Appeal from the District Court, Third Judicial District, Trial Court No. 3HO-10-240 CR, Homer, Margaret L. Murphy, Judge.
Jane B. Martinez, Anchorage, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Craig C. Sparks, Assistant District Attorney, Kenai, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. [*]
Fred RussellCrane was prosecuted for driving under the influence and first-degree child endangerment (because his son was riding as a passenger in the car that Crane was driving).  At Crane's trial, Crane took the stand and testified that he had not been impairedbyalcohol. Later, duringthe State's rebuttal case, the officer who arrested Crane testified that, toward the end of their interaction at the police station, Crane apologized to the officer for being drunk. The State had not previously disclosed this information to the defense.
After the officer gave this testimony about the alleged apology, Crane's attorney moved for a mistrial on the ground that the audio recording of Crane's processing at the police station did not include this particular portion of Crane's interaction with the officer. See Stephan v. State, 711 P.2d 1156, 1162-63 (Alaska 1985), where the supreme court held that the police must record custodial interrogations that are conducted at a police station.
Later, the defense attorney voiced an additional objection: that the State's failure to disclose this information before trial constituted a violation of Alaska Criminal Rule 16 (the rule governing pre-trial discovery). See Bosti c v. State, 805 P.2d 344, 348 (Alaska 1991), where the supreme court held that a mistrial is the presumptive remedy for a discovery violation that comes to light during trial.
The trial judge agreed with the defense attorney that the State should have disclosed this information earlier - but the judge denied the defense attorney's motion for a mistrial. And the judge did not allow the defense attorney to pursue his motion to suppress the alleged apology based on the officer's failure to record it. Instead, the trial judge decided to deal with these two problems by instructing the jurors to ignore the officer's testimony that Crane had apologized for being drunk.
The jury convicted Crane, and he now appeals. For the reasons explained in this opinion, we conclude that the trial judge's handling of this situation constituted reversible error - and that Crane is therefore entitled to a new trial.
A more detai led look at the underlyi ng facts
The criminal complaint against Crane was drafted by Kenai Police Officer Casey Hershberger, the officer who arrested Crane. In this complaint, Hershberger alleged that Crane had "apologized for driving drunk." But the discovery materials that the State supplied to Crane's defense attorney did not include any information about this alleged apology - neither in a police report nor in the recordings of Crane's arrest and DUI processing at the police station.
On the morning that Crane's trial began, Crane's attorney alerted the trial judge that the State's discovery materials contained nothing about the alleged apology that was referred to in the complaint. The defense attorney asked the trial judge to order Hershberger to review the recording of the DUI processing, so that Hershberger would not misrepresent the evidence by testifying about an "apology" that was not there.
Even though the prosecutor did not dispute the defense attorney's assertion that the tape contained nothing about an apology for driving drunk, the trial judge refused to order Officer Hershberger to review the tape. Instead, the judge simply said, "After the last trial, I hope everyone learned about prepping their ...