Opinion
A-13484
08-17-2022
BENICIA VERNICE CUEVAS, Appellant, v. STATE OF ALASKA, Appellee.
Megan M. Rowe, Alaska Legal Drafting, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Michal Stryszak, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Third Judicial District, Trial Court No. 3AN-17-03909 CR Anchorage, Jack W. Smith, Judge.
Megan M. Rowe, Alaska Legal Drafting, Anchorage, under contract with the Office of Public Advocacy, for the Appellant.
Michal Stryszak, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Terrell, Judges.
MEMORANDUM OPINION
TERRELL, JUDGE
Benicia Vernice Cuevas was convicted, following a jury trial, of second-degree misconduct involving a controlled substance after she sold heroin to an informant during a controlled buy organized by the Anchorage Police Department. Cuevas now appeals her conviction, raising a single claim arising from the investigating officer's interaction with the informant who participated in the controlled buy.
Former AS 11.71.030(a)(1)(A) (2017).
The investigating officer testified that he offered the informant the opportunity to work with the police after he identified the informant's vehicle as stolen and detained him. According to the officer, when the informant got into the police car, audio recording equipment turned on, but before he started speaking with the informant, the officer manually turned off the audio recording. The officer explained that he wished to protect the informant's safety by making sure that no information about the informant's identity or their conversation could be improperly disclosed.
At trial, Cuevas argued that the officer's act of turning off the audio recording equipment equated to destroying evidence of the agreement reached between the officer and the informant. She asked the court to give the jury a Thorne instruction - i.e., an instruction that the jury should infer that the audio recording of the officer's conversation with the informant would have been favorable to her.
See Thorne v. Dep 't of Pub. Safety, 774 P.2d 1326, 1330-31 (Alaska 1989) (holding that the State's failure to preserve videotape of driver's field sobriety test violated his due process rights, and that the appropriate remedy on remand was to presume that the destroyed evidence would have been favorable to the driver).
On appeal, Cuevas claims that the superior court erred by not giving the jury a Thorne instruction. But the State generally does not have a duty to collect all evidence related to a crime, and the State's duty to preserve evidence applies only to evidence it has actually gathered. Thus, in Selig v. State, we held that the troopers' failure to audio record part of the defendant's processing for driving under the influence did not entitle the defendant to a Thome instruction. And in Swanson v. Juneau, we noted that the rule set out in Thorne did not apply to the failure by the police to video record the defendant's processing for driving under the influence because no evidence was destroyed. We similarly conclude that Cuevas was not entitled to a Thorne instruction because the officer did not destroy evidence of his conversation with the informant.
Selig v. State, 286 P.3d 767, 772 (Alaska App. 2012).
Id.
Swanson v. Juneau, 784 P.2d 678, 680 n.3 (Alaska App. 1989).
Cuevas also raises a new argument for the first time on appeal - that this Court should require law enforcement to audio record any oral agreement made with an informant. Cuevas argues for an expansion of the rule established by the Alaska Supreme Court in Stephan v. State, which requires law enforcement to record custodial interrogations in places of detention. Because Cuevas did not raise this argument in the trial court, she can only obtain relief if she can show plain error.
See Stephan v. State, 711 P.2d 1156, 1162 (Alaska 1985).
See Atkinson v. State, 869 P.2d 486, 493-94 (Alaska App. 1994); see also Adams v. State, 261 P.3d 758,773 (Alaska 2011) (explaining that plain error is error that is (1) not the result of an intelligent waiver or tactical decision not to object, (2) obvious in the sense that it "should have been apparent to any competent judge or lawyer," (3) affects substantial rights, and (4) is prejudicial).
We decline to find plain error. As an initial matter, we note that the rule adopted in Stephan was "meant to protect the due process interests of the person interviewed," to ensure adequate protection of the right against self-incrimination, to protect against the risk of involuntary confessions, and ultimately to preserve the defendant's right to a fair trial. As this Court has previously written, "The Stephan court's focus on the problem of involuntary confessions is understandable... [because] involuntary confessions directly implicate the integrity of the verdict at trial." Here, Cuevas has not shown that the officer's failure to record the oral agreement with the informant poses the same type of obvious threat to verdict integrity.
Atkinson, 869 P.2d at 494.
See Shindle v. State, 731 P.2d582,584 (Alaska App. 1987) ("[T]he court's discussion [in Stephan] makes it clear that the court's primary concern was with the problem of involuntary confessions . . . ."); Stephan, 711 P.2d at 1159-60 ("[R]ecording, in such circumstances, is . . . essential to the adequate protection of the accused's right to counsel, his right against self incrimination and, ultimately, his right to a fair trial."); id. at 1161 ("[A] recording also protects the public's interest in honest and effective law enforcement, and the individual interests of those police officers wrongfully accused of improper tactics.").
Shindle, 731 P.2d at 585.
Moreover, declining to require the police to record conversations with informants is consistent with this Court's prior decision in Atkinson v. State. In that case, this Court declined to extend the Stephan recording rule, which protects the due process rights of defendants, to require law enforcement to record their preliminary discussions with potential third-party witnesses.
See Atkinson, 869 P.2d at 493-94.
Id.
Given the state of the case law set out above, the superior court did not commit obvious error in failing to sua sponte rule that police must record conversations with informants, and Cuevas is therefore not entitled to relief on a plain error basis.
The judgment of the superior court is AFFIRMED.