 54 P.3d at 325 (explaining that "it is error for a judge to receive the
verdict outside the presence of the defendant (even if counsel is present)").
19 Collins, 182 P.3d at 1163; Coney v. State, 699 P.2d 899, 904 (Alaska App. 1985).
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Sawyer's Motion for a New Trial Based upon Juror Misconduct
Prior to sentencing Sawyer filed a motion for a new trial alleging that
another juror, Martin Finnesand, failed to disclose information that the defense would
have used to challenge him. Specifically, defense counsel asked: "Has anyone, or their
relatives or friends, ever been the victim of or witness to a serious violent crime?"
Finnesand did not report that his former girlfriend, and the mother of his child, had been
killed in an incident for which her boyfriend was convicted of vehicular homicide.
At the evidentiary hearing on Sawyer's motion, Finnesand testified that he
and his girlfriend had a daughter together in 1981 and then separated in 1985. In 1990,
Finnesand's former girlfriend was killed when she was thrown from a moving vehicle,
possibly during an episode of domestic violence. Her boyfriend, Bill Linnell, pled no
contest to criminally negligent homicide and was sentenced to serve one year in jail.
Finnesand testified that the incident "simply did not come to [his] mind"
during the voir dire questioning about violent crimes and that he always thought of his
former girlfriend's death as being accidental. He testified that he believed that Linnell
had been charged with "drunken driving, or negligence of some kind." Finnesand
testified that the parties did not ask any questions during voir dire that reminded him of
his former girlfriend's death and he further stated that he did not especially want to sit
on Sawyer's jury.
Judge Suddock found that Finnesand did not consciously withhold
information and that any information relating to Finnesand's former girlfriend was
unrelated to Sawyer's trial. Accordingly, the judge denied Sawyer's motion for a new
trial.
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We review a trial court's denial of a motion for a new trial for an abuse of
discretion.20 When a party alleges juror misconduct, "the verdict should stand unless the
evidence clearly establishes a serious violation of the juror's duty and deprives a party
of a fair trial."21 A new trial should be granted if the jury selection process suggests that
a juror consciously withheld information.22
The trial judge applied the appropriate test when he concluded that
Finnesand did not consciously fail to disclose material information on voir dire. The
question about whether Finnesand's friends or relatives had been the victim of a violent
crime did not clearly apply to the information about Finnesand's former girlfriend
because Finnesand did not view the motor vehicle accident as a violent crime. There was
likewise no evidence that Finnesand's participation deprived Sawyer of a fair trial. The
judge's decision to deny the motion for a new trial was not an abuse of discretion.
Cumulative Error
Sawyer argues that the cumulative impact of the foregoing errors deprived
him of a fair trial. But "[c]umulative error requires reversal only when the impact of
errors at trial is so prejudicial that the defendant was deprived of a fair trial, even if each
individual error was harmless."23 We conclude that Sawyer has not established any error
20 Cheely v. State, 861 P.2d 1168, 1178 (Alaska App. 1993) (citing State v. Swain,
817 P.2d 927, 930 (Alaska App. 1991)).
21 Fickes v. Petrolane-Alaska Gas Serv., Inc., 628 P.2d 908, 910 (Alaska 1981)
(quoting West v. State, 409 P.2d 847, 852 (Alaska 1966)); see also Manrique v. State, 177
P.3d 1188, 1191 (Alaska App. 2008).
22 Soundara v. State, 107 P.3d 290, 296 (Alaska App. 2005).
23 Roussel v. State, 115 P.3d 581, 585 (Alaska App. 2005).
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except the judge's decision to question and exclude a juror when Sawyer was not
present, and that error did not cause Sawyer any recognizable prejudice.
Conclusion
We therefore AFFIRM the superior court's judgment.
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