Putnam v. State , 1980 Alas. LEXIS 670 ( 1980 )

RABINO WITZ, Chief Justice,

concurring in part, dissenting in part.

I am in agreement with the court’s disposition of the grand jury and cross-appeal issues in the case at bar. In regard to the appropriate resolution of the question which pertains to the state’s failure to preserve the tapes, I would remand the case solely for the purpose of requiring the superior court to make the determination of what sanctions should be imposed against the state. As the court notes, the mere fact that the state’s failure to preserve the evidence in question resulted from good faith action, or inaction, does not render the state’s breach any less a violation of Criminal Rule 16 or AS 12.45.050-080.¹ In other words, prosecutorial bad faith is a sufficient, but not a necessary, factor for the imposition of sanctions. If substantial prejudice occurred, then sanctions will generally be warranted regardless of prosecutorial culpability.

Here the court finds a violation of Criminal Rule 16 and AS 12.45.060, and, although the record may be inadequate for assessment of the state’s culpability, I think we are able to adequately assess the prejudice to appellant Putnam. The tapes were of two interviews between the state’s two key witnesses — Investigator Hildreth and witness Toby Chastine. The defense turned, to a large extent, on the theory that the prosecution’s case was principally a combination of an overzealous investigator and a dishonest witness, testifying under the threat of criminal charges if his testimony did not implicate appellant. In his final argument, counsel for Putnam argued, in part:

That’s circumstances to show Chastine is lying. He’s a thief. He’s an embezzler. He works for a company; he takes over a company, and he subverts their contracts and works for the King 8 Inn. And he takes the money he earns from the King 8 Inn which should go to Put-man Services and pays back Putnam Services for the money he stole from him. Mr. Chastine, the bought witness, the immunized witness. Mr. Chastine’s got a good deal; he’s got a great deal.

The experts, Mr. Hildreth have discussed this testimony. He’s not going to say it wasn’t arson. He’s going to say, I believe beyond a reasonable doubt it was arson. He said, even though I’m not an electrical expert, even though I — we didn’t get an electrical expert to rule out electrical fires — he told you he ruled them out.... He didn’t want any electrical experts, because he doesn’t know what he’s talking about. He came up here two months after the fire, doesn’t know what happened at the fire; can guess, conjecture, and speculate; and he’s not going to change his opinion, because he’s going to get — by God, he’s going to get Wayne Putnam; ...

Mr. Chastine is a thief and a liar. And, as I said before, he’s the one that got— you know, he said, oh, gee, members of the jury — he said, I would have testified without an agreement; I’m a good guy; I’m doing my duty. It’s easy to say when there’s an agreement signed saying, we’re not going to prosecute you. Easy to say, oh, I don’t need this agreement. Well, why was there an agreement? Why? You know, what he is going to be prosecuted for —-for telling what stories is he is going to be prosecuted for? He’s going to be prosecuted for telling the story that doesn’t agree with what Mr. Hildreth and Mr. Michalski want — feel is the correct thing in this case. He’s got to say one thing; he’s trapped into it.

In view of the foregoing and this defense theory, it is clear that the tapes of the two interviews between Hildreth and Chastine, at which Chastine admittedly gave two almost completely inconsistent statements, would have been absolutely crucial to the defense. Given the “heavy burden” of demonstrating that Putnam has suffered no resulting prejudice and the strict application of the harmless error rule ip these cases,² I would conclude that Putnam sustained substantial prejudice as a consequence of the state’s loss of the tapes.³

1 . See ante at 43 & n.17.

2 . See ante at 44 n. 18.

3 . Since 1 think the specification of sanctions is best left to the sound discretion of the trial judge in the first instance, I do not regard an extended discussion of the available sanctions, or the principles guiding their selection, as appropriate at this point. See AS 12.45.080; Alaska R.Crim.P. 16(e); United States v. Quiovers, 539 F.2d 744, 746-48 (D.C. Cir. 1976); United States v. Bundy, 472 F.2d 1266, 1269 (D.C. Cir. 1972) (Leventhal, J., concurring); United States v. Perry, 471 F.2d 1057, 1062-64 (D.C. Cir. 1972); United States v. Bryant, 439 F.2d 642, 652-53 (D.C. Cir.), appeal after remand, 448 F.2d 1182 (D.C. Cir. 1971). Cf. People v. Zamora, 28 Cal.3d 88, 167 Cal.Rptr. 573, 615 P.2d 1361, 28 Crim.L.Rep. 2029 (Cal., Aug. 28, 1980); Uniform Rules of Criminal Procedure 421(e), 422(c).