Opinion
A-13026 7054
04-19-2023
ANDY WILLIAMS CAMERON JR., Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Emily L. Jura, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Patricia L. Haines (initial brief) and Hazel C. Blum (supplemental brief), Assistant Attorneys 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UNPUBLISHED See Alaska Appellate Rule 214(d)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, Trial Court No. 1KE-17-00056 CR First Judicial District, Ketchikan, William B. Carey, Judge.
Appearances: Emily L. Jura, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Patricia L. Haines (initial brief) and Hazel C. Blum (supplemental brief), Assistant Attorneys General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
MEMORANDUM OPINION
ALLARD. JUDGE
Andy Williams Cameron Jr. was convicted, following a bench trial, of multiple counts of first-degree sexual abuse of a minor, second-degree sexual abuse of a minor, possession of child pornography, and unlawful exploitation of a minor, after his roommate discovered child pornography on Cameron's cell phone and contacted the police. Cameron raises three claims on appeal.
AS 11.41.434(a)(1), AS 11.41.436(a)(2), AS 11.61.127, and AS 11.41.455(c)(1), respectively.
First, Cameron argues that the superior court erred in denying his motion to dismiss the indictment. Cameron moved to dismiss the indictment on the ground that the prosecutor violated the best evidence rule (Alaska Evidence Rule 1002) when he told the grand jurors that they did not need to look at the photographs and videos that were introduced into evidence at the grand jury hearing and that they could instead rely on the detective's description of the contents of the photographs and videos. For the reasons explained here, we conclude that any violation of the best evidence rule was harmless, because Cameron has not alleged (much less shown) that the detective's description of the photographs and videos was inaccurate.
Second, Cameron argues that the superior court erred in denying his motion to suppress the photographs and videos found on his cell phone. He argues that the magistrate judge lacked probable cause to issue a search warrant because the State failed to establish that Cameron's roommate, who first reported Cameron's conduct to police, was a citizen informant. We have reviewed the testimony presented to the magistrate and we conclude that it was sufficient to establish that Cameron's roommate was a citizen informant. We therefore reject this claim.
Third, Cameron argues that the superior court erred in failing to merge the possession of child pornography convictions with the unlawful exploitation of a minor convictions, which were based on the same underlying conduct. The State concedes that these convictions should have merged. We find this concession well-founded and we therefore remand this case to the superior court for merger of the convictions and resentencing.
Background facts and proceedings
In early 2017, twenty-five-year-old Andy Cameron lived in a Ketchikan home with Tearza Dundas and her infant son. On February 1, 2017, Cameron, Dundas, and her child went swimming at the local pool. Cameron left his cell phone in the cupholder attached to the stroller that Dundas's child was in, and when Dundas picked up her towel off the stroller's handlebars, it caused the cell phone screen to activate, revealing photographs of nude children. Dundas got out her own phone and took several photographs of the images on Cameron's phone.
After talking to a friend about what she should do, Dundas went to the Ketchikan Police Department approximately a week later, and spoke to a police officer. She showed the officer the photographs that she had taken of the images on Cameron's phone. Based on this information, Ketchikan Police Detective Joshua Workman obtained a search warrant for Cameron's cell phone, computer, and other electronic devices.
When the warrant was executed, the police found four videos and ninetyeight photographs depicting child pornography on Cameron's cell phone. Two of the videos showed Cameron touching the penis of and performing fellatio on a young toddler, J.A., a child he had babysat. The other two videos showed Cameron touching the penis of and performing fellatio on a seven-year-old boy, A.H., another child he had babysat.
Based on this evidence, Cameron was indicted on three counts of first-degree sexual abuse of a minor, one count of second-degree sexual abuse of a minor, four counts of unlawful exploitation of a minor, and twelve counts of possession of child pornography.
AS 11.41.434(a)(1), AS 11.41.436(a)(2), AS 11.41.455(c)(1), and AS 11.61.127(a), respectively.
Prior to trial, Cameron unsuccessfully moved to (1) suppress the evidence derived from the search warrant, and (2) dismiss the indictment. Cameron then waived his right to a jury trial and proceeded to a bench trial. The court found Cameron guilty on all charges except one where the court found a photograph too difficult to discern to support a finding beyond a reasonable doubt.
At sentencing, the State agreed with Cameron that two of the first-degree sexual abuse of a minor convictions should merge because they were based on a continuous course of conduct captured on videos taken only a few minutes apart. The court agreed and merged those counts. Cameron did not request that any other counts merge, and the court did not merge any other counts. The court sentenced Cameron to a composite sentence of 61 years.
This appeal followed.
Why we affirm the superior court's denial of Cameron's motion to dismiss the indictment based on the best evidence rule
Cameron's first argument on appeal is that the superior court erred when it denied his motion to dismiss the indictment. Cameron's motion was based on the "best evidence rule," codified in Alaska as Evidence Rule 1002, which provides that "[t]o prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required."
Cameron argued in his motion, and maintains on appeal, that this rule was violated during the grand jury proceedings in his case. For the reasons we are about to explain, we conclude that any violation of the best evidence rule did not require dismissal of the indictment.
The State's case at grand jury was presented through Detective Workman, who testified about the contents of the photographs and videos that formed the core of the State's evidence. Although the prosecutor technically introduced the photographs and videos into evidence, the prosecutor never published - i.e., showed - the photographs and videos to the grand jury. Instead, the photographs were kept in a binder, which the prosecutor told the grand jurors they could review during deliberations. The prosecutor made clear, however, that the grand jurors were not required to look at the photographs or to watch the videos. The prosecutor expressly told the grand jurors that "[n]obody is going to be forced to watch these things," and the prosecutor instructed the grand jurors that they could "base [their decision] on the testimony." According to the prosecutor, "[i]f there's a question in your mind about what you need to look at . . . then you can do that. And that's going to be an individual preference for each grand juror."
After Detective Workman's testimony, the prosecutor asked if any of the grand jurors would like him to publish the videos. After seeing no hands, the prosecutor told the grand jurors that Detective Workman was going to take the videos and they would not be with the grand jury for deliberations. The prosecutor noted, however, that "[i]f anyone has a request for these to view them, let us know, we'll come back in here and we'll play them."
The grand jury retired for deliberations with the binder of photographs. It is unknown whether any of the grand jurors looked at the binder. The record is clear, however, that there was no request to review the videos. The grand jury returned a true bill on all counts.
Cameron subsequently moved to dismiss the indictment, arguing that the prosecutor's instructions to the grand jury violated the best evidence rule (Alaska Evidence Rule 1002). The superior court denied the motion, and Cameron now appeals that ruling. He argues that Detective Workman's testimony was improper and violated the best evidence rule because "the contents of the videos and images" that formed the basis for the State's case "needed to be established through the contents of the videos and images themselves" and "not through [a] witness's testimony describing their content." Cameron further argues that this violation of the best evidence rule rendered Detective Workman's testimony inadmissible, and he asserts the indictment should have been dismissed because there was insufficient evidence to support the indictment without the detective's testimony.
We begin by noting that the photographs and videos were technically admitted into evidence during the grand jury proceedings, which arguably means that the literal terms of Evidence Rule 1002 were satisfied. We acknowledge, however, that the prosecutor's instructions to the grand jury likely had the effect of discouraging the grand jurors from personally reviewing the physical evidence, and that this violated the spirit of the rule, if not its literal directive. We note that the prosecutor was careful to inform the jury that they could review the evidence if they desired, but in doing so, he referred to this decision as an "individual preference." We think it is obvious why most people would hesitate to announce to their peers an "individual preference" to view child pornography and videos of child sexual abuse. We therefore assume, for the sake of deciding this case, that the prosecutor violated Evidence Rule 1002.
After briefing was complete in this case, we sought supplemental briefing on the question of whether Evidence Rule 1002 applies to grand jury proceedings. Both parties agree that it does.
The question we must now address is whether that violation was prejudicial - i.e., whether it required dismissal of the indictment. Cameron does not discuss the question of prejudice at length in his brief, but this Court has set forth a test for determining whether the admission of improper evidence requires dismissal of the indictment. Under this two-part test, a court "subtracts the improper evidence from the total case heard by the grand jury and determines whether the remaining evidence would be legally sufficient to support the indictment. If the remaining evidence is legally sufficient, the court then assesses the degree to which the improper evidence might have unfairly prejudiced the grand jury's consideration of the case." Thus, we understand Cameron to argue that the superior court should have dismissed the indictment because the evidence that the State presented to the grand jury was legally insufficient without Detective Workman's improper testimony.
Stern v. State, 827 P.2d 442 (Alaska App. 1992).
Id. at 445-46.
We conclude, however, that dismissal under these circumstances would be inconsistent with the underlying purpose of the best evidence rule. As the well-known treatise McCormick on Evidence explains, the purpose of the best evidence rule is not to seek the best evidence or the original document "as an end in itself." Rather, the "purpose is to secure the most reliable information as to the contents of the documents, when those [contents] are disputed." For this reason, McCormick suggests that "when an attack is made on appeal on the judge's admission of secondary evidence, . . . the reviewing tribunal should ordinarily make inquiry of the complaining counsel, 'Does the party whom you represent actually dispute the accuracy of the evidence received as to the material terms of the writing?'" The treatise goes on to explain that if "counsel cannot assure the court that such a good faith dispute exists, it seems clear that any departure from the regulations in respect to secondary evidence is likely to be harmless error, or not error at all." In other words, to establish reversible error based on an alleged violation of the best evidence rule, a defendant must assert that they have been prejudiced by the reliance on secondary evidence over the best evidence.
2 Kenneth S. Broun et al., McCormick on Evidence § 243.1, at 177 (8th ed. 2020).
Id.
Id.
Id. McCormick cites the following five cases in support of this proposition: Myrick v. United States, 332 F.2d 279, 282-83 (5th Cir. 1963) (holding that it was not error to admit photostatic copies of checks in absence of suggestion to trial judge that they were incorrect); Branch Banking & Trust Co. v. Jerry C. Wardlaw Constr., Inc., 2015 WL 5680378, at *4 (S.D. Ga. Sept. 25, 2015) (unpublished) (dismissing defendants' challenge to copies of original documents where they raised no question as to the authenticity or accuracy of the documents); Williams v. State, 386 So.2d 538, 540 (Fla. 1980) (deciding that although the contents of a note were directly in issue, and therefore the court should have required the state to explain the absence of the original, the error was clearly harmless as defendant did not contest that the note identified the defendant as a perpetrator); Russell v. State, 844 So.2d 725, 728 (Fla. Dist. App. 2003) (finding error harmless where witness testified to content of videotape instead of showing the tape to the jury because contents confirmed by four other witnesses); Indiana Bell Tel. Co., Inc. v. O'Bryan, 408 N.E.2d 178, 188 (Ind. App. 1980) (finding no error in admitting re-recorded duplicate tapes when plaintiff did not claim that they were incorrect or that they contained material omissions).
In the current case, Cameron has not alleged that Detective Workman's descriptions of the photographs and videos were inaccurate or otherwise misleading. Nor does there appear to be any reason to believe that they were inaccurate or misleading. We note that Detective Workman also testified at Cameron's bench trial, again describing the contents of the photographs and videos. Cameron objected to this testimony, arguing such testimony violated the best evidence rule. The trial judge overruled the objection, after noting that he also intended to personally review the photographs and videos. The trial judge then proceeded to convict Cameron of the charged offenses, strongly suggesting that there was no material difference between Detective Workman's descriptions and the trial judge's independent review of the original photographs and videos. Our review of the record on appeal further confirms that Detective Workman's descriptions of the photographs and videos were accurate, neutral in tone, and not inflammatory. Accordingly, given the absence of any alleged prejudice, we conclude that the superior court did not err when it denied Cameron's motion to dismiss the indictment based on the alleged violation of the best evidence rule.
We caution prosecutors and trial courts, however, that our decision should not be read as an endorsement of what the prosecutor did here. Like petit jurors, grand jurors have a duty to impartially evaluate the evidence and to render a fair decision. This duty requires grand jurors to review the evidence in a case, even when the evidence is offensive or when viewing the evidence may be unsettling. While we ascribe no bad faith to the prosecutor in the current case, we nevertheless emphasize that prosecutors should not encourage grand jurors to abdicate this duty, regardless of how difficult it may be in a particular case.
See United States v. Storm, 915 F.Supp.2d 1196, 1206 (D. Or. 2012), aff'd, 612 Fed.Appx. 445 (9th Cir. 2015) ("Showing images of child [sexual] abuse to jurors is inherent to the process of prosecuting an individual for possessing such images.... [I]t is the duty of jurors to see and weigh relevant evidence, even disturbing evidence, when sitting in judgment of their fellow citizens.").
Why we affirm the denial of Cameron's motion to suppress evidence from his cell phone
Cameron next argues that the superior court erred in denying his motion to suppress. Cameron's motion argued that the warrant to search his phone was improperly granted because the warrant relied on information from a criminal informant or someone akin to a criminal informant and the State failed to establish the informant's veracity. He repeats that argument on appeal.
The search warrant was granted based on testimony provided to the magistrate judge by Detective Workman. Detective Workman informed the magistrate that Cameron's roommate (Detective Workman did not provide Dundas's name) had come into the police department earlier that evening after shehad seen child pornography on Cameron's phone. Detective Workman stated that the roommate had taken photographs of the images on the phone and provided those photographs to Detective Workman. He further explained that she had seen the pictures a week ago, but that she had not brought them in sooner because she was terrified of Cameron.
"When a search warrant application rests on hearsay information, the State must establish (1) that each of its hearsay informants is generally a credible source of information, and (2) that each informant obtained their present information in a reliable way." On appeal, Cameron argues that the State failed to establish that Dundas was a credible source of information.
Wilson v. State, 82 P.3d 783, 783 (Alaska App. 2003) (citing State v. Jones, 706 P.2d 317, 324-25 (Alaska 1985)).
See Stam v. State, 925 P.2d 668, 670 (Alaska App. 1996) (noting that it is the State's burden to prove that an informant is credible).
The law distinguishes between two types of informants: criminal informants (sometimes called police informants) and citizen informants. A criminal informant's veracity is presumptively suspect and must be affirmatively demonstrated.It can be established "by information showing that the informant has previously given reliable information, by relying on a statement that is against the informant's own penal interest, or by corroboration of a great many details from the informer's story."
Lloyd v. State, 914 P.2d 1282, 1286 (Alaska App. 1996) (citing Effenbeck v. State, 700 P.2d 811, 813 (Alaska App. 1985)).
Id.
Id. (citations omitted).
By contrast, "a more relaxed rule applies '[w]hen information is provided by a cooperative citizen, or an informant not from the criminal milieu[,]' since '[a]n ordinary citizen who reports a crime stands on a much different footing' than a police informant." To establish the credibility of a citizen informant, "the police need only verify 'some of the details of the information.'"
Id. (alterations in original) (quoting Erickson v. State, 507 P.2d 508, 517-18 (Alaska 1973)).
Id. (quoting Erickson, 507 P.2d at 518).
"Whether a particular informant's credibility should be subject to treatment under the relaxed standards governing citizen informants or the more rigid standards applicable to police informants depends on the extent to which the dangers typically associated with police informants arise in a given case." As we have recognized, "[t]he distinction between a citizen informant and a criminal informant does not turn on the bare facts of the informant's past." Rather, "the informant's status turns on the nature of the informant's involvement with the incident being investigated and his or her motivation for coming to the authorities[.]"
Id.
Gustafson v. State, 854 P.2d 751, 756 (Alaska App. 1993).
Id.
Here, the information provided about Dundas's identity and motives established her "as the kind of person who is likely to speak the truth" - i.e., as a citizen informant. Although Detective Workman did not provide Dundas's name to the court, he identified her as Cameron's roommate, explained how she discovered the child pornography on Cameron's phone, and told the court that she had waited a week to report the crime because she was scared of Cameron. We agree with the superior court that this information was sufficient to establish that Dundas was a citizen informant.
See Lloyd, 914 P.2d at 1287.
Cameron's arguments to the contrary are unpersuasive. Cameron relies heavily on the fact that Detective Workman did not provide Dundas's name to the court, and instead referred to her only as "Cameron's roommate." Cameron argues that "Workman's decision not to identify [Dundas] is consequential, as this can give rise to an inference that her identity was kept secret in order to protect her status as a habitual criminal informant."
We have previously acknowledged that when the police know the identity of an informant and refuse to reveal that identity to the court, this raises the possibility that the informant is "a person whose indiscretions are tolerated by the police . . . in exchange for information and leads" - i.e., a criminal informant. But such an inference is not justified under the facts of this case. Although Detective Workman did not provide Dundas's name to the court, he identified her as Cameron's roommate and provided her living address to the court. Under these circumstances, Detective Workman's failure to provide Dundas's name to the court appears to have been an oversight, not an attempt to protect the identity of a criminal informant.
Stam v. State, 925 P.2d 668, 671 (Alaska App. 1996) (quoting 2 Wayne R. LaFave, Search and Seizure § 3.3(c), at 126 (3d ed. 1996)).
Cameron also argues that in addition to not providing Dundas's name, Detective Workman "did not assert that the informant was an individual in good standing with the law, or that she was not a paid or habitual informant, or that she had not asked for nor received any official benefit." But Cameron cites no cases to support the proposition that such information is required as a matter of course. Rather, what is required is "information concerning the informant's identity and motives [that] identifies the informant as the kind of person who is likely to speak the truth." Here, Detective Workman provided sufficient information about Dundas's identity and motives - namely that she was Cameron's roommate and had inadvertently stumbled across child pornography on his phone - for the magistrate to conclude that Dundas was the kind of person who was likely to speak the truth.
Lloyd, 914 P.2d at 1287.
Finally, we note that Cameron also argues that even if Dundas was a citizen informant, Detective Workman still failed to provide sufficient corroboration of her report. We find no merit to this claim. As this Court recently noted, "in the case of citizen informants, only minimal corroboration of 'some of the details' of the informant's report is necessary to establish probable cause; we have not required that the corroborated facts be independently incriminating." Here, Dundas provided photographs of the child pornography on Cameron's phone. This was sufficient "minimal corroboration" to establish probable cause.
King v. State, 487 P.3d 242, 246-47 (Alaska App. 2021) (citation omitted).
We therefore affirm the superior court's denial of Cameron's motion to suppress the evidence derived from the execution of the search warrant.
Why we remand this case for resentencing
Cameron was indicted and convicted on twelve criminal counts based on the four videos found on his phone depicting him performing fellatio on and/or touching the genitals of A.H. and J.A. For each video, Cameron was indicted and convicted of three separate charges - one count for the sexual act depicted in the video, one count for unlawful exploitation of a minor, and one count for possession of child pornography.
At sentencing, the superior court merged two convictions for first-degree sexual abuse of a minor, Counts I and III, because these acts "involved the same victim" and "happened in close proximity in time." The court did not merge any other counts and the defense did not request any additional merger.
In summing up its reasoning for the composite sentence, the court stated, "I've tried to think of this in holistic terms as I split up the various counts and tried to figure out what to do here. The overall effect of this sentence will be to keep Mr. Cameron incarcerated for probably the rest of his life." The court then sentenced Cameron to a composite term of 61 years to serve.
On appeal, Cameron notes that this Court held in Thompson v. State that convictions for possession of child pornography should merge with convictions for unlawful exploitation of a minor. He thus argues that with each set of convictions associated with the four videos, the convictions for possession of child pornography should merge with the unlawful exploitation of a minor convictions. The State concedes error. Although Cameron did not raise this claim in the trial court, a violation of the Double Jeopardy Clause in Article I, Section 9 of the Alaska Constitution is a fundamental error "that may be raised for the first time on appeal." Having independently reviewed the State's concession, we find it to be well-founded.
Thompson v. State, 378 P.3d 707, 718 (Alaska App. 2016), rev'd on other grounds, State v. Thompson, 435 P.3d 947 (Alaska 2019).
Johnson v. State, 328 P.3d 77, 83-85 (Alaska 2014).
See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972) (noting that appellate courts must independently review a concession of error by the State).
Accordingly, we remand this case to the superior court with directions to merge the possession of child pornography and unlawful exploitation of a minor convictions associated with the four videos and to conduct a resentencing.
Conclusion
We REMAND this case to the superior court for merger of the counts discussed above and for resentencing. In all other respects, we AFFIRM the judgment of the superior court.