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Thompson v. State

Court of Appeals of Alaska

June 26, 2009

Jason M. THOMPSON, Appellant,
v.
STATE of Alaska, Appellee.

Beth G.L. Trimmer, Assistant Public Advocate, Appeals and Statewide Defense, and

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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.

OPINION

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] Thompson's 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 Thompson's 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 mother's 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 Thompson's house. The trooper executed the search warrant on November 2nd, and he arrested Thompson at that time.

Just Before Thompson's trial began, Thompson's attorney filed a motion in limine attacking the admissibility of the two tape recorded conversations. The defense attorney's motion was based on the fact that the taping had been done by A.D.'s mother without direct supervision by the troopers. Thompson's attorney noted that, unlike members

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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 Thompson's 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, Thompson's 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]

Thompson's attorney did not explain to Judge Cutler why he believed that there was an insufficient " chain of custody" of the tape recordings. Nor did Thompson's 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 they're calling, [and] the time and date that they're calling."

Judge Cutler again concluded that the defense attorney's argument went to the weight or credibility of the evidence, rather than the admissibility of the tapes. She therefore again overruled the defense attorney's 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 Thompson's 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 ...


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