Appeal from the District Court, Third Judicial District, Anchorage,
Trial Court No. 3AN-12-3373 CR Leslie Dickson and Gregory J. Motyka, Judges.
Appearances: Andrew Steiner, Bend, Oregon, for the Appellant.
A. James Klugman, Assistant District Attorney, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. [*]
Steven Carter was convicted of third-degree theft for stealing $213 from a wallet during an Easter service at the Tudor Rescue Mission in Anchorage.  No one personally witnessed Carter take the wallet, but the theft was recorded by the Rescue Mission's video security system. Several people who viewed this video later testified at Carter's trial. The video itself, however, was not available at trial because the portion of the hard drive containing the video was automatically recorded over by the security system after a number of weeks.
The officer who was assigned to investigate Carter's case testified that he went to the Mission and asked the staff to make him a copy of the video, but he was told that the one person who knew how to do this was not available. The officer returned to the Mission at least five times to get a copy of the video, but he was never successful. Ultimately, it became too late: the security system over-wrote the video.
In this appeal, Carter claims that the Anchorage police had a duty to collect the video and preserve it - and that, because the police did not do so, the trial judge either should have dismissed the theft charge or, in the alternative, should have instructed the jurors that they should presume (contrary to all the evidence) that the video would have been exculpatory. See Thorne v. Dept. of Public Safety, 774 P.2d 1326 (Alaska 1989).
Carter's first theory is that the Anchorage police came into "constructive" possession of the video, and that they then allowed it to be destroyed. The facts of this case simply do not support an assertion of "constructive possession", at least as that phrase is normally understood. The video was in the possession of the Mission, the
Mission staff were not acting as agents of the police, and the police in fact made several attempts - all unsuccessful - to obtain a copy of the video. There was no "constructive possession".
Carter argues in the alternative that if police did not constructively possess the video, they nevertheless had a due process obligation to collect the video because they knew that it was material evidence.
Carter concedes that, in general, the government does not have a duty to collect all evidence pertinent to a crime. See March v. State, 859 P.2d 714, 716 (Alaska App. 1993). But Carter asserts that the facts of his case merit an exception to this general rule.
There is some authority for the assertion that the police have an affirmative duty to collect and preserve evidence that they know is important. See Klumb v. State, 712 P.2d 909, 912 (Alaska App. 1986). But we conclude that this duty does not apply to cases like Carter's - cases where the evidence is in the hands of a third party, where the defendant knows that the evidence exists (and understands the importance of it), where the evidence is not ephemeral (i.e., its probative value will not be impaired by a short delay in collecting it), and where the defendant has essentially the same opportunity as the government to subpoena or otherwise obtain the evidence.
We have encountered analogous situations before. For example, in Bradley v. State, 662 P.2d 993 (Alaska App. 1983), a defendant who was involved in a vehicular accident was taken to a hospital, where the hospital staff drew his blood and tested it for medical purposes.  Three days later, in accordance with hospital policy, the staff destroyed the blood sample (but retained a record of the test results).  The State obtained the test results (which included the ...