Appeal from the Superior Court, Third Judicial District, Kenai, Charles K. Cranston and Charles T. Huguelet, Judges. Court of Appeals No. A-9296 Trial Court No. 3KN-02-253 Cr
The opinion of the court was delivered by: Mannheimer, Judge.
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Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
Justin A. Starkweather appeals his convictions for burglary, theft, sexual assault, attempted murder, and first-degree assault, stemming from an attack on a woman in Soldotna in 2002. In our previous decision in this case, Starkweather v. State, Alaska App. Memorandum Opinion No. 5506 (August 19, 2009), 2009 WL 2568545, we rejected all of Starkweather's allegations of pre-trial error and trial error except one. The exception was Starkweather's claim that the superior court should have ordered the district attorney's office to disclose the prosecutor's handwritten notes of a pre-trial interview between the prosecutor and a potential witness, Fred Bahr Jr..
When Starkweather requested production of these notes, the prosecutor objected, but the prosecutor turned the notes over to the superior court for an in camera review. The superior court reviewed the prosecutor's notes and concluded that they contained nothing discoverable, but the court preserved the notes (under seal) for purposes of any later appeal.
In our prior decision, we concluded that most of the prosecutor's notes were non-discoverable under Alaska Criminal Rule 16(b). Starkweather, Memorandum Opinion at 15, 2009 WL 2568545 at *7-8. See Sivertsen v. State, 963 P.2d 1069, 1071 (Alaska App. 1998), where we held that Criminal Rule 16(b)(1)(A) does not require prosecutors to disclose oral statements that a witness makes during a trial preparation interview.
However, the prosecutor's notes included descriptions of two statements that Bahr attributed to Starkweather. As we noted in our prior opinion, Criminal Rule 16(b)(1)(A)(ii) requires the State to disclose "the substance of any oral statements made by the accused". Thus, even though the State was not required to disclose most of the prosecutor's interview notes, the State was required to disclose the substance of Starkweather's two out-of-court statements (as related by Bahr). Starkweather,
Memorandum Opinion at 15-16, 2009 WL 2568545 at *8-9.
Because of this discovery violation, we remanded Starkweather's case to the superior court for consideration of two issues: (1) whether Starkweather was otherwise alerted to the existence of the two statements and, if not, (2) whether Starkweather was prejudiced by the non-disclosure of the two statements. Id. at 18, 2009 WL 2568545 at *9. (And, because we remanded Starkweather's case to the superior court, we did not resolve the issues that he raised regarding his sentencing.) The superior court has now issued findings regarding the two non-disclosed statements, and the parties have filed supplemental briefs. These supplemental briefs address the superior court's findings, and Starkweather also raises several claims of error concerning the procedures that the superior court followed during the remand litigation.
Starkweather's argument that the superior court should have called the trial prosecutor to the stand as part of the remand litigation
On remand, Starkweather's attorney asked the superior court to hold an evidentiary hearing for a single purpose: calling the trial prosecutor to the stand so that she could be interrogated under oath.
The defense attorney told the superior court that she wished to interrogate the prosecutor concerning her initial failure to disclose the two statements that Fred Bahr attributed to Starkweather -- specifically, to determine whether the prosecutor acted in good faith or bad faith. In addition, Starkweather's attorney told the superior court that she wished to interrogate the prosecutor concerning the circumstances of her interview with Fred Bahr, the exact content of Bahr's descriptions of Starkweather's statements during that interview, and Bahr's tone of voice when he related these statements. In particular, the defense attorney stated that she wished to investigate whether the two statements that Bahr attributed to Starkweather had actually been made by Starkweather -- that is, whether Bahr personally heard Starkweather make these two statements, or whether Bahr was only relating what someone else told him about Starkweather's statements.
Finally, Starkweather's attorney also told the superior court that she wished to investigate whether the prosecutor's notes conveyed "the entirety of the discoverable information given by Bahr".
Superior Court Judge Charles T. Huguelet (the judge who presided over the remand litigation) declined to order the trial prosecutor to testify under oath. Instead, Judge Huguelet concluded that Starkweather's concerns were already answered by the existing record.
With regard to whether the trial prosecutor acted in good faith when she initially failed to disclose her handwritten notes of her pre-trial interview with Bahr, Judge Huguelet pointed out that the prosecutor had not hidden or destroyed the interview notes, but had instead produced the notes for inspection when she was directed to do so by Superior Court Judge Charles K. Cranston (the original trial judge in Starkweather's case). Judge Huguelet also pointed out that the prosecutor openly asserted that the notes were not discoverable, and that Judge Cranston reached the same conclusion after examining the notes in camera.
(To this, we would add that, with the exception of the two statements that Bahr attributed to Starkweather, this Court reached the same conclusion in our earlier decision in this case: that is, we held that, with the exception of the two statements attributed to Starkweather, the prosecutor's notes were not discoverable.)
Starkweather argues that it was impossible for Judge Huguelet to reach any firm conclusion concerning the prosecutor's good or bad faith without placing the prosecutor under oath and subjecting the prosecutor to cross-examination. We do not agree. Given the circumstances here, and given this Court's prior decision in Sivertsen, 963 P.2d at 1071 (where we held that a prosecutor normally need not disclose their notes of a trial preparation interview with a witness), there is nothing in the record to indicate that the prosecutor acted in bad faith -- even though she was mistaken with respect to the portion of her notes that contained the descriptions of Starkweather's two out-ofcourt statements. Judge Huguelet could reasonably conclude that putting the prosecutor on the stand would amount to nothing more than a fishing expedition.
Starkweather's attorney's alternative rationale for interrogating the prosecutor was to flesh out the circumstances of her interview with Fred Bahr, to determine the exact content of Bahr's descriptions of Starkweather's statements during that interview, and to hear the prosecutor's testimony regarding Bahr's tone of voice when he related these statements.
It appears that a substantial portion of this information -- specifically, the particular questions put to Bahr by the prosecutor, and the prosecutor's observations or impressions concerning Bahr's demeanor during the interview -- is protected by the work product privilege. Moreover, as we have already explained, we held in Sivertsen that a prosecutor normally does not need to disclose the contents of a trial preparation interview with a witness.
With respect to the suggestion that, during Bahr's interview with the prosecutor, he might have described other statements made by Starkweather, the record again contains no indication of this. The prosecutor's notes contain only the two statements that we described in our first opinion in Starkweather's case. And, as we noted in our earlier opinion in this case, when Judge Cranston directed the prosecutor to answer (as an officer of the court) whether her notes omitted any significant statement made by Bahr during the interview, the prosecutor answered, "Nothing." Starkweather, Memorandum Opinion at 12, 2009 WL 2568545 at *6.
In short, there is nothing to suggest that Bahr attributed any other statements to Starkweather during the interview. Again, Judge Huguelet could reasonably conclude that the defense attorney was merely fishing, and that nothing would be gained by putting the prosecutor under oath to have her repeat what she had already told Judge Cranston in open court -- to wit, that her notes of the interview contained everything of substance that Bahr said.
This leaves Starkweather's contention that cross-examination of the prosecutor was required so that Starkweather's attorney could investigate the possibility that Bahr might not have personally heard Starkweather make the two statements at issue -- the possibility that Bahr was only relating what someone else told him about Starkweather's statements. But this was already clear from the record.
As Judge Huguelet noted in his findings, the defense received independent disclosure of one of the statements that Bahr attributed to Starkweather: Starkweather's purported statement to his girlfriend, Melissa Larson, "I just did something bad, and it's your fault because you wouldn't come and talk to me." The independent disclosure of this statement is contained in the notes and transcript from an interview of Bahr conducted by Investigator James Truesdell on March 21, 2002, and a follow-up interview of Melissa Larson conducted by Truesdell on April 4, 2002.
In Bahr's police interview, Bahr reported that Melissa Larson told him that Starkweather told her that "he fucked up, he did something wrong, and he needed to talk to her". And in Truesdell's follow-up interview with Larson, she stated that Starkweather made this statement to her (although she described Starkweather's words slightly differently).
In other words, Judge Huguelet could reasonably conclude that it was clear, from the existing record, that Bahr did not personally hear Starkweather make this statement, and that Bahr's only knowledge of the statement came from talking to Larson.
With regard to the second statement that Bahr attributed to Starkweather -- "Bring [Larson] back or I will kick your ass" -- Judge Huguelet did not make an explicit finding as to whether Bahr personally heard this statement. However, from Bahr's description of Starkweather's words, it is apparent that Bahr described this statement as having been made directly to him by Starkweather (over the telephone). Indeed, Starkweather's defense attorney actively argued that this was the case -- i.e., that when Starkweather made this statement, he was speaking directly to Bahr. The defense attorney argued that this incident showed, among other things, that Bahr and Starkweather were acquainted (and that Bahr was lying when he claimed that he did not know Starkweather).
In sum, Judge Huguelet could reasonably conclude that it was unnecessary to have the prosecutor take the stand to describe her understanding as to whether Bahr personally heard Starkweather utter the two statements that Bahr attributed to him.
For all of these reasons, Judge Huguelet could reasonably conclude that it was unnecessary to make the prosecutor take the stand and be cross-examined about any of the topics suggested by Starkweather. Thus, Judge Huguelet did not abuse his discretion when he declined to order the prosecutor to take the stand during the proceedings on remand.
The question of whether Starkweather was prejudiced by the State's initial failure to disclose the two statements that Bahr attributed to Starkweather
We now reach the question that we directed the superior court to investigate during the remand proceedings: whether the investigation or presentation of Starkweather's defense might have been prejudiced by the prosecutor's failure to ...