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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State v. Gonzales (04/20/2007) sp-6119
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| STATE OF ALASKA, | ) | |
| ) Supreme Court No. S- 12103 | ||
| Petitioner, | ) Court of Appeals No. A-08653 | |
| ) Superior Court No. 3AN-02-03050CR | ||
| v. | ) | |
| ) O P I N I O N | ||
| ANDREW GONZALES, | ) | |
| ) | ||
| Respondent. | ) No. 6119 - April 20, 2007 _______________________________ | ) |
Petition for Hearing
from the Court of Appeals of the State of
Alaska, on Appeal from the Superior Court,
Third Judicial District, Anchorage, Michael
L. Wolverton, Judge.
Appearances: Diane L. Wendlandt, Assistant
Attorney General, Anchorage, and David W.
M rquez, Attorney General, Juneau, for
Petitioner. Renee McFarland, Assistant
Public Defender, and Quinlan Steiner, Public
Defender, Anchorage, for Respondent.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
I. In 1992 Andrew Gonzales was accused of sexually abusing
the ten-year old daughter of his girlfriend. Following the
accusation Gonzales fled the state and the child required
extensive psychiatric hospitalization. Gonzales did not
resurface for ten years, at which point the state presented his
case to a grand jury, which indicted Gonzales. The superior
court dismissed the case against Gonzales after finding that the
ten-year pre-indictment delay was not reasonable and had resulted
in actual prejudice. The court of appeals upheld this dismissal.
We reverse because Gonzaless flight in combination with the
childs mental health needs justified the pre-indictment delay.
We remand to the superior court for further proceedings including
a determination of whether remedial sanctions are appropriate due
to prejudice from lost evidence, and if so, what those sanctions
should be.
II. FACTS AND PROCEEDINGS
A. Facts
On January 5, 1992 a state trooper stopped Andrew
Gonzales for a traffic violation while his girlfriend, D.D., and
her ten-year old daughter, A.D., were passengers in the car.1
The trooper noticed sexually explicit drawings inside the car
which depicted a young girl. Later that day the trooper
conducted a taped interview of A.D. and D.D., investigating
whether A.D. was the girl depicted in the drawings and whether
Gonzales had sexually abused A.D.
In that initial interview, A.D. denied that Gonzales
had ever seen her naked, touched her private parts, or asked her
to keep secrets. D.D. similarly indicated that she had never
seen or heard anything that would lead her to believe anything
was going on between A.D. and Gonzales.
By mid-January the case had been transferred to the
Anchorage Police Department and assigned to Detective Linda
Branchflower. On January 15, Detective Branchflower interviewed
A.D. alone. In that interview A.D. reported that Gonzales had
sexually abused her. Detective Branchflower arranged for A.D. to
come to the station where the detective recorded an additional
interview with A.D. During the in-station interview with
Detective Branchflower, A.D. stated that Gonzales had touched her
genitals and touched her with his penis. A.D. also explained
that she did not tell anyone about the abuse because Gonzales had
threatened to hurt her.
The next day the police executed a search warrant on
Gonzaless home, removing, among other things, drawings and
childrens clothing catalogs. The following day, January 17,
Detective Branchflower interviewed Gonzales. According to the
police report of the interview, Gonzales admitted that the
drawings found by the troopers were of A.D. but stated that A.D.
had not posed for them. When asked directly about the
allegations of sexual abuse, Gonzales invoked his right to
counsel and ended the interview. Detective Branchflower did not
arrest Gonzales or instruct him to remain in the state.
Following the interview, the police executed a second search
warrant on Gonzaless home, retrieving a tape they had missed
during the first search the previous day.
Gonzales left the state shortly after being questioned
by Detective Branchflower. He did not inform his fifteen-year
old son who was living with him and dependent on him that he
was leaving or where he was going. Indeed, Gonzales left between
the time his son went to bed one night and awoke the next day.
Gonzales did not notify his landlord or shut off his utilities.
He did not leave a forwarding address. And he did not inform
the police about his move.
Meanwhile the police responded to a call from D.D. in
late January reporting A.D.s upset and aggressive behavior. D.D.
stated that she had to hold down A.D. to prevent the girl from
hurting herself or her younger brother, and that A.D. later got
into a water-filled bathtub while fully clothed. Detective
Branchflower, learning about this report from the responding
officer, contacted D.D. and suggested that A.D. receive immediate
psychiatric care. A.D. spent much of the next six months in
residential treatment at the Charter North facility, and
continued to receive treatment afterwards. A.D.s final Charter
North hospitalization lasted twenty-one days during January
1996.
Over the weeks and months following the accusation
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 all states where she thought Gonzales might be
residing. Detective Branchflower suspended the investigation in
July 1992, noting [i]nvestigative leads have been exhausted.
Suspects whereabouts are unknown. Victim has significant
psychiatric trauma due to the sexual abuse. The investigation
remained suspended for several years although occasionally
Detective Branchflower checked to see if Gonzales had resurfaced.
Gonzales returned to Alaska in December 2001.
Detective Kristie Neddeau of the Anchorage Police Department
resumed the investigation when she learned of Gonzaless
whereabouts in Alaska from a concerned neighbor claiming that
Gonzales was grooming a child in the neighborhood for possible
sexual abuse. Neddeau obtained a search warrant to search
Gonzaless home for child pornography, and officers found
thousands of images of child pornography.
B. Proceedings
In September 2002 a grand jury indicted Gonzales for
four counts of first degree sexual abuse of a minor,2 two counts
of second degree sexual abuse of a minor,3 and one count of
attempted first degree sexual abuse of a minor,4 all stemming
from A.D.s 1992 allegations. The grand jury also indicted
Gonzales on three counts of distribution of child pornography and
seven counts of possession of child pornography based upon his
conduct in 2002. These latter counts are not on appeal before
us.
Gonzales moved to dismiss the sexual abuse of a minor
charges on the basis of prejudicial pre-accusation delay. By the
time the indictment was returned, the state had lost all tape
recordings of the interviews conducted by the state troopers and
Detective Branchflower in 1992 except for the initial interview
of A.D. in which she denied the abuse. The state also lost what
Gonzales alleges to be a videotaped version of the interview in
which A.D. accused Gonzales. The state has preserved transcripts
of all the interviews known to be recorded, with the exception of
Detective Branchflowers January 17, 1992 interview of Gonzales.
The superior court conducted a series of evidentiary
hearings in which Gonzales, Gonzaless son, and Detective
Branchflower testified. The superior court issued a written
order granting Gonzaless motion to dismiss the 1992-based charges
on the basis of pre-accusation delay. The superior court stated
on the record:
[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 [v. Anchorage][5]
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.
The state appealed the ruling to the court of appeals
which affirmed the superior court.6 The court of appeals held
that the State presented no evidence justifying the delay.7 The
court of appeals also characterized the issue before the superior
court as being whether due process was violated when the state
unreasonably delayed indictment, thereby prejudicing Gonzaless
ability to present a defense.8 In such a circumstance the court
of appeals stated that no lesser sanction than dismissal was
supported by case law.9
III. STANDARD OF REVIEW
An appellate court reviews a trial courts dismissal of
an indictment for an abuse of discretion.10 We will not overturn
a decision left to the discretion of the trial court [a]bsent a
definite and firm conviction that the judge made a mistake.11
We review de novo the question of which party holds
the burden of proof in a motion,12 as well as all other questions
of law. In ruling on questions of law we adopt the rule that is
most persuasive in light of precedent, reason, and policy.13
IV. DISCUSSION
A. The Pre-Accusation Delay Test Places the Burden of
Proof on the Defendant.
A defendants pre-accusation or pre-indictment rights
are entitled to limited protection under the federal and Alaska
Constitutions.14 The right to a speedy trial is not implicated
at all in such a case because that right attaches only upon
either formal charges or arrest,15 when the defendant experiences
a restraint on his liberty or suffers the public obloquy that
accompanies formal charges.16 Instead, an individuals primary
safeguard against undue pre-indictment delay is the statute of
limitations set by the legislature.17 Such statutes represent
legislative assessments of relative interests of the State and
the defendant in administering and receiving justice.18 Gonzales
does not dispute that his indictment fell within the statute of
limitations. The remaining safeguard against stale indictments
is provided by the due process clauses of both the Alaska and
federal constitutions.19
State due process challenges are analyzed under a two-
part test which aims to protect[] the accused from improper or
unreasonable conduct by the government in the bringing of a
criminal charge.20 The first part of the test inquires whether
the delay was reasonable.21 The second part examines the degree
of prejudice resulting from the delay.22 To establish an
unconstitutional pre-indictment delay, the defendant must prove
both that the delay was not reasonable23 and that the defendant
suffered actual prejudice from the delay.24 If the defendant
succeeds in meeting both parts of the test, the only sanction is
dismissal.25
Alaska case law requires that the defendant bears the
burden of proof to demonstrate the absence of a valid reason for
the delay.26 However, once the issue of pre-indictment delay is
raised, the state has the burden to come forward with reasons
for the delay.27 This intermediate burden is necessary because
the reasons for the delay are normally within the exclusive
knowledge of the state.28 When the reasons are advanced, the
defendant must show that they do not justify the delay.29 The
defendant also has the burden to prove actual prejudice.30
In this case the lower courts did not properly assign
the burden of proof to the defendant, instead placing the burden
on the state not only to proffer reasons for the delay but also
to justify why the delay was necessary. For example, the
superior court asked, Wouldnt [Gonzaless fleeing the state] cut
towards . . . lets indict him now in 1992[?] . . . I mean if
thats when he fled, under those circumstances, why wait? In
response to the states argument that Gonzaless flight was a
reasonable reason for the state to delay the superior court
remarked, I dont think [Gonzaless flight] has anything to do
with anything . . . and Detective Branchflower said as much.
She could have brought the charge. (Emphasis added.) Later the
superior court commented, I mean why didnt you go to a grand
jury? I just, quite frankly, still dont understand. And so I
think thats the real problem and I dont know the answer to it.
The court of appealss opinion characterizes the
evidence in a way that likewise indicates that the state failed
to meet its burden. The court summarized the factual
conclusions that the superior court could reasonably have come
to and concluded, the State presented no evidence justifying the
delay.31
In combination these statements indicate that the
burden of proof was misapplied in the lower courts. When the
facts of this case are reexamined under the proper burdens, we
are compelled to reverse.
B. The Lower Courts Erred in Finding that the Ten-Year
Delay in Gonzaless Indictment Was Unreasonable.
1. The delay in indicting Gonzales is
presumptively valid because of his flight
from the state and because of concerns about
the welfare of A.D.
The record indicates that the state offered two
persuasive reasons for the ten-year delay between the 1992
allegations of child molestation and the 2002 indictment.
First, Gonzales fled the state and could not be located until
2002. Second, A.D. was institutionalized for a significant
period of time subsequent to the alleged abuse.32 After these
reasons were proffered, the lower courts should have shifted the
burden to Gonzales to show that his flight and concerns about
A.D. were not reasonable reasons to delay prosecution. Both of
the reasons the state mentions Gonzaless absence from the state
and concerns about the minor have been found, in isolation, to
justify delay. We consider each reason in turn.
(a) A defendants flight is a reasonable reason
for the state to delay an indictment.
Alaska cases support the states proposition that a
defendants flight is a reasonable cause for the state to delay
an indictment. In Lipscomb v. State,33 the court of appeals held
that Lipscombs due process rights were not violated by a three-
year delay between his conduct of failing to appear for a
hearing and his indictment on the charge because Lipscomb left
the state and operated under an assumed name in the intervening
time.34 A bench warrant was issued in Lipscombs name but not
entered into the national computer systems as was normal
practice.35 A detective did make several unsuccessful inquiries
into Lipscombs whereabouts. Lipscomb claimed that the police
could have known about his whereabouts if they had entered his
warrant into the computer system, but we noted that because
Lipscomb was arrested under false names elsewhere, this was not
necessarily the case. 36
Gonzales argues that his situation is distinguished
from Lipscomb in several ways. First, Gonzales argues that
Lipscomb truly fled because at the time he left the state he had
already been indicted for robbery (indeed, Lipscomb failed to
appear at a pretrial hearing, leading to the pre-indictment
delay in charging him with failure to appear).37 In contrast,
Gonzales argues that there was nothing to indicate to Gonzales
that he should or was required to remain in Alaska. We reject
that argument. Gonzales was aware of the ongoing investigation
and believed that he needed a lawyer. Because Gonzales delayed
the states investigation, the case had not yet reached the point
of arrest or indictment. That he had not yet been indicted does
not make Gonzaless departure any less a flight.
The record also offers a plethora of reasons to
characterize Gonzaless departure as a flight: he left home in
the middle of the night, having never [been] so scared in [his]
life, without knowing where he was going, and without informing
his minor son.38 He failed to notify his landlord or shut off
utilities. And he subsequently misled his girlfriend D.D. as to
his whereabouts by sending a note suggesting that he was looking
for work in Seattle.
Gonzales also attempts to distinguish himself from
Lipscomb on the issues of false identity and thoroughness of the
police search. Gonzales maintains that he never changed his
identity, unlike the defendant in Lipscomb, and that the police
failed to follow up on leads that would have taken them to him.
Specifically, Detective Branchflower had been told that Gonzales
might be in Las Vegas with his uncle Jack Carother (where
Gonzales lived for some months before moving elsewhere in the
city). Detective Branchflower did not contact the Las Vegas
police with Gonzaless suspected location at the uncles home.
Nonetheless it seems that Gonzales worked to conceal his
location. As the state points out, Detective Branchflower was
in fact told that Gonzales had left Alaska a week earlier and
was staying with his uncle for only a few days, meaning that
Gonzales would have already moved on by the time Detective
Branchflower learned of the tip had the information been
accurate. This was apparently confirmed by Gonzaless subsequent
false message to D.D. that he was living in Seattle. The state
also points out that Gonzales moved several times in his ten-
year absence and that he often was self-employed or living with
friends, making him more difficult to trace.
Gonzales cites Odekirk v. State39 for the proposition
that the state should have done more investigative work in order
for a delay predicated on his absence to be reasonable. Odekirk
presented the question of whether or not Criminal Rule 4540
barred a defendants conviction. In order to make that
determination the court needed to decide whether to exclude the
period of Odekirks absence from the state from the speedy trial
time limits. The law provided that a defendant was considered
absent (and thus the time did not run against the state)
whenever his whereabouts are unknown and in addition he is
attempting to avoid apprehension or prosecution or his
whereabouts cannot be determined by due diligence.41 Odekirk
established that a failure to exhaust every conceivable method
of locating a defendant will not establish a lack of due
diligence so long as the state, employing customary methods,
continues to actively seek a defendant.42 However, in Odekirk
the court found that the state did not exercise due diligence
when no effort was made to trace Odekirk through the military or
to discover where it sent his personal effects, particularly
given that Odekirks commanding officer had called the police to
warn of Odekirks pending discharge.43
Odekirk is distinguishable on several grounds,
including that Criminal Rule 45 does not apply to pre-indictment
delay.44 Moreover, the tip that Gonzales was in Las Vegas with
his uncle was not entitled to the same weight as the evidence
overlooked in Odekirk. This is particularly true because
Detective Branchflower received multiple conflicting reports as
to Gonzaless whereabouts. In addition, the circumstances of
Gonzaless departure are significantly more incriminating than
those in Odekirk. Odekirks departure came after the initial
charges brought against him had been dismissed, when it was
uncertain whether more charges were to come, and when his
military service was up.45 Gonzales had no similar reason to
expect that his investigation was going to be dismissed, and his
actions in leaving suddenly in the middle of the night are much
more consistent with flight.
Finally, Gonzales argues that the length of delay in
his case exacerbates any ordinary concerns of pre-indictment
delay including faded memories and difficulties in locating
witnesses, making an otherwise reasonable delay unreasonable.
Our case law has not emphasized the length of pre-accusation
delay. As the court of appeals stated here, 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.46 Nonetheless, in Mouser that proposition was
used to explain that even a relatively short pre-accusation
delay could violate a defendants rights,47 and no case that has
come before us has approached the length of the delay at issue
here.48 We have emphasized the continuing nature of the
investigations during periods of delay and have cautioned that
continued or long term inactivity or a pattern of lack of prompt
investigation of cases might warrant our reconsideration of such
periods.49 However, because the delay here was caused largely by
the actions of the defendant, the ten-year delay was nonetheless
reasonable.
In sum, the state presented a valid reason for delay,
and the defendant did not adequately rebut that presumption of
reasonableness.
(b) Concerns about the welfare of A.D. justify
delay.
In Yarbor v. State,50 we held that a seven-month pre-
indictment delay did not violate the defendants due process
rights because it was not unreasonable for the state to wait
three months for the mother of a sexual abuse victim to decide
whether or not to press charges. Yarbor performed lewd and
lascivious acts towards a ten-year old child in August 1973.
Between August and December of that year the district attorneys
office reviewed the case, and in December a formal complaint was
prepared for the minors mother to sign.51 The mother was
notified several times a month that the complaint was ready for
her signature, but she did not sign until March of that next
year.52 Two days later, Yarbor was served with the complaint.53
This court found that the states decision to wait three months
because of the mothers hesitation was not unreasonable.54 The
court noted that the emotional effects to the child, injury to
the childs reputation, and family disruption[] all had to be
considered in [the mothers] decision.55
In Burke v. State,56 we expanded on the justifiability
of delay in cases involving sexual abuse of a minor. In that
case the accused was charged with statutory rape against his
stepdaughter. We explained that [a]lthough the mother in this
case was not reluctant, a concern by the district attorneys
office over the advisability of bringing charges of a similarly
serious nature also suggests that the effects on the victim and
her family are factors which must be carefully weighed by the
district attorney.57
Case law thus shows that consideration for the victims
situation is an acceptable reason for pre-indictment delay.
Indeed, it is possible that the investigators had even more
reason for the delay in the present case because A.D.
necessitated such extensive psychiatric hospitalization
allegedly due to her trauma. Furthermore, Burke and Yarbor each
presented a case in which any testimony from the victims could
be put to immediate use because the whereabouts of the
perpetrator was known. In contrast, Detective Branchflower
could reasonably hesitate even longer before bringing A.D. in
front of a grand jury given that Gonzales could not be found.
The superior court acknowledged that further testimony
would have been necessary from A.D. for the grand jury to indict
Gonzales, but faulted the state for not presenting evidence that
A.D. was unable to have testified in 1992 (presumably following
her release from the hospital). The superior court stated on
the record, this is a case that was ready to go and it didnt go,
and problems have resulted. We disagree with that
characterization. Given A.D.s emotional fragility and the
defendants absence from the state, the state acted reasonably by
delaying. By the time that A.D. was released from the hospital,
Gonzalez had fled. The superior court abused its discretion in
determining that the states decision to delay was unreasonable.
C. Determinations of Prejudice Should Be Made by the
Superior Court on Remand.
Because we hold that the pre-indictment delay was
reasonable, the defendant cannot succeed in establishing both
prongs of the pre-indictment delay test and therefore the
indictment may not be dismissed because of pre-indictment delay.
But a question remains as to what, if anything, should be done
on account of the lost tape recordings. Gonzales argues that he
has been prejudiced because the state lost the tapes to eleven
interviews related to the charges against him. Two of these
tapes, Gonzales claims, are crucial to a jurys determination of
credibility. Of these eleven interviews, Gonzales has
transcripts of every one except his own interview with Detective
Branchflower which took place on January 17, 1992. This is one
of the interviews that Gonzales describes as crucial, and the
state concedes that there was a tape to the interview that has
since been lost. The other such tape is Detective Branchflowers
in-station interview of A.D. in which A.D. first makes the
accusations. Gonzales states that this is a video-recorded
interview, as were the other interviews conducted that day of
M.D. (A.D.s brother) and D.D.58
It is unclear that the interview was recorded with a
video recorder, as Detective Branchflowers police report notes
suggest, as Gonzalez asserts, and as the state seems to concede.59
Remarks in the transcript of the interviews indicate that the
interview was an audio recording, not video. At one point
Detective Branchflower instructed A.D. You have to say yes or no
because my tape recorder can hear you pretty good but cant see
you when you shake your head, OK? At another point Detective
Branchflower told A.D. Youre gonna have to talk real big for my
tape recorder. Finally, when Detective Branchflower asks A.D.
whether or not Gonzales owned a video camera, instead of
pointing to the one that Gonzales asserts was in the room to
give an example, Detective Branchflower said, Does he have a
video camera? Do you know what a video camera is? Something
that can take a movie of you? The transcripts show a similar
likelihood that audiotape was used to interview M.D. later that
same afternoon.60 This is important because one of Gonzaless
most compelling arguments was that the videotape would supply
information about body language and subtle cues as well as
showing what A.D. did with the anatomical dolls she was using to
describe the assault. Accordingly, on remand the superior court
should determine whether the interview was recorded with a video
or audio recorder.
The superior court addressed this missing evidence in
the context of determining actual prejudice under the second
prong of the test for pre-indictment delay. It found that:
because the tapes were missing, among[] other items of evidence
. . . I would have granted the motion under Fletcher [v.
Anchorage][61] 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.62 This conclusion conflates two different
standards and misunderstands the role of a Fletcher instruction.
In Fletcher the court of appeals provided guidance to
courts regarding whether and how to apply sanctions when
evidence has been lost in preparation for a case.63 Under
Fletcher, the imposition of sanctions and what sanctions should
be applied is to be determined by weighing the degree of
culpability involved on the part of the state, the importance of
the evidence which has been lost, and the evidence of guilt
which is adduced at trial . . . . [W]here it appears that the
evidence was lost or destroyed in good faith, the imposition of
sanctions will depend on the degree to which the defendant has
been prejudiced.64 Fletcher also stated a policy that [t]he
remedy of dismissal is a severe sanction which is generally not
justified unless there has been deliberate action by the
government or significant prejudice to the defendant.65
Almost by definition, Fletcher asks a different
question than prong two of the test for prejudicial pre-
indictment delay.66 On the one hand, the second prong of the pre-
indictment delay test recognizes that, because the state
ordinarily owes the accused no duty to indict promptly,
unjustified delay by itself (that is, absent a showing of
prejudice), cannot raise due process concerns. The second prong
thus requires the accused to shoulder the further burden of
proving that the states unreasonable delay actually caused
serious prejudice that is, prejudice exposing the accused to an
intolerable risk of being unfairly convicted. On the other
hand, the Fletcher test recognizes that the state has a due
process duty to preserve physical evidence. Thus, when the
state breaches this duty, Fletcher requires the prosecution to
bear the burden of proving that the failure to preserve the
evidence was in good faith and that the defendant has not
suffered prejudice.67 Unlike the pre-indictment delay test,
which mandates dismissal if the criteria are met, the Fletcher
test leaves the trial court with the discretion to apply a wide
array of remedies to cure any prejudice resulting from the
missing evidence, including less drastic measures like a
curative instruction to the jury. While these differences made
it inappropriate for the superior court to equate Fletchers
standard for giving a curative instruction with the pre-
indictment delay tests requirement that the accused prove
serious prejudice, the superior court will now need to consider
Fletcher on remand to determine what sanctions, if any, are
warranted in light of the states loss of evidence here.
The philosophy underpinning Fletcher is that some
forms of prejudice can be cured and that a lack of some piece of
evidence is not generally fatal to a case.68 As the court of
appeals found in State v. Norman,69 when the government has
destroyed evidence through negligence . . . a court should not
dismiss the charges against the defendant unless it
affirmatively appears that the lost evidence would have created
a reasonable doubt concerning the defendants guilt. Similarly,
this court held in Thorne v. Department of Public Safety70 that
the states failure to preserve a videotape of defendants
sobriety test should be cured by instructing the hearing officer
to presume the videotape would have been favorable to Thorne.
On remand, the superior court should determine what sanctions,
if any, are required in light of the evidence lost in this case.
V. CONCLUSION
We REVERSE the decision of the court of appeals and
REMAND to the superior court for further proceedings, including
whether sanctions under Fletcher are appropriate and, if so, what
they should be.
_______________________________
1 Gonzales is not related to A.D.
2 AS 11.41.434(a)(1).
3 AS 11.41.436(a)(2).
4 AS 11.41.434(a)(1) & AS 11.31.100.
5 650 P.2d 417, 418 (Alaska App. 1982).
6 State v. Gonzales, 121 P.3d 822 (Alaska App. 2005).
7 Id. at 826.
8 Id. at 828.
9 Id.
10 Sheldon v. State, 796 P.2d 831, 834 (Alaska App. 1990).
11 City of Kenai v. Ferguson, 732 P.2d 184, 190 (Alaska
1987).
12 Flynn v. E.I. du Pont de Nemours & Co., 988 P.2d 97, 98
(Alaska 1999).
13 Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
14 See State v. Mouser, 806 P.2d 330, 336 (Alaska App.
1991).
15 United States v. Lovasco, 431 U.S. 783, 788-89 (1977);
United States v. Marion, 404 U.S. 307, 320-21 (1971); Burke v.
State, 624 P.2d 1240, 1242-43 n.1 (Alaska 1980); Yarbor v. State,
546 P.2d 564, 567 (Alaska 1976).
16 Marion, 404 U.S. at 320.
17 Marks v. State, 496 P.2d 66, 68 (Alaska 1972).
18 Marion, 404 U.S. at 322.
19 U.S. Const. amend. XIV; Alaska Const. art. I, 7;
Lovasco, 431 U.S. 789; Burke, 624 P.2d at 1242; Coffey v. State,
585 P.2d 514, 519 (Alaska 1978).
20 State v. Mouser, 806 P.2d 330, 336 (Alaska App. 1991).
21 Lipscomb v. State, 700 P.2d 1298, 1309-10 (Alaska App.
1985).
22 Id.
23 The state argues that we should explicitly adopt the
prevailing standard in most federal jurisdictions: a presumption
that the state is acting reasonably in cases of delay unless the
defendant can show that the state is acting in bad faith. We
decline to adopt that approach at this time.
24 Mouser, 806 P.2d at 336.
25 Alexander v. State, 611 P.2d 469, 475 (Alaska 1980)
([Remand to determine pre-accusation delay] will either result in
a dismissal of the conviction or a finding of no pre-indictment
delay.).
26 Coffey v. State, 585 P.2d 514, 519-20 (Alaska 1978).
27 Mouser, 806 P.2d at 336 (quoting York v. State, 757
P.2d 68, 71 (Alaska App. 1988)).
28 Coffey, 585 P.2d at 520 n.19.
29 Mouser, 806 P.2d at 336.
30 Id.
31 State v. Gonzales, 121 P.3d 822, 826 (Alaska App.
2005).
32 The state at times argued a third reason that the
state was waiting for better evidence to materialize. This
reason has the least support from the record, and we join the
court of appeals in addressing these concerns in the context of
A.D.s emotional state.
33 700 P.2d 1298 (Alaska App. 1985).
34 Id. at 1309-10.
35 Id.
36 Id.
37 Id.
38 As a result his son became a ward of the state, living
in a state home and foster homes.
39 648 P.2d 1039 (Alaska App. 1982).
40 Alaska R. Crim. P. 45 sets out speedy trial guidelines,
which are not directly applicable to Gonzales because his right
to a speedy trial had not attached at the pre-indictment stage.
41 Odekirk, 648 P.2d at 1040 n.1 (quoting Alaska R. Crim.
P. 45).
42 Id. at 1043.
43 Id.
44 See Yarbor v. State, 546 P.2d 567 (Alaska 1976) (right
to speedy trial does not attach until defendant formally
accused).
45 Odekirk, 648 P.2d at 1043-44.
46 Gonzales, 121 P.3d at 825 (citing State v. Mouser, 806
P.2d 330, 336 (Alaska App. 1991)).
47 Mouser, 806 P.2d at 336.
48 See Burke v. State, 624 P.2d 1240 (Alaska 1980) (five-
month delay); Alexander v. State, 611 P.2d 469 (Alaska 1980)
(ninety-one days); Prenesti v. State, 594 P.2d 63 (Alaska 1979)
(eight months); Coffey v. State, 585 P.2d 514 (Alaska 1978) (four
months); Yarbor, 546 P.2d 564 (seven months); P.H. v. State, 504
P.2d 837 (Alaska 1972) (seven and one-half months); Marks v.
State, 496 P.2d 66 (Alaska 1972) (eight months); McKay v. State,
489 P.2d 145 (Alaska 1971) (two and one-half months). See also
United States v. Lovasco, 431 U.S. 783 (1977) (eighteen months);
United States v. Marion, 404 U.S. 307 (1971) (over three years);
Lipscomb v. State, 700 P.2d 1298 (Alaska App. 1985) (three
years).
49 Burke, 624 P.2d at 1245.
50 546 P.2d 564, 567 (Alaska 1976).
51 Id. at 565.
52 Id. at 565-66.
53 Id. at 566.
54 Id. at 567.
55 Id.
56 624 P.2d 1240 (Alaska 1980).
57 Id. at 1246.
58 In Gonzaless initial Memorandum in Support of Motion to
Dismiss Indictment dated December 18, 2002, Gonzales separately
identifies a videotaped interview with A.D., M.D. and D.D. from
January 15, 1992 from the taped interviews dated January 17, 1992
on the transcripts, suggesting two rounds of interviews with A.D.
and M.D. in the police station two days apart. Detective
Branchflowers testimony and the content of the interview
transcripts reveal that the transcripts were mislabeled as
January 17th when the interview in fact occurred on January 15th.
The state made this point in States Opposition to Gonzales Motion
to Dismiss before the superior court. Gonzales seems to concede
the issue in his Supplemental Briefing: Motion to Dismiss where,
following a hearing that included testimony from Detective
Branchflower, he argues that Detective Branchflower did not even
attempt[] to re-interview A.D. following the January 15th
interview. Finally, from his citation in his brief, it is clear
that Gonzales considers the interview transcribed in the excerpt
90-96 to be part of the videotaped interview of January 15th.
59 The state argued to the court in its supplemental
briefing on the motion to dismiss that The video tape defendant
refers to is that of A.D. While the video tape was lost, the
audio tape was transcribed and produced to defendant.
60 Detective Branchflower similarly instructed M.D. as if
there was an audio recorder only. Detective Branchflower said to
M.D., Ok. Youre shaking your head no. You know what, my tape
recorders got real good ears but it cant see you when you shake
your head so you have to say yes or no.
61 650 P.2d 417, 418 (Alaska App. 1982).
62 Quoted in State v. Gonzales, 121 P.3d 822, 824 (Alaska
App. 2005).
63 650 P.2d at 418.
64 Id. at 418 (quoting Putnam v. State, 629 P.2d 35, 43-44
(Alaska 1980)).
65 Id.
66 See supra at Part IV.A. (test for pre-indictment delay
looks to whether delay was reasonable and, if not reasonable,
whether delay resulted in actual prejudice to defendant).
67 650 P.2d at 418.
68 Id.
69 875 P.2d 775, 777 (Alaska App. 1994).
70 774 P.2d 1326, 1331 (Alaska 1989).
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