Michael C. EVANS, Appellant,
STATE of Alaska, Appellee.
Marjorie Allard, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Kenneth M. Rosenstein, 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.
The defendant, Michael C. Evans, was tried and convicted of various counts of burglary, theft, and criminal mischief, stemming from a series of burglaries committed near Sterling and Soldotna in the summer of 2006. The question presented in this appeal is whether a mistrial should have been declared when, in the middle of Evans's trial, the State tardily disclosed information concerning exculpatory statements given by one of Evans's co-defendants, Joshua Kartchner.
Based on the pre-trial disclosures made by the State and statements made by the prosecutor, it appeared (when Evans's trial began) that Kartchner was cooperating with the State, that he had concluded a plea agreement with the State, that he had agreed to submit to a police interview, and that he would be testifying against Evans at trial. Based on this information, when Evans's defense attorney delivered her opening statement at the beginning of the trial, she attacked Kartchner's credibility.
However, the State did not call Kartchner to the stand during the first week of Evans's trial. Then, on Monday of the second week of Evans's trial, the prosecutor gave the defense attorney an audio recording of the interview that Kartchner had given to the police three weeks earlier ( i.e., two weeks before Evans's trial began). The prosecutor announced that the State no longer intended to call Kartchner as a witness-and that, in fact, the defense attorney might
want to call Kartchner as witness, because Kartchner's police interview was " potentially exculpatory" .
Under Alaska Criminal Rule 16(b)(1)(A)(iii), the government is required to automatically disclose " [a]ny ... recorded statements ... made by a co-defendant" . Thus, Evans's attorney should have received a copy of Kartchner's police interview before the trial began. The prosecutor conceded to the trial judge that she had " no good explanation" for the State's failure to disclose this material earlier.
Moreover, in Kartchner's police interview, he stated that he had spoken to another co-defendant who was cooperating with the State, Jerome Himmel, about the crimes charged in this case. According to Kartchner, when Himmel described one of the charged burglaries, he named three people as having participated in that burglary-and Evans was not among them. Kartchner also offered an exculpatory explanation for Evans's later possession of some of the stolen property: Kartchner said that he witnessed Evans purchase a large red tool box from Himmel for $300.
As noted above, the trial prosecutor indicated (when she turned the audio recording of this interview over to the defense attorney) that Kartchner's statements were " potentially exculpatory" . And on appeal, the State does not contest that Kartchner's statements were exculpatory evidence within the meaning of Criminal Rule 16(b)(3), which requires the government to " disclose ... any material or information within the prosecuting attorney's possession or control which tends to negate the guilt of the accused" .
Instead, the issue litigated in the superior court, and the issue litigated now on appeal, is whether Evans was prejudiced by the late disclosure of this information so as to require the trial judge to declare a mistrial.
Under Bostic v. State,805 P.2d 344, 348-49 (Alaska 1991), as interpreted by this Court in Jurco v. State,825 P.2d 909, 916-17 (Alaska App.1992), once the defendant articulates one or more plausible ways in which the defense case was prejudiced by the State's tardy, mid-trial disclosure of information that should have been disclosed earlier under Criminal Rule 16(b), the defendant is entitled to a ...