author: MANNHEIMER, Judge.

text:
    Adam B. HAMILTON, Appellant, v. STATE of Alaska, Appellee.
    No. A-7762.
    Court of Appeals of Alaska.
    Nov. 22, 2002.
    Rehearing Denied Dec. 19, 2002.

      Marcia E. Holland, Assistant Public Defender, Fairbanks, and Barbara K. Brink, Public Defender, Anchorage, for Appellant.
    John A. Seukanec, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

MANNHEIMER, Judge.

Adam B. Hamilton appeals his convictions for first-degree burglary and first-degree murder. He contends that most of the evidence against him was obtained as a result of an unlawful investigative stop. He also contends that, during his trial, the prosecutor improperly referred to his post-arrest silence, and that the trial judge should have ordered a mistrial because of the prosecutor's comments. Finally, Hamilton contends that the trial judge improperly refused to allow the jury to consider Hamilton's proposed defenses of self-defense and heat of passion. For the reasons explained here, we reject each of these contentions and affirm Hamilton's convictions.

In addition, Hamilton argues that his sentence should be vacated; he contends that the sentencing judge, like the prosecutor, relied on Hamilton's post-arrest silence. We do not agree with Hamilton's characterization of the sentencing judge's remarks, and we therefore affirm Hamilton's sentence.

Underlying facts of the homicide

David Dixon, his wife Rebecca, and their three-year-old daughter lived at 385 Winter Street in Fairbanks. This residence is located a few miles north of the downtown area, just off the Old Steese Highway near Chena Hot Springs Road. The Dixons shared the residence with another couple, Jason Starkey and Heather Woods.

The Dixons fell asleep watching television around 11:00 p.m. on the night of November 28, 1999. Shortly before 2:80 a.m., Rebecca Dixon awoke to find her husband struggling with an intruder-"a tall figure wearing a leather jacket". The intruder stabbed David Dixon repeatedly with a long knife and threw him around the room like a "rag doll". Rebecca Dixon could not see the intruder's face because he was wearing a stocking cap or ski mask, and because he had a bandana across his face.

As soon as Rebecca Dixon realized the danger, she grabbed her daughter, who had been sleeping on a bed at the foot of the Dixons' bed, and shielded her daughter's head and ears "so she couldn't hear or see what was happening". Rebecca's movement attracted the attention of her husband's attacker. He stopped stabbing her husband and stared at her for a moment. Then the attacker dropped David Dixon in front of a couch, stabbed him a couple more times in the back, and ran out of the house.

Rebecca ran screaming to the loft where Jason Starkey and Heather Wood slept. While the two women tried to stop the bleeding, Starkey called 911. The 911 call was received at 2:82 a.m.

A few minutes later, when the ambulance arrived, Rebecca Dixon telephoned her husband's best friend, Adam Hamilton, because she knew that Hamilton would be the 'first person that her husband would call if he needed help. But no one was home at Hamilton's house. Rebecca left a message on Hamilton's answering machine.

David Dixon had been stabbed twenty-eight times, primarily in the head, neck, chest, and back. He died from his wounds.

A considerable amount of physical evidence tied Hamilton to this crime. His clothing was stained with fluids that probably came from Dixon's body. A blood-stained stocking cap and a blood-stained bandana were found in his vehicle. Hamilton's jacket was missing an "airborne pin" or "parachute badge" (a lapel or garment pin in the shape of two wings); Rebecca Dixon found this pin on the floor of her residence, near her husband's body. And Hamilton's shoes matched two bloody footprints that were found on the floor and carpet of the Dixon residence.

From the beginning of the trial, Hamilton conceded that he was the one who entered the house and stabbed Dixon. Hamilton suggested, however, that Dixon had let him into the house and that therefore the entry was not a burglary. Hamilton also suggested that Dixon must have done something to spark the confrontation, and that therefore Hamilton was not guilty of first-degree murder but rather a lesser degree of homicide. The jury rejected these suggestions and con-viected Hamilton of first-degree burglary and first-degree murder. .

The legality of the investigative stop

As just explained, the 911 call was received at 2:82 a.m. Almost immediately, news of the break-in and stabbing was broadcast over the radio frequencies used by the state troopers and the Fairbanks police.

Alaska State Trooper Sgt. Kevin Kemp was conducting a DWI traffic stop on the west side of town, in the parking lot of the Safeway store at the corner of University and Airport Roads. Leaving his DWI suspect in the custody of a backup officer, Kemp started driving toward the crime scene. He headed east on Airport Road toward the Steese Highway. When he reached the Steese, he turned north, heading toward Chena Hot Springs Road and the Dixon residence.

Given the time of day, traffic was light as Kemp drove through Fairbanks. In fact, as Kemp headed north on the Steese Highway, he saw only two non-police vehicles after he passed Trainor Gate Road. These two vehicles were a snow grader and a four-door sedan, both headed south. That is, these two vehicles were traveling in the opposite direction from Kemp-away from the crime scene.

Kemp saw these two vehicles in front of him (%.e., north of him) as he crossed Farmers Loop Road. The sedan was passing the snow grader and was illuminated by the grader's lights. Kemp observed that the sedan had a "whale tail" (¢.e., a spoiler) mounted on its trunk and had a long antenna in back. Kemp also saw that the driver had long hair and was sitting tall in the seat, but he could not tell what the driver was wearing, or whether the driver was a man or a woman.

Kemp wanted to record the license plate number of the sedan (so that the authorities could contact the driver later), but he was unable to see the sedan's license plate. Kemp knew that there were at least two Fairbanks police cars behind him so, using his radio, he asked these officers to record the license plate number of the sedan that was headed toward them. Kemp broadcast this request for assistance at 2:42:30 a. m.that is, ten minutes after the 911 call.

Officer Pearl J. Turney was one of the Fairbanks police officers who was behind Kemp. She had been patrolling the central area of Fairbanks when she heard the dispatch report of the break-in and stabbing. Turney drove out the Steese Highway to where it intersects with Farmers Loop Road, and there she set up an observation post.

Turney was 'in this location when she heard Kemp's request for assistance. From her vantage point, Turney could see the snow grader and the sedan that Kemp had described. After the sedan passed her, Turney pulled onto the Steese Highway and headed south, following the sedan.

As Turney got closer to the sedan, she saw that its license plate was covered with snow, making it impossible to read the license plate number. She advised dispatch that the license plate was obscured, and she described the sedan's make and model.

As Turney followed the sedan, it traveled south to the Johansen Expressway and then turned west. When Turney informed her fellow officers that the sedan had left the Steese Highway and was now traveling west on the Johansen, her supervisor (Sgt. Matthew Soden) modified Kemp's request for the license plate number. Soden told her to wait for backup, then stop the sedan and interview its occupants.

Turney continued to follow the sedan. The car left the Johansen Expressway and turned onto College Road (still heading west). Tur-ney now had backup from Officer Gertha Wells, who had reached College Road in time to see the sedan and Turney's patrol car drive past. Turney and Wells conferred and decided to stop the sedan near the corner of College and Marietta.

When Turney activated her overhead lights, the driver of the sedan pulled onto Marietta and stopped. The time was 246 am.-fourteen minutes after the 911 call, and less than four minutes after Kemp radioed his request for assistance in identifying the sedan.

Both Turney and Wells parked their patrol cars, and Turney approached the sedan on foot while Wells provided cover. When Tur-ney reached the rear of the sedan, she brushed the snow from the license plate so that the license plate number was visible. Wells immediately radioed the number to their dispatcher.

Turney continued walking toward the front of the sedan, on the driver's side. As she neared the driver's door, she looked through the window and saw that the driver's hands were covered with blood. Turney backed away from the car, drew her sidearm, and ordered the driver to get out of the car with his hands up and in plain sight.

The driver was Adam Hamilton. The ensuing searches of his person, his clothing, and his vehicle yielded the majority of the State's evidence linking Hamilton to the burglary/homicide.

The question is whether the police had the right to stop Hamilton's car. The State offers two justifications for this traffic stop.

First, Alaska law-AS 28.10.171(b)-re-quires drivers to maintain their license plates "in a location and condition so as to be clearly legible". The State argues that because the license plate of Hamilton's vehicle was covered by snow, the police were authorized to stop him and cite him for this offense. Second, the State argues that the police were authorized to stop Hamilton because they had reason to believe that he was a potential witness-ie, reason to believe that he might have observed something that would be pertinent to their investigation of the break-in and stabbing.

(a) Whether the stop of Hamilton's vehicle was justified because of Hamilton's violation of AS 28.10.171(b)

Hamilton acknowledges that his license plate was covered with snow at the time he was stopped. However, he points out that none of the officers involved in the traffic stop ever claimed that they requested or performed the stop so that Hamilton could be cited for driving with an illegible license plate. Instead, all of the officers testified that Hamilton was stopped because they wanted to find out if he knew anything or had seen anything that would further their investigation of the break-in and stabbing. Because the officers did not subjectively rely on the illegible license plate as a basis for their actions, Hamilton argues that the State is barred from relying on this after-the-fact justification for the stop.

But, in fact, the State is allowed to rely on an after-the-fact justification, so long as the facts known to the officers at the time of the investigative stop are sufficient to establish the legal foundation for this justification. We decided this point of law in Beauvois v. State, 837 P.2d 1118 (Alaska App.1992). In Bequvois, we held that the legality of an investigative stop hinges on an objective test: whether the facts known to the officers established a legitimate basis for the stop. The officers' subjective theories as to why the stop was proper are irrelevant.

Hamilton contends that we receded from this position in Castle v. State, 999 P.2d 169 (Alaska App.2000). But Hamilton has misconstrued our holding in that case.

In Castle, a police officer attempted to conduct an investigative stop of the defendant. Fleeing from the officer, the defendant committed a minor offense: running in the middle of the street, a violation of a municipal ordinance regulating pedestrian traffic. We held that the officer's initial effort to conduct an investigative stop had been illegal. The remaining question was whether the State could rely on Castle's ensuing violation of the municipal ordinance to justify the ultimate stop. We said no; the State could not rely on Castle's act of running in the street to justify the stop-because Castle's violation of the pedestrian ordinance was "the direct result of [the officer's] unjustified attempt to seize [Castle]", and because "the policy of the exclusionary rule would be undermined if we allowed Castle's conduct to form the justification for his ensuing arrest".

Hamilton, like the defendant in Castle, committed a minor infraction of the law in the sight of police officers, but there the resemblance ends. Hamilton did not cover his license plate with snow in response to illegal conduct by the police. Thus, Hamilton's case is governed by the rule we announced in Beqauvois: the legality of the traffic stop is determined by an objective assessment of the facts known to the officers at the time they conducted the stop.

As Officer Turney was following Hamilton's vehicle on the Johansen Expressway, she radioed that she could not see Hamilton's license plate number because the license plate was covered with snow. That is, Turney knew that Hamilton's license plate was covered with snow before she commenced the seizure of Hamilton's vehicle-4.e., before she turned on her overhead lights and signaled Hamilton to stop at the corner of College and Marietta.

This fact is sufficient to establish the legality of the ensuing traffic stop under federal law. -In Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), the Supreme Court rejected the doctrine of the "pretext" traffic stop and held instead that, no matter what may have prompted police officers' interest in a vehicle or its occupants, a traffic stop is legal so long as the officers had probable cause to believe that a violation of the traffic code (or any other violation of the law) had occurred in their presence.

Here, Officer Turney had probable cause to believe that Hamilton's vehicle was being driven in violation of AS 28.10.171(b), the statute requiring that license plates be maintained in a legible condition. It is a misdemeanor to violate this statute. Thus, Turney was authorized to stop Hamilton's vehicle and either arrest him or cite him for this violation. And, as we held in Beau vois, it is irrelevant that Turney did not actively consider or subjectively rely on this basis for the traffic stop.

- Hamilton suggests (although he does not directly argue) that we should reject Whren as a matter of state constitutional law and then invalidate his traffic stop. Hamilton points out that even if. his violation of the license plate law might conceivably have justified the police in stopping his vehicle, the fact of the matter is that the officers' true motive for stopping Hamilton was to investigate the break-in and stabbing, not to enforce the license plate law. Thus, Hamilton contends, we should not allow the State to rely on the "pretext" of Hamilton's violation of the license plate law.

We conclude that Hamilton's ease does not require us either to accept or reject Whren as a matter of Alaska constitutional law. We reach this conclusion because we hold that the police were justified in stopping Hamilton's car as part of their investigation of the break-in and stabbing.

(b) The stop of Hamilton's vehicle was justified as am investigative stop of a potential witness

Under the test for investigative stops adopted by our supreme court in Coleman v. State, 553 P.2d 40 (Alaska 1976), the police must have "reasonable suspicion that imminent public danger exists or [that] serious harm to persons or property has recently occurred". As this Court emphasized in State v. G.B., 769 P.2d 452 (Alaska App.1989),

the Coleman rule is ultimately rooted in common sense and practicality. In each case, compliance with Coleman's requirement of recently committed serious harm must be evaluated with a view toward the fundamental concern of the Coleman court: the risk that an investigative stop based on mere suspicion may be used as a pretext to conduct a search for evidence. As indicated in Coleman, the fundamental inquiry in each case is whether "a prompt investigation [was] required ... as a matter of practical necessity."

G.B., 769 P.2d at 456.

In Beauvois v. State and Metzker v. State, we upheld investigative stops based on the need to identify and interview witnesses who may have information pertinent to the investigation of a recently committed serious crime-even when there is no reason to believe that the people who are being stopped committed the crime. We reach a similar conclusion here.

In the present case, when the police stopped Hamilton's car, they knew that an intruder had entered a residence in the middle of the night, had perpetrated an apparently fatal assault, and then had fled. The police also knew that the assailant had been at large for approximately fifteen minutes. (The 911 call was received at 2:82 a.m.; Hamilton's car was pulled over at 2:46 a.m.)

As Hamilton points out in his brief, there were several routes that the assailant might have taken when fleeing the scene of the crime. But the main route from the Dixon residence to the city center was the Steese Highway. Sgt. Kemp observed Hamilton's car traveling south (away from the Dixon residence) on the Steese Highway at 2:42 am ten minutes after the 911 call. Kemp testified that, aside from the snow grader and the police cars, there were no other vehicles on the Steese Highway between Trainor Gate Road (the north part of central Fairbanks) and the Dixon residence.

Kemp could reasonably suspect that the people in this southbound vehicle had seen something-a person or another vehicle, for example-that might prove important to the investigation of the just-committed burglary and assault. But as Kemp continued north toward the Dixon residence, he watched these potential witnesses drive out of sight to the south. He therefore broadcast a request for assistance-not asking the Fairbanks police to stop the vehicle, but merely to record its license plate number so that the authorities could contact the driver later.

Hlad the Fairbanks police simply recorded Hamilton's license plate number and allowed him to drive on unimpeded, there would have been no Fourth Amendment issue in this case. But when Officer Turney got behind Hamilton's car, she saw that Hamilton's license plate was covered with snow, thus making it impossible to obtain the license plate number without stopping the vehicle.

To summarize the situation at that point: A serious assault had been committed in the middle of the night-an assault which, given the nature and the number of David Dixon's wounds, threatened to become a homicide at any moment. The state troopers and the Fairbanks police responded within minutes. As they made their way to the crime scene, they saw only one private vehicle driving toward central Fairbanks, away from the neighborhood of the crime. The officers had reason to believe that the occupant(s) of this car might have seen something that would aid their investigation. But because the license plate of this vehicle was covered with snow, it was not possible to identify the vehicle and contact the driver later. If the police were to speak with these potential witnesses, it had to be right then.

Under these circumstances, we conclude that the Coleman rule was satisfied: "a prompt investigation [was] required ... as a matter of practical necessity". We therefore uphold the legality of the investigative stop under Beawvois and Metzker-without regard to the independent ground that driving with a snow-covered license plate is a misdemeanor under AS 28.10.171(b) and AS 28.40.050(a)-(b).

The defense request for mistrial after the prosecutor elicited testimony that Hamilton failed to express concern for anyone else following the traffic stop

Three of the State's witnesses described Hamilton's behavior at the scene of the stop and, later, at the hospital (where he was taken for treatment of a wound to his thigh).

Officer Turney described Hamilton as "very calm" and cooperative during the traf-fie stop, even after he was ordered out of the car and handcuffed. Another officer who arrived shortly after the stop agreed that Hamilton was "calm and unemotional". Tur-ney further testified that, during the ride to the hospital, Hamilton expressed concern about his wound (he apparently was having difficulty either feeling or wiggling his toes), but he did not express concern about anyone else. And Sergeant Kemp, who saw Hamilton after he arrived at the hospital, testified that Hamilton was "fairly calm".

Hamilton's attorney conceded that the State was entitled to introduce evidence of Hamilton's demeanor-4i.e, evidence that Hamilton had been calm and unemotional. But he objected to Officer Turney's testimony that Hamilton had not expressed concern for anyone else. The defense attorney argued that this testimony was a comment on Hamilton's right to remain silent about the crime for which he was being investigated. He asked the trial judge either to declare a mistrial or to give a cautionary instruction to the jury.

The trial judge, Superior Court Judge Richard D. Savell, denied the request for a mistrial but granted the request for a cautionary instruction. Judge Savell asked the defense attorney to draft an instruction, but the defense attorney declined. Instead, the defense attorney outlined generally what he wanted the instruction to say, and then he asked Judge Savell to come up with the exact language.

When court resumed session, Judge Savell told the jurors:

The Court: Ladies and gentlemen, I want to remind you that the defendant at all stages of a criminal proceeding is not obliged to make any statements or produce any evidence. And, in fact, it's his right not to do so. Go ahead, Mr. Satterberg [the defense attorney]. '

Nothing further was said about this issue until the next day, when Hamilton's attorney renewed his motion for a mistrial. The defense attorney cursorily asserted that "the court's curative instruction was not strong enough", but he did not explain why he thought so, nor did he suggest any supplement to the court's instruction. Instead, the defense attorney immediately proceeded to his main argument that a mistrial was required under this Court's ruling in Silvernail v. State, 777 P.2d 1169 (Alaska App.1989).

In Silvernail, the defendant and two other men were arrested and then charged with kidnapping and murder. At trial, Sitvernail asserted that he had been an unwilling participant-that his two companions had coerced him to aid the kidnapping and murder.

Silvernail took the stand to testify in support of this coercion theory. During the prosecutor's eross-examination of Silvernail, the prosecutor asked him why he had not explained his situation to the police officers who arrested him:

Prosecutor: When Officer Gaines came and took you out of the passenger seat, did you say to him, "God, I'm glad you're here."?
Silvernail: No.
Prosecutor: Did you say anything about the fact that you had just been seared to death?
[Objection by defense counsel; ruled] over-
Prosecutor: You never said to the police officer, when he came up to the car, "Hey, [my companions] just killed a guy. Let me tell you about it."?
Silvernail: No.
Prosecutor: You never said, "Gee, I'm relieved. You're finally here to help me." Right?
Silvernail: No, I didn't say that.

Silvernail, 777 P.2d at 1172-73.

On appeal, we held that this testimony should have been excluded under Alaska Evidence Rule 403 because its probative value was so heavily outweighed by its potential for unfair prejudice.

We pointed out that "in most cireum-stances[,] silence is so ambiguous that it is of little probative force.... [Although silence] gains more probative weight where it persists in the face of accusation, ... [failure to contest an assertion ... is considered evidence of acquiescence only if it would have been natural under the cireamstances to object to the assertion in question." And we concluded that, given the fact that Silvernail was taken into custody after attempting to evade the police and while wearing a shirt soaked with the victim's blood, "it would hardly have been natural under the cireum-stances for Silvernail to have made a full disclosure of his situation". We explained:

At the time of arrest and during eustodial interrogation, [the] innocent and [the] guilty alike-perhaps particularly the innocent-may find the situation so intimidating that they may choose to stand mute. A variety of reasons may influence that decision. In these often emotional and confusing cireumstances, a suspect may not have heard or fully understood the question, or may have felt there was no need to reply. He may have maintained silence out of fear or unwillingness to incriminate another. Or the arrestee may simply react with silence in response to the hostile and perhaps unfamiliar atmosphere surrounding his detention.

Silvernail, 777 P.2d at 1177.

Given our ruling in Silvernail, it is fairly obvious that the testimony challenged here-Officer Turney's testimony that Hamilton failed to express concern for anyone else-was objectionable and should not have been admitted. In its brief to this Court, the State does not really argue otherwise.

But the issue is not the admissibility of this testimony. As explained above, Judge Savell sustained the defense attorney's objection to this testimony and, at the defense attorney's request, the judge gave a curative instruction to the jury. Instead, the issue is whether the curative instruction was inadequate to remedy the harm, so that a mistrial was still required.

When Hamilton's attorney renewed his motion for mistrial on the following day, Judge Savell declared that he believed it was "a close call" whether he should declare a mistrial. The judge added that he "[could] imagine cireumstances ... that would tip the scale in either direction from here". In the end, however, Judge Savell was not convinced that a mistrial was required.

A trial judge's decision to grant or deny a mistrial is reviewed under the "abuse of discretion" standard. This means that we will reverse the trial court's decision "only when we are left with a definite and firm conviction, after reviewing the whole record, that the trial court erred in its ruling."

A timely curative instruction is presumed to remedy the unfair prejudice that might otherwise arise from inadmissible testimony. In Hamilton's case, immediately following the defense attorney's objection to Turney's testimony, Judge Savell instructed the jury that Hamilton had a right to decline to make any statements. We have previously recognized that such an instruction can be sufficient to cure the error when a jury hears testimony concerning a defendant's pre-ar-rest silence.

As explained above, this curative instruction was given at the defense attorney's request, after the attorney outlined what he wanted the judge to say. Although the defense attorney later complained that the instruction had not been "strong enough", he never suggested alternative or supplemental wording. And, indeed, Hamilton's appellate attorney does not attack the wording of the instruction.

We have already noted that when Judge Savell ruled on the motion for mistrial, he warned that he "[could] imagine cireum-stances ... that would tip the scale in either direction from here". But events that might have prompted Judge Savell to revise his ruling never came to pass. The prosecutor never asked another witness about Hamilton's concern or lack of concern for other people's welfare, and the prosecutor did not mention this theme during his summation to the jury.

On appeal, Hamilton suggests that the prejudice of the inadmissible testimony was exacerbated by the contemporaneous press coverage of the trial. During the second day's argument on the motion for mistrial, Hamilton's trial attorney pointed out that the local newspaper was carrying the headline, "Accused calm after stabbing death".

But as Judge Savell correctly noted, this newspaper headline was a "red herring" because everyone agreed (in fact, the defense attorney expressly conceded) that it was proper for the jury to hear testimony concerning Hamilton's demeanor-ie, testimony that he was calm and unemotional following the traffic stop. The issue confronting the court was what to do about Turney's testimony that Hamilton had failed to express concern for anyone else. There is nothing in the record to indicate that the newspaper article mentioned this testimony. Likewise, there is nothing in the record to indicate that any of the jurors disobeyed Judge Savell's instructions to insulate themselves from media coverage of the trial.

Having reviewed the record, we conclude that Judge Savell did not abuse his discretion when he concluded that the curative instruction was sufficient to remedy the problem and that a mistrial was not required. ___

Was Hamilton entitled to an instruction on self-defense or an imstruction on heat of passion?

In his opening statement, Hamilton's attorney suggested that Hamilton acted in self-defense when he stabbed Dixon, or at least that Dixon had provoked Hamilton's violence (thus potentially mitigating the crime to manslaughter due to heat of passion). But when the presentation of evidence was completed, Judge Savell ruled that Hamilton was not entitled to jury instructions on self-defense or heat of passion.

A defendant is entitled to have the jury instructed on self-defense or heat of passion (or any other defense) if there is "some evidence" to support the defense. In this context, "some evidence" is a term of art; it means evidence which, when viewed in the light most favorable to the defendant, is sufficient to support a finding in the defendant's favor by a reasonable fact-finder on each element of the proposed defense.

(In the case of self-defense and heat of passion, the government ultimately bears the burden of disproving the defense beyond a reasonable doubt. Thus, the evidence is sufficient to support a finding in the defendant's favor if it is sufficient to engender a reasonable doubt on each element of the proposed defense.)

At trial, Hamilton's attorney argued that a plausible case of self-defense was established by the following evidence: (1) the wound to Hamilton's leg; (2) Rebecca Dixon's testimony that Hamilton and Dixon were struggling when she first awoke; (8) the fact that Hamilton and Dixon were best friends-suggesting that Dixon must have done something to trigger this kind of conduct from Hamilton; and (4) the lack of evidence of a forced entry-suggesting that Dixon voluntarily permitted Hamilton to enter the house. But Judge Savell concluded that none of this would support a reasonable inference that Dixon had attacked Hamilton or had provoked Hamilton to violence.

On appeal, Hamilton renews his contention that he was entitled to jury instructions on self-defense and heat of passion (4.e., serious provocation by the victim). But Hamilton's argument in support of these defenses consists primarily in noting that Dixon and Hamilton were friends, that there was no apparent reason for Hamilton to attack Dixon, and that Hamilton may have induced Dixon to open the door to him voluntarily (a factual assertion that the jury rejected when they convicted Hamilton of burglary).

It is true that the State offered no motive for Hamilton's attack on Dixon. However, the evidence showed that Hamilton came to Dixon's residence in the middle of the night, when everyone in the house was asleep. Regardless of how Hamilton obtained entry, he was armed with a knife and was wearing a bandana to cover his face. When Rebecca Dixon awoke, she saw her husband struggling with Hamilton, but there was no evidence that Dixon was doing anything other than trying to defend himself. David Dixon was unarmed, he was clothed only in his underwear, and he was crouched on the floor while Hamilton stabbed him repeatedly with a downward motion. At this point, there was already blood bubbling from Dixon's mouth. Hamilton then began to throw Dixon around the room "like a limp rag doll", all the while continuing to stab him. Dixon was no longer making any kind of resistance. When Re-beeea Dixon moved from her bed to grab her daughter, Hamilton interrupted his attack and stared at her, but then he continued his attack-dropping Dixon in front of a couch and stabbing him a few more times in the back-before he ran from the house.

Neither Hamilton nor any other witness offered an explanation for Hamilton's violence or gave testimony suggesting that David Dixon had initiated or provoked the attack. It is true that Hamilton was bleeding from a wound to his thigh when the police stopped his car. But there was no evidence presented as to when Hamilton received this wound or how it was inflicted. Even assuming that the wound was a knife wound received while Hamilton was inside the Dixon residence, there was no evidence that Dixon was armed at any time during his struggle with Hamilton.

Given this evidence, any argument that Hamilton acted in self-defense or as a result of serious provocation by Dixon would be based on pure speculation. As we said in Hilbish v. State,

One can certainly conjure scenarios involving self-defense or heat of passion that would arguably be consistent with the evidence at trial; in this sense, [the defendant might] plausibly maintain that the evidence at trial does not rule out the possibility of self-defense or heat of passion.... But the state was under no obligation to assume the burden of disproving self-defense until there was some evidence affirmatively suggesting that what might have happened actually did happen; [likewise, a defendant does not meet the] burden of establishing heat of passion as an affirmative defense merely because the evidence at trial did not disprove it.

891 P.2d 841, 852 (Alaska App.1995).

In Hamilton's case, as was true in Hilbish, the evidence that supposedly supports self-defense or heat of passion "is essentially neutral, that is, merely compatible with a theory of self-defense or heat of passion". It has "no material bearing on the crucial issues involved in a claim of self-defense or heat of passion: whether [Dixon] actually used or threatened deadly force at the time of the [stabbing], whether [Hamilton stabbed Dixon] in defense against such force or threat, or whether [Dison] engaged in any act of serious provocation'".

Even viewing the evidence in the light most favorable to Hamilton (which we are obliged to do), Hamilton's claims of self-defense or heat of passion rest on speculation; they find no reasonable support in the evidence. Judge Savell properly denied Hamilton's requests for jury instructions on self-defense and heat of passion.

One concluding note: In past decisions, including Hilbish, we have stated that the "abuse of discretion" standard governs our review of a trial judge's decision whether to instruct the jury on a proposed defense. This is not completely accurate. If there is "some evidence" of a proposed defense, a judge has no discretion to refuse a timely defense request for a jury instruction on that defense. This is an issue of law which we resolve de novo based on the entire record. Conversely, if there is not "some evidence" of the proposed defense, the defendant is not entitled to have the jury instructed on that defense. .

Did Judge Sawell penalize Hamilton for asserting his Fifth Amendment right to de-clime to explain his crime at sentencing?

As already noted, the jury convicted Hamilton of first-degree burglary and first-degree murder. Judge Savell sentenced Hamilton to 99 years' imprisonment for the murder-the maximum term allowed by law. (Hamilton received a concurrent 4-year prison term for the burglary.)

At sentencing, Hamilton declined to make a statement or present any evidence to explain his behavior. On appeal, Hamilton contends that Judge Savell held Hamilton's silence against him-that the judge's decision to impose a 99-year sentence was tainted by the judge's feeling that Hamilton was obliged to explain his behavior if he wanted to receive something less than the maximum sentence. But the record provides little support for this claim.

Shortly after Judge Savell began his sentencing remarks, he expressly acknowledged Hamilton's right to remain silent, and he declared that he would "not accept [any] suggestion that [Hamilton's] invocation of his right to silence [should] result in a harsher sentence for him." Judge Savell then made the remarks that Hamilton criticizes on appeal:

The Court: I have to confess that ... [E] looked forward to the possibility of learning [during these sentencing proceedings] what could cause two close friends [ie., Hamilton and Dixon] to have their respective lives end this way. I looked forward to [this] sentencing in the hope that I would hear an explanation that could provide background, mitigation, and an understanding [of Hamilton's conduct].

But after saying this, Judge Savell immediately reiterated that he would not penalize Hamilton for asserting his right to remain silent:

The Court: I accept that [explanation] is not forthcoming, and I'll not punish [Mr. Hamilton] for it. But [without such an explanation] I am limited in being [able] to assess [Hamilton's] remorse, rehabilitation potential, [and] whether and to what extent deterrence is likely or necessary or futile.

Although it is improper for a sentencing judge to penalize a defendant for remaining silent, a sentencing judge remains obliged (as Judge Savell noted) to assess the seriousness of the defendant's crime, the prospects for the defendant's rehabilitation, and the extent to which imprisonment may be needed to deter the defendant from future acts of lawlessness and/or to protect the public until the defendant is rehabilitated. When a defendant declines to offer evidence on these issues, the sentencing judge must base his or her decision on the existing record.

The record in this case shows that Hamilton committed a vicious and apparently inexplicable murder. The evidence leaves little doubt that the murder was premeditated: Hamilton illegally entered the Dixon residence in the middle of the night, wearing a bandana over his face and armed with a dagger-like knife. He stabbed Dixon more than two dozen times, continuing his attack long after his victim was rendered defenseless by previous wounds.

We have repeatedly held that premeditated murder is among the most serious conduct within Alaska's definition of first-degree murder-and that, in first-degree murder cases, a defendant's premeditation, standing alone, will support a sentence of 99 years' imprisonment. Moreover, even in cases of second-degree murder (e, cases in which the killing was unintended), we have repeatedly upheld sentences in the upper end of the penalty range for defendants who committed gratuitous or otherwise inexplicable acts of extreme violence.

It was Hamilton's right not to offer evidence in explanation or mitigation of his conduct. But in the absence of extenuating information, Judge Savell was left with the record as it stood. That record fully supports Judge Savell's decision to impose the maximum sentence for first-degree murder. Given this record, and given Judge Savell's repeated statements that he would not penalize Hamilton for remaining silent, the fact that Hamilton received a sentence of 99 years' imprisonment raises no inference that Judge Savell was surreptitiously punishing Hamilton for failing to explain his conduct.

Conclusion

The judgement of the superior court is AFFIRMED.

ORDER DENYING REHEARING

Adam Hamilton seeks rehearing of our decision in his case, Hamilton v. State, 59 P.3d 760 (2002). Although Hamilton raises several arguments, we conclude that only one of these arguments merits an explanatory response. ,

Hamilton's primary argument is that we misunderstood or misinterpreted the facts of the case when we upheld the investigative stop of Hamilton's vehicle Specifically, Hamilton contends that we misunderstood the relevance of Officer Turney's observation that Hamilton's license plate was obscured by snow. Hamilton argues that, even though Turney may have been aware that the license plate was obscured as she followed Hamilton's vehicle down the highway, Turney's supervisor (Sgt. Sodden) was unaware of this fact when he ordered her to conduct an investigative stop of Hamilton's vehicle. Moreover, Hamilton argues, Turney never testified that her decision to stop Hamilton's vehicle was motivated by the fact that: his license plate was obscured.

Hamilton's arguments rest on the implicit premise that the validity of the investigative stop hinges on Turney's subjective reasons for conducting the stop (or Sodden's subjective reasons for directing Turney to conduct the stop). This is incorrect. The validity of an investigative stop turns on an objective test: whether the investigative stop was objectively justified in light of the facts known to the police at the time they performed the stop. We clarified this point in our initial opinion in this case:

[The State is allowed to rely on an after-the-fact justification [for the investigative stopl, so long as the facts known to the officers at the time of the investigative stop are sufficient to establish the legal foundation for this justification. We decided this point of law in Beauvois v. State, 837 P.2d 1118 (Alaska App.1992). In Be-auvois, we held that the legality of an investigative stop hinges on an objective test: whether the facts known to the officers established a legitimate basis fqr'the stop. The officers' subjective theories as to why the stop was proper are irrelevant.

Hamilton, opinion at 764-65 (citing Beauvois, 837 P.2d at 1121 n. 1).

As we explained in our initial opinion, the facts known to the police provided an objective justification for stopping Hamilton's vehicle.

To summarize the situation at that point:

A serious assault had been committed in the middle of the night-an assault which, given the nature and the number of David Dixon's wounds, threatened to become a homicide at any moment. The state troopers and the Fairbanks police responded within minutes. As they made their way to the crime scene, they saw only one private vehicle driving toward central Fairbanks, away from the neighborhood of the crime. The officers had reason to believe that the occupant(s) of this car might have seen something that would aid their investigation. But because the license plate of this vehicle was covered with snow, it was not possible to identify the vehicle and contact the driver later. If the police were to speak with these potential witnesses, 1 had to be right then. §
Under these circumstances, we conclude that the Coleman rule was satisfied: "a prompt investigation [was] required ... as a matter of practical necessity".

Hamilton, opinion at 767.

- Having considered this point as well as the other points raised in Hamilton's petition for rehearing, we conclude that Hamilton's petition should be DENIED.

Entered at the direction of the Court.

      . Beauvois, 837 P.2d at 1121 n. 1.

      . Castle, 999 P.2d at 170-71.

      . See id. at 175—74.

      . Id. at 177.

      . See Whren, 517 U.S. at 813-19, 116 S.Ct. at 1774-77.

      . AS 28.40.050(a)-(b).

      . See AS 12.25.030(a)(1) (a police officer may arrest a person without a warrant when the person commits a crime in the officer's presence); AS 12.25.180(a) (a police officer who stops or contacts a person for committing a misdemeanor 'may either arrest them or issue them a citation, at the officer's discretion).

      . Coleman, 553 P.2d at 46.

      . Quoting Coleman, 553 P.2d at 46, which in turn was quoting Goss v. State, 390 P.2d 220, 224 (Alaska 1964), overruled on other grounds by Glasgow v. State, 469 P.2d 682 (Alaska 1970).

      . 837 P.2d at 1121.

      . 797 P.2d 1219, 1221 (Alaska App.1990).

      . Silvernail, 777 P.2d at 1171.

      . See id.

      . Silvernail, 777 P.2d at 1176 (quoting United States v. Hale, 422 U.S. 171, 176, 95 S.Ct. 2133, 2136, 45 L.Ed.2d 99 (1975)).

      . Id. at 1176-78.

      . Quoting Hale, 422 U.S. at 177, 95 S.Ct. at 2137.

      . See Walker v. State, 652 P.2d 88, 92 (Alaska 1982); Roth v. State, 626 P.2d 583, 585 (Alaska App.1981).

      . Keogh v. W.R. Grasle, Inc., 816 P.2d 1343, 1349 n. 11 (Alaska 1991).

      . See Roth, 626 P.2d at 585.

      . See Hamilton v. State, 771 P.2d 1358, 1360 (Alaska App.1989).

      . See Lamont v. State, 934 P.2d 774, 777 (Alaska App.1997); Ha v. State, 892 P.2d 184, 190 (Alaska App.1995); see also Snyder v. State, 930 P.2d 1274, 1280 (Alaska 1996).

      . See AS 11.81.335 ("use of deadly force in defense of self").

      . See AS 1141.115(a) & ("heat of passion" resulting from "serious provocation").

      . Hilbish, 891 P.2d at 852.

      . Id.

      . See AS 12.55.125(a).

      . See AS 12.55.005; State v. Chaney, 477 P.2d 441, 443-44 (Alaska 1970).

      . Compare Lepley v. State, 807 P.2d 1095, 1101 (Alaska App.1991) (when a defendant asserts the privilege to refuse a psychological evaluation in aid of sentencing, the sentencing judge must not draw an adverse inference from the defendant's assertion of privilege, but the consequence for the defendant is that the judge then assesses the defendant's potential for rehabilitation based on the existing evidence).

      . See Nelson v. State, 874 P.2d 298, 310 (Alaska App.1994); George v. State, 836 P.2d 960, 963 (Alaska App.1992); Washington v. State, 828 P.2d 172, 174 (Alaska App.1992); Riley v. State, 720 P.2d 951, 952 & n. 1 (Alaska App.1986).

      . See Monroe v. State, 847 P.2d 84, 92-93 (Alaska App.1993) (upholding a sentence of 60 years' imprisonment); Norris v. State, 857 P.2d 349, 356-58 (Alaska App.1993) (upholding a sentence of 50 years' imprisonment); Page v. State, 657 P.2d 850, 853-55 (Alaska App.1983) (upholding a sentence of 99 years' imprisonment); Faulkenberry v. State, 649 P.2d 951, 956-57 (Alaska App.1982) (upholding a sentence of 60 years' imprisonment); see also the companion cases of Gustafson v. State, 854 P.2d 751, 763-67 (Alaska App.1993), and Cheely v. State, 861 P.2d 1168, 1178-1180 (Alaska App.1993) (upholding, respectively, sentences of 65 and 60 years' imprisonment).


source: Caselaw Access Project

author: COATS, Chief Judge.

license: Public Domain

text:
    Lovie D. HOUSTON, Appellant, v. MUNICIPALITY OF ANCHORAGE, Appellee.
    No. A-7930.
    Court of Appeals of Alaska.
    Dec. 6, 2002.

      Dennis P. Cummings, Gorton & Logue, Anchorage, for Appellant.
    John E. MeConnaughy III, Assistant Municipal Prosecutor, and William A. Greene, Municipal Attorney, Anchorage, for Appellee.
    Before COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

COATS, Chief Judge.

Lovie D. Houston was convicted under Anchorage Municipal Code (AMC) 8.45.010(A)(2) of trespassing on private business or commercial property because he entered his former apartment after he had notice that the property was not open to him. Houston argues that the trial court should have granted his motion for judgment of acquittal because the Municipality failed to prove that he had trespassed on "private business or commercial property." He also argues that the court erred by refusing to define "private business or commercial property" for the jury, and by not permitting him to argue that the apartment did not fall within that definition.

Because the Anchorage trespass ordinance distinguishes types of property based on use, not based on who has possessory rights to the property, the Municipality should have charged Houston with trespassing on residential property under AMC 8.45.010(A)(1). However, by convicting Houston of trespassing on commercial property under subsection (A)(2), the jury necessarily found that Houston had entered the apartment without a privilege to do so-the elements necessary to convict him of trespassing on residential property under subsection (A)(1). Moreover, Houston has not shown that he was prejudiced because he was charged under the wrong subsection of the ordinance. For these reasons, we affirm the jury's verdict.

Facts and proceedings

On October 2, 2000, Houston was evicted from an apartment at 915 West 29th Street in Anchorage. Houston received notice that he was to be out of the apartment by noon on October 4. Nevertheless, he entered the apartment on October 5, apparently through a window, to retrieve property he had left there. The police arrested him for trespass.

The Municipality charged Houston under AMC 8.45.010(A)(2), which prohibits trespassing on private business or commercial property. After the Municipality presented its case, Houston moved for judgment of acquittal, claiming that the Municipality had failed to show that the apartment he entered was business or commercial property. Houston also asked the court to instruct the jury on the definitions of commercial, residential, and public buildings contained in an unrelated state statute governing the safety of glazing. That statute defines "commercial buildings" as "buildings including but not limited to wholesale and retail stores and storerooms, and office buildings," and "residential buildings" as "structures including but not limited to homes and apartments used as dwellings for one or more families or persons.

District Court Judge John Lohff denied Houston's motion and refused to instruct the jury on his proposed definitions. Judge Lohff did not decide whether the apartment Houston was charged with entering was residential or commercial property. Instead, Judge Lohff ruled that the type of property trespassed upon was irrelevant under the facts of Houston's case because the gravamen of the offense was whether he had entered the apartment when he had notice he was not supposed to be there. Based on this ruling, the court barred Houston from arguing to the jury that the apartment was not commercial property.

Judge Lohff offered several times to permit the Municipality to amend the information to charge Houston with trespassing on residential property. Houston repeatedly opposed that amendment. The Municipality initially declined to amend the charge because the district court had ruled that the apartment was commercial property. But the court later retreated from that ruling, and again offered to permit the Municipality to amend the charge. Houston vigorously opposed any such amendment. He argued that he would be prejudiced if he was charged mid-trial with trespassing on residential property because his defense was that the Municipality had failed to prove that he had entered commercial property, and he had cross-examined the officers based on that defense.

The jury convicted Houston of trespass. Houston appeals that conviction.

Was Houston properly charged with trespassing on commercial property?

The jury was instructed that it could convict Houston for trespassing on private business or commercial property under two alternative theories: by finding that he had actual notice that the property was not open to him (Count 1), or by finding that he had violated a prominently posted notice against trespass or use (Count 2). The jury conviet-ed Houston for trespassing when he had actual notice that the property was not open to him, and thus did not reach the latter count. -

The threshold issue raised by this appeal is whether the Municipality properly charged Houston with trespassing on business or commercial property for entering his former apartment. Because the ordinance does not define business or commercial property, the definition of those terms are legal issues for this court.

As a general rule, trespass statutes distinguish structures based on their use and on the interest to be protected. Alaska's first-degree 'eriminal trespass statute, like the Model Penal Code, increases the penalty for trespassing if a "dwelling" is involved. A dwelling is defined as "a building that is designed for use or is used as a person's permanent or temporary home or place of lodging." That definition would encompass a "vacant" apartment-in this case, an apartment that was suitable for occupaney but no longer had a legal tenant. Most jurisdictions treat vacant apartments as dwellings, based either on the language of their statutes or the policy that an intrusion in even a vacant and unoccupied apartment poses a threat to the personal security of nearby residents.

If other criminal -trespass statutes are an appropriate guide, the apartment Houston entered should be. defined as "residential" rather than "commercial" because it was a dwelling; even though it had no tenant, it was designed and still suitable for habitation.

But, as the Municipality points out, the Anchorage ordinance is not organized like most trespass statutes. The ordinance distinguishes residential from commercial property not to make trespassing on the former a more serious offense-the penalties for both offenses are identical-but to establish differences in how trespassing on those two types of private property must be proved.

To show that a person trespassed on residential property, the Municipality need only prove that the person had no privilege to be there; to prove that a person trespassed on commercial property, the Municipality must prove that the property was closed to the public, that -the property was prominently posted against trespass, that the person had actual notice that the property was not open to him or her, or that the person had been asked to leave by someone with apparent authority to do so. This distinction makes sense because people generally have no right to enter residential property without an invitation (with the exception of areas of ingress and egress that are impliedly open to public use ), but they commonly do have the right to enter commercial or business property absent notice that the property is closed or the right to enter has been withdrawn.

The Municipality argues that the ordinance distinguishes the nature of the property trespassed upon based on who has possessory rights to that property. Thus, a rented apartment would be residential property because the tenant would have possessory rights. But because Houston had been evicted from his apartment, the Municipality argues, possessory rights had reverted to the landlord, a commercial entity.

The Municipality's proposed construction does not square with the policy behind the trespass ordinance. The ordinance imposes more burdensome duties of notice on commercial and business property owners because of the quasi-public nature of their property. An apartment or other residence does not lose its private character and become commercial simply because it is between rentals and has been repossessed by a lender.

Furthermore, the Anchorage zoning ordinances treat apartment buildings as residential property, and the Municipality points to no contrary definitions in the municipal code to suggest that apartments should be characterized differently for purposes of the trespass ordinance. "Unless words have acquired a peculiar meaning, by virtue of statutory definition or judicial construction, they are to be construed in accordance with their common usage." Webster's New World Dictionary defines "residential" as "of or connected with residence" and "of, characterized by, or suitable for residences, or homes." Because an apartment falls within the commonly used definition of residence, we conclude that Houston was charged and convicted under the wrong subsection of the trespass ordinance.

Should Houston's conviction be reversed?

The question remains whether Houston's conviction should be reversed because of this error. Under Criminal Rule 7(c), a defect in the form of an information does not invalidate a conviction unless the defendant's substantial rights were prejudiced. Similarly, under Criminal Rule 7(e), an information may be amended any time before a verdict if "no additional or different offense is charged and the substantial rights of the defendant are not prejudiced." If the Municipality had amended the information to charge Houston with trespass on residential property, that amendment would not have alleged a change in the nature of Houston's underlying erimi-nal act: entering or remaining in an apartment when he had notice that the apartment was not open to him. The information fully apprised Houston that the charged offense included those essential elements.

Furthermore, the parties never disputed that Houston was in the apartment at the time of his arrest. To convict Houston of trespassing on commercial property under AMC 8.45.010(A)(2)(c), the jury was required to find the elements necessary to that offense-that he knowingly entered or remained in the property when he had actual notice not to be there. If Houston had actual notice that he was not allowed in the apartment, he necessarily also entered or remained "without a privilege to do so"-the elements required to convict him of trespass on - residential property under AMC 845.010(A)(1). Thus, under the facts of Houston's case, trespassing on residential property was in effect a lesser-included offense of trespassing on commercial property.

Lastly, Houston has not shown how he was prejudiced because he was charged under the wrong subsection of the trespass ordinance. Houston's main defense at trial was that he had not committed the offense the Municipality had charged him with-trespassing on commercial property. When Judge Lohff ruled mid-trial that the type of property trespassed upon was irrelevant under the facts of the case, this ruling conceivably might have prejudiced Houston if, in reliance on the Municipality's charging error, he had not fully prepared an alternative available defense. But Houston's brief on appeal does not suggest how his defense would have been different if he had been charged correctly. Nor can we discern any obvious defense from the record, given that Houston concedes he entered the apartment on October 5 after receiving notice to be out of the apartment by October 4.

At trial, Houston told Judge Lohff that he would have cross-examined the police officers differently if he had been charged with trespassing on residential property. But the only testimony Houston elicited from the officers that was relevant to the type of property he entered was either neutral or would have worked to his benefit if he had been charged with residential trespass-the officers characterized the property as an "apartment complex," "where people live," and "commercial property, which is apartment rentals." Moreover, Houston offered no convincing alternative defense. He testified that he had difficulty reading the documents notifying him of the exact time he was required to be out of the apartment, but he conceded he knew he was supposed to be out of the apartment by October 4. At one point, Houston testified that he had not entered the apartment through the window as alleged; but elsewhere he acknowledged he had climbed through the window on October 5. He complained that the apartment management had locked him out of the apartment and otherwise made it difficult for him to remove his property by the October 4 deadline. But the jury convicted Houston despite this testimony.

Because Houston has not demonstrated that the Municipality's error in charging him under the wrong subsection of the trespass ordinance prejudiced him, we conclude that the error was harmless. Therefore, the district court did not err in denying Houston's motion for judgment of acquittal.

Conclusion

The jury's verdict is AFFIRMED.

      . AS 18.60.780 (defining "glazing" as "the act of installing and securing glass or other glazing material into prepared openings in structural elements including but not limited to doors, enclosures, and panels").

      . AS 18.60.780(2), (12).

      . AMC $.45.010(A)(2)(c).

      . AMC 8.45.010(A)(2)(b), (c).

      . AMC 8.45.010(A)(2)(c).

      . Cf. Maness v. State, 49 P.3d 1128, 1137 (Alaska App.2002) (Mannheimer, J., concurring); Sears v. State, 713 P.2d 1218, 1219 (Alaska App.1986).

      . See 75 Am.Jur.2d Trespass § 187 (2d ed.1991); of. 13 AmJur.2d Burglary § 28, at 201 (2d ed. 2000) ("I is the element of habitation, not the nature of the structure, that elevates the crime of burglary to first degree.").

      . AS 11.46.320; American Law Institute, Model Penal Code and Commentaries, Part II, § 221.2, at 85, 91 (1980).

      . AS 11.81.900(21).

      . We have held in the context of the state burglary statute that a dwelling does not lose its character as a dwelling simply because it is unoccupied. See Champion v. State, 908 P.2d 454, 470 (Alaska App.1995) (noting that Alaska law classifies the burglary of any dwelling, occupied or not, as first-degree burglary); Shetters v. State, 751 P.2d 31, 36-37 (Alaska App.1988) (holding, in the context of an ineffective assistance of counsel claim, that the trial jury could have found that an unfinished house that was virtually complete but still unoccupied was a dwelling for purposes of the burglary statute).

      . See, e.g., People v. Silva, 256 Ill.App.3d 414, 195 Ill.Dec. 484, 628 N.E.2d 948, 952-53 (1993) (unoccupied garden-level apartment undergoing renovation was a dwelling for purposes of the residential burglary statute even though it had been vacant for seven months); State v. Scott, 169 N.J. 94, 776 A.2d 810, 815-16 (2001) (rental apariment that was vacant but available and suitable for rent was a dwelling for purposes of the criminal trespass statute); State v. Ramey, 89 Or.App. 535, 749 P.2d 1219, 1221 (1988) (apartment was a dwelling for purposes of the criminal trespass statute even though the owner was remodeling it and it had been vacant for two months); Matter of E.P., 963 S.W.2d 191, 193 (Tex.App.1998) (jury could have found that vacant apartment in apartment complex was "habitation" for purposes of the criminal trespass statute because the apartment was adapted for overnight accommodation of persons); cf. State v. Edwards, 589 N.W.2d 807, 811 (Minn.App. 1999) (dwelling had not lost its residential character for purposes of burglary statute because the sole occupant had recently died); People v. Barney, 294 A.D.2d 811, 742 N.Y.S.2d 451, 453 (2002) (same). But see Poff v. State, 4 Md.App. 186, 241 A.2d 898, 900 (1968) (vacant apartment rented to police for sting operation was not dwelling, but a place where furniture was stored pending its rental by a new tenant); People v. Murray, 278 A.D.2d 898, 718 N.Y.S.2d 554, 556 (2000) (finding insufficient evidence that the defendant entered a dwelling when he entered a two-family rental unit in which the upstairs apartment had been vacant for several months and the downstairs apartment was boarded up).

      . We have routinely referred to burglary in a - dwelling as "residential burglary." See, e.g., Champion, 908 P.2d at 470; Wesolic v. State, 837 P.2d 130, 134 (Alaska App.1992). Other states have formally classified burglary in a dwelling as "residential burglary." See Ark.Code Ann. § 5-39-201 (Michie 1997); 720 IIL. Comp. Stat. 5/19-3 (West Supp.2002); Wash. Rev.Code Ann. § 9A.52.025 (West 2000).

      . See Pistro v. State, 590 P.2d 884, 887 & n. 10 (Alaska 1979).

      . Cf. Fairbanks N. Star Borough Assessor's Office v. Golden Heart Utils., Inc., 13 P.3d 263, 269 (Alaska 2000) (noting that a "leasehold" is a tenant's possessory estate in land or premises)}.

      . See AMC 21.40.040-.060.

      . State, Dep't of Revenue v. Debenham Elec. Supply Co., 612 P.2d 1001, 1002 (Alaska 1980).

      . Webster's New World Dictionary 1142 (3d coll. ed.1988). The Anchorage zoning ordinances define "residential" as "activity involving the occupation of buildings for living, cooking, sleeping and recreation." AMC 21.35.020.

      . Cf. Cheely v. State, 850 P.2d 653, 658-63 (Alaska App.1993).

      . See Alaska R.Crim. P. 31(c).

      . See McGahan v. State, 606 P.2d 396, 397-98 (Alaska 1980).


author: Justice HOBBS

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Mark SCHALL, Defendant-Appellee.
    No. 02SA263.
    Supreme Court of Colorado, En Banc.
    Dec. 16, 2002.

      'James J. Peters, District Attorney, William Hood III, Chief Deputy District Attorney, Englewood, Colorado, Attornéys for Plaintiff-Appellant.
    Joseph A. Lazzara, Westminster, Colorado, Attorney for Defendant-Appellee.
   Justice HOBBS

delivered the Opinion of the Court.

~ In this interlocutory appeal, filed pursuant to C.A.R. 4.1 and section 16-12-1022), 6 C.R.S. (2002), the prosecution appeals the district court's suppression of blood alcohol evidence that the Colorado Highway Patrol obtained from the defendant, Mark Schall. We reverse the district court's suppression order. The district court incorrectly concluded that the police lacked probable cause to arrest. Schall for an alcohol-related offense, a precondition to collecting blood from him. The. facts supporting probable cause in this case are that an eyewitness observed Schall driving his car into oncoming traffic, the police smelled the odor of an alcoholic beverage from his badly wrecked car, and the police saw broken beer bottles inside the car. Because the constitutional prerequisites to collecting a blood sample from a non-consenting suspect are satisfied in this case, the Fourth Amendment to the United States Constitution does not bar admission of the blood aleohol evidence.

T.

This case involves an automobile accident that occurred in the early morning of April 2, 2001, on Colorado Highway 85 in Douglas County. The facts at the suppression hearing were that Schall's car crossed the center-line of the highway and collided with a semi-truck headed in the opposite direction. A second semi-truck, following behind the first, veered off the road to avoid Schall and the first truck. In the process, the second truck overturned, killing the driver. Schall was serfously injured. The police did not have an opportunity to interview Schall or conduct a roadside sobriety test before a helicopter evacuated him to a hospital.

The police relied on facts at the scene of the accident to establish probable cause to believe that Schall was driving under the influence of alcohol. First, an eyewitness saw Schall driving over the centerline of the highway and striking the semi-truck. The police observed that there were no skid marks, which would have indicated that Schall tried to brake or dodge an animal or other obstacle in the road and lost control of his vehicle before colliding with the semi-truck.

Second, the police smelled a strong odor of an alcoholic beverage from Schall's car. The police saw several broken beer bottles in his car, along with one intact bottle. Based on the cireamstances of the accident and the smell of an alcoholic beverage from Schall's badly wrecked vehicle, the po'lice ordered blood draws while Schall was undergoing treatment for injuries sustained in the accident. Schall did not consent to the collection of these samples. The samples were obtained within two hours of the accident.

Based in part on test results from Schall's blood draws, the prosecution charged him with vehicular homicide and driving under the influence of alcohol, drugs, or both. In a pretrial motion, Schall sought to suppress the results of his blood tests, arguing that the police obtained the evidence without probable cause. After a hearing, the trial court granted Schall's motion. It determined that the information known to the police at the time of the blood draws was- not sufficient for probable cause to believe that Schall had committed an alcohol-related driving offense.

IL

We hold that probable cause existed for Schall's blood draws and testing. The facts at the suppression hearing were that Schall caused the accident by driving his car into oncoming traffic, the interior of his badly wrecked car smelled of an alcoholic beverage, and the police observed broken beer bottles in the car. Because the constitutional prerequisites to collecting a blood sample from a non-consenting suspect are satisfied in this case, the Fourth Amendment to the United States Constitution does not bar admission of the blood aleohol evidence.

A. Standard of Review

In reviewing a suppression appeal, we defer to the trial court's findings of fact if they are supported by the record and review the trial court's legal conclusions de novo. E.g. People v. Hebert, 46 P.3d 473, 480 (Colo.2002).

The taking of blood evidence from one's person is subject to the protections of the Fourth Amendment to the United States Constitution. People v. Diaz, 53 P.3d 1171, 1174-75 (Colo.2002). We have enumerated four criteria for evaluating the constitutionality of warrantless, non-consensual blood draws to test for the presence of alcohol: (1) there must be probable cause for the arrest of the defendant on an alcohol-related driving offense; (2) there must be a clear indication that the blood sample will provide evidence of the defendant's level of intoxication; (8) exigent cireumstances must exist which make it impractical to obtain a search warrant; and (4) the test must be a reasonable one and must be conducted in a reasonable manner. People v. Sutherland, 683 P.2d 1192, 1194 (Colo.1984).

We determine that the prosecution has met each of these criteria, requiring us to reverse the trial court's order suppressing evidence from Schall's blood draws.

B. Application of the Sutherland Test

The crux of this interlocutory appeal is the first prong of the Sutherland test, whether the police had probable cause to arrest Schall for committing an aleohol-relat-ed driving offense. The police have probable cause to arrest when the facts and circumstances known to the police are sufficient to warrant the belief by a reasonable and prudent person that the defendant committed an alcohol-related offense. People v. MacCallum, 925 P.2d 758, 762 (Colo.1996). The probable cause determination rests on all of the facts and cireumstances known to the police at the time of the arrest. Id.; People v. Washington, 865 P.2d 145, 147 (Colo.1994). Absolute certainty that the defendant committed the offense is not necessary; rather, probable cause involves that degree of certainty upon which reasonable and prudent people rely in making decisions in everyday life. MacCallum, 925 P.2d at 762; People v. Thompson, 793 P.2d 1173, 1175 (Colo.1990).

In MacCallum, we reviewed cireumstances of a head-on automobile wreck from which the defendant driver had been transported to the hospital. The police could not ascertain the smell of an alcoholic beverage at the scene, due to MacCallum's evacuation and the extent of the wreckage. Nevertheless, we determined that the police had probable cause to take a blood draw from MacCallum, based on witness statements that he had been weaving across traffic lanes for a number of miles and drove into an oncoming vehicle. MacCallum, 925 P.2d at 762-63.

In MacCallum, we reviewed and distinguished two cases which held that no probable cause existed for an alcohol-related offense. In People v. Reynolds, 895 P.2d 1059, 1062 (Colo.1995), we held that a driver's one-car accident buttressed by the driver's admission to drinking three beers, six to nine hours before the accident, did not meet the standard of probable cause, in the absence of evidence that the accident occurred as a result of the driver's misconduct or due to the influence of alcohol. In People v. Roybal, 655 P.2d 410, 413 (Colo.1982), we held that the odor of an alcoholic beverage on the defendant was insufficient to support probable cause when there was no evidence that the collision occurred as a result of the defendant's misconduct. On the other hand, in People v. Shepherd, 906 P.2d 607, 609-10 (Colo.1995), we held that probable cause existed based on evidence that the defendant was at fault for a traffic accident resulting in death and serious injury, the presence of empty beer cans near the accident seene, and the odor of an alcoholic beverage on defendant's breath.

Our Fourth Amendment jurisprudence contains both guidance and caution. A court must take into account the totality of cireumstances known to the police. Facts in combination may support probable cause, whereas facts in isolation may not. See People v. Altman, 960 P.2d 1164, 1171 (Colo.1998); Wayne R. LaFave, Search and Sei-gure § 8.2(e) at 70 (8d ed.1996). In evaluating probable cause, the police may use their judgment, experience, and training in evaluating the circumstances and assessing the combined importance of the individual facts. Henderson v. People, 879 P.2d 383, 892 (Colo.1994) ("Due consideration should be given to a law enforcement officer's experience and training in evaluating the significance of the officer's observations relevant to probable cause.")

Probable cause may be based on circumstantial evidence, and the police are entitled to draw appropriate inferences from the circumstantial evidence, even though the evidence might also support other inferences. See People v. Hebert, 46 P.3d 473, 482 (Colo.2002) (quoting People v. Hakel, 870 P.2d 1224, 1229 (Colo.1994)).

Here the police had probable cause to believe that Schall caused the accident by driving into oncoming traffic. They found no skid marks; animal remains, or roadway obstructions that might explain the cause of the accident. They smelled the odor of an alcoholic beverage coming from within the open area of the vehicle accessible to the driver. They observed broken and intact beer bottles in the wreckage, but, due to the extent of the vehicle's damage, they could not tell whether one or more of the bottles had been opened prior to the accident or whether the bottles had all been capped and all but one were shattered in the collision. They could not interview Schall at the seene due to his emer-geney evacuation.

The trial court determined that the circumstances of the head-on collision, the smell of an alcoholic beverage in the vehicle, and the presence of broken beer bottles did not support probable cause. We disagree. Like MacCallum and unlike Reynolds and Roy-bal, Schall caused this head-on accident by driving into the opposite lane of traffic. Like MacCallum, based on the knowledge and experience of officers investigating at the seene, the cireumstances of the collision were consistent with Schall driving under the influence of alcohol. The smell of an alcoholic beverage at the sceerie and the presence of broken beer bottles in Schall's ear supported the reasonableness of this inference, as in Shepherd. Under these cireumstances, the police had probable cause to believe that Schall had committed an alcohol-related offense, satisfying the first criterion of our Sutherland test.

The second prong of the Sutherland test requires clear indication that a blood draw will show the amount of aleohol, if any, in the defendant's blood at the time of the alcohol-related offense. Sutherland, 683 P.2d at 1194. If the police wait too long, a blood test will be ineffective. Likewise, if a defendant drank heavily after an offense, a blood test might not show the level of alcohol in the defendant's blood at the time of the offense. The timing of the blood draw is therefore significant to the reliability of blood evidence. A blood test that will not produce reliable evidence is unreasonable under the Fourth Amendment because there is no state interest to balance the invasion of the defendant's body.

Here, the police made the decision to take the blood draws in a timely fashion. There was clear indication that the procedure would provide evidence of Schall's blood alcohol level. The second Sutherland criterion is satisfied.

The third prong of the Sutherland test requires that exigent cireumstances exist for police proceeding without a search warrant. Sutherland, 683 P.2d at 1194. Because aleohol dissipates quickly in the blood, exigent cireumstances exist "when time has elapsed while the driver is transported to a hospital and the investigating officer is detained at the accident seene." Shepherd, 906 P.2d at 610. In this case, Schall had been airlifted to a hospital. - Exigent circumstances existed for investigating officers at the scene to direct a hospital blood draw. The third Sutherland criterion is satisfied.

Finally, a blood test must be a reasonable one, and must be conducted in a reasonable manner. Sutherland, 683 P.2d at 1194. A blood test is reasonable when it is "an effective means of determining the degree to which a person is under the influence of alcohol." Shepherd, 906 P.2d at 611. The police conduct the test in a reasonable manner when it is "administered in a hospital according to accepted medical practice." Id. There is no challenge in this case to the means the police chose to extract and test Schall's blood. The test was administered in a hospital, presumably in accord with accepted medical practice. The fourth Sutherland criterion is satisfied.

IIL

Accordingly, we reverse the trial court's suppression order and remand this case for further proceedings consistent with this opinion.

      . At the suppression hearing, counsel for Schall - requested suppression of the blood draw evidence. The trial court suppressed the blood draw evidence, and we review only this question.

      . Tragically, the drivers of the two trucks were brothers. f

      . In addition to the two facts listed, the officers obtained a statement from a paramedic who treated Schall who said that Schall smelled of alcohol. However, the trial court found that the police did not have this information when they dispatched an officer to the hospital to collect the blood sample from Schall.

      . A follow-up investigation performed many months after the accident revealed that all of the bottles were capped when broken. Troopers at the scene did not (and perhaps could not, due to the extent of the wreckage) ascertain whether all of the caps were on the bottles, and consequently did not know whether any bottles were open at the time of the accident.

      . The officer dispatched to the hospital did not testify at the suppression hearing, and the trial court found that there was no evidence that Schall consented. The trial court therefore correctly presumed that Schall did not consent to the blood draws.

      . § 18-3-106(1)(b), 6 C.R.S. (2001).

      . § 42-4-1301, 11 C.R.S. (2001).

      . - This is an important distinction from Reynolds, where the police did not know whether the defendant's misconduct had caused the accident. Reynolds, 895 P.2d at 1062.

      . - Schall apparently intends to claim at trial that the evidence is not reliable because laboratory tests of the same sample differed from each other, with one test indicating a blood alcohol level of .057 and the other indicating 111. This question is not before us in this interlocutory appeal, and we express no opinion regarding it.


author: Chief Justice MULLARKEY Justice COATS,

text:
    The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Timothy R. CASIAS, Defendant-Appellee.
    No. 02SA230.
    Supreme Court of Colorado, En Banc.
    Dec. 16, 2002.

      GF. Sandstrom, District Attorney, Steven Fieldman, Deputy District Attorney, Robert R. Case, Deputy District Attorney, Pueblo, Colorado, Attorneys for Plaintiff-Appellant.
    Michael S. Emmons, Pueblo, Colorado, Attorney for Defendant-Appellee.
   Chief Justice MULLARKEY

delivered the Opinion of the Court.

In this interlocutory appeal, the prosecution asks us to reverse a trial court order granting a motion to impose sanctions for destruction of evidence. Because no state destruction of evidence arises from the facts of this case, we reverse and remand.

I. Facts

Timothy R. Casias is charged with Criminal Attempt to Commit First Degree Murder; Assault in the First Degree; and two counts of a erime of violence. On October 16, 2001, three individuals armed with golf clubs confronted the victim in a park. The victim began fighting with one of the individuals when a fourth individual, the defendant Casias, joined the fight and shot the victim five times. The victim survived. The police arrested Casias after the victim and other witnesses identified him as the shooter.

After the police arrested Casias, two detectives interviewed him at the police station. The police made audio and video recordings of the interview using recording equipment that was wired to the interview room but located in a separate room. A third detective, who did not participate in the actual interview, monitored the recording equipment. During the interview, Casias admitted to shooting the victim and stated that the shooting was in self-defense and in defense of his friends.

Later, the parties discovered that the recordings of the interview were unintelligible because one recording device had been set at the wrong speed and the other device had malfunctioned. - Because these recordings were useless, Casias filed a Motion for Sance-tions: Destruction of Evidence. The trial court granted the motion, ruling that the appropriate sanction for the detectives' inadvertent failure to properly record the interview was to suppress the statements in the recordings and to suppress the detectives' testimony regarding their recollections of those statements.

The People now appeal this ruling as a CAR. 4.1 interlocutory appeal, or, in the alternative, as a C.A.R. 21 original proceeding. We clarify our jurisdictional basis for reaching the merits of this appeal before we analyze the substance of the trial court's ruling.

II. Jurisdiction

Initially, we note that this case is an improper CAR. 4.1 interlocutory appeal. Our analysis in People v. Braunthal, 31 P.3d 167, 171-72 (Colo.2001), provides explicit guidance regarding supreme court jurisdiction over interlocutory appeals. In Brawn-thal, we made clear that interlocutory jurisdiction is proper only when the ruling in question is made pursuant to Crim. P. 41(e) and (g) and Crim. P. 41.1(), namely where evidence arises from an unlawful search and seizure, an involuntary confession or admission, or an improper non-testimonial identification. Id. at 171.

C.A.R. 4.1 jurisdiction was not proper in Brawnthal because the suppression of evidence arose from a ruling granting a motion for sanctions regarding the destruction of evidence, not from a Crim. P. 4l(e),(g), or Crim. .P. 41.1G) motion. Id. at 172. Like wise, this appeal arises from Casias's Motion for Sanctions: Destruction of Evidence. The People attempt to argue that this appeal falls under Crim. P. 41(g) governing the suppression of involuntary confessions and admis-gions, but it is clear that this appeal does not arise from a motion to suppress. Casias never contended that his statements in the recordings were either involuntary or that they were made in violation of his Miranda rights.

Our narrow reading of C.A.R. 4.1 is consistent with the longstanding principle that CAR, 4.1 "may not be used to 'piggyback' issues not embraced by that rule to obtain review of pre-trial evidentiary decisions." People v. Lindsey, 660 P.2d 502 (Colo.1983) (citing People v. Morrison, 196 Colo. 319, 583 P.2d 924 (Colo.1978)); People v. McNulty, 173 Colo. 491, 493, 480 P.2d 560, 561 (1971) (dismissing an interlocutory appeal of suppressed testimony given by police officers who witnessed the crime, because Crim. P. 41 "does not encompass motions for suppression of testimonial evidence"). Therefore, CAR. 4.1 interlocutory jurisdiction is improper here.

Despite our lack of jurisdiction under C.A.R. 4.1, we may still reach the merits of this appeal by exercising original jurisdiction under C.A.R. 21. Exercise of our original jurisdiction is appropriate where the ruling in question "may have a significant impact on a party's ability to litigate the merits of a controversy" or where "an appellate remedy would not be adequate." See Braunthal, 31 P.3d at 172 (citing Jones v. Dist. Ct., 780 P.2d 526, 528 (Colo.1989); People v. Dist. Ct., 790 P.2d 332, 334-35 (Colo.1990)).

In this case, the trial court's suppression of Casias's statements, both in the faulty recordings and, more importantly, through the detectives' testimony, will significantly impede the prosecution's case. Furthermore, an appellate remedy would be inadequate because this case raises double jeopardy concerns-if the trial proceeds with wrongly suppressed evidence and Casias is acquitted, Casias may not be retried. See People v. Dist. Ct., 793 P.2d 163, 166 (Colo. 1990) (citing People v. Dist. Ct., 664 P.2d 247, 251 (Colo.1983).) Therefore, we find it proper to exercise our discretion under C.A.R. 21 to reach the merits of this appeal.

III. Analysis

The trial court granted Casias's motion to impose sanctions for destruction of evidence, but no state "destruction of evidence" arises from the facts of this case. The situation at hand, involving failed recordings, is clearly distinguishable from a situation involving a recording that initially is intact and then later is destroyed by the police. See, e.g., Braunthal, 31 P.3d at 169-170. When a recording is intact, the police have a clear duty to preserve the recording if it contains material evidence. Id. at 178; People v. Greathouse, 742 P.2d 334, 338 (Colo.1987) (citing California v. Trombetta, 467 U.S. 479, 489, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984)).

Here, the tapes were preserved. However, the recordings were unintelligible from the beginning because the recording equipment failed. The detectives did not actively render the tapes useless-their only action was to attempt to record the interview. Under these circumstances, no evidence was actually "destroyed." Cf. People v. Ortega, 672 P.2d 215, 219 (Colo.App.1983) (finding that no destruction of evidence occurred where photographs taken by police could not be developed, because "there was no evidence to destroy."). As in Ortega, the facts of this case indicate an imperfect collection of evidence, not the destruction thereof.

In fact, the trial court did not find that an actual destruction of evidence occurred here. Rather, the court suppressed significant testimony solely on the basis that sanctions were warranted because the detectives should have properly recorded the interview. Sanctions cannot be supported on such grounds. The established law is clear: police officers have no duty to record interviews with suspects. People v. Johnson, 987 P.2d 855, 860 (Colo.App.1998); People v. Raibon, 843 P.2d 46, 48-49 (Colo.App.1992) (holding that the failure to record an interview with a suspect does not violate that suspect's due process rights under the Colorado Constitution); see also United States v. Yunis, 859 F.2d 953, 961 (D.C.Cir.1988) (under federal law, "there is no constitutional requirement that confessions be recorded by any particular means"). Without a duty to record, we have no basis for punishing police officers who voluntarily but unsuccessfully attempt to record.

Furthermore, as a matter of policy, sanctions are not appropriate because we want to encourage, not discourage, the police from recording their interviews with suspects. We emphasize that recording interviews is good investigative practice, and we do not wish to place police officers in fear that a failed attempt to record will lead to the suppression of valuable evidence. See Raibon, 843 P.2d at 49.

As a final note, to the extent that the trial court's suppression of the detectives' testimony may be read as an evidentiary ruling as opposed to an improper, sanction, we still find no legal grounds for the suppression of the detectives' testimony. Foundational concerns are met here because the detectives have personal recollections of the interview. People v. Garcia, 826 P.2d 1259, 1264 (Colo.1992) (holding that if the jury can reasonably find that the witness has personal knowledge of the event, the witness should be permitted to testify). As for the trial court's other two evidentiary concerns, namely that (1) the detectives' personal recollections of the interview are weak and (2) the recordings are not available for purposes of impeaching the detectives, neither concern justifies excluding the detectives' testimony which, of course, is subject to cross-examination with the jury left to resolve issues of credibility and weight. See People v. Garcia, 826 P.2d at 1264. In short, the record reflects no evidentiary rationale to justify the suppression of the detectives' testimony.

The trial court's decision to suppress both Casias's statements and the detectives' recollections of those statements is unsupported by fact or law. Therefore, the trial court's order is reversed, and the case remanded.

Justice COATS specially concurs.

Justice COATS,

specially concurring.

While I too believe the trial court's order should be reversed before jeopardy attaches and preempts any effective remedy for the erroneous suppression of an extrajudicial confession in this case, I do not agree with the majority's conclusion that the prosecution lacks a right of interlocutory appeal under these circumstances. I do not agree with the majority's suggestion, see maj. op. at 855 n. 2, that separate statutory authorization for an interlocutory appeal should not be considered by us in the absence of express argument by the prosecution, or for that matter, that the prosecution failed to expressly invoke the authority of the statute in this case. I understand the majority's approach, however, to reserve for another day the question whether the General Assembly's 1986 adoption of section 16-12-102(2), 6 C.R.S. (2002), and its subsequent amendments to that statute, have broadened the right to an interlocutory appeal beyond that originally described in C.A.R. 4.1. I also note that in light of the decision to exercise this court's original jurisdiction and reverse the trial court's ruling anyway, the majority's jurisdictional analysis is wholly unnecessary to the resolution of the case before us.

I therefore concur in all but Section II of the majority opinion.

      . § 18-2-101 and § 18-3-102(1)(a), 6 CRS. (2002); § 18-3-202(1)(a), 6 C.R.S. (2002); § 16-11-309(2)(a)(I)(A), 6 CRS. (2002); § 1i6-11-309(2)(a)(I)(B), 6 C.R.S. (2002).

      . The People also cite to section 16-12-102(2), 6 C.R.S. (2002), as a possible basis for interlocutory jurisdiction, but do not raise any arguments regarding the statute or seek to distinguish between CAR. 4.1 and the statute. Because both parties rely on C.A.R. 4.1 and neither party addresses section 16-12-102, we' do not consider the statute.

      . In Braunthal, the People sought review of a trial court's suppression of testimony relating.to an incriminating segment of a videotape that the police inadvertently destroyed when a VCR "ate" that videotape. Id. at 171. Although the facts in Braunthal are distinguishable from those here, these factual distinctions do not affect our jurisdiction analysis.

      . - C.A.R. 4.1(a) provides, in relevant part:
      (a) Grounds. The state may file an interlocutory appeal in the supreme court from a ruling of a district court granting a motion under Crim. P. 41(e) and (g) and Crim. P. 41.1(i) made in advance of trial by the defendant for return of property and to suppress evidence or granting a motion to suppress an extra-judicial confession
      or admission; provided that ... the appeal is not taken for purposes of delay and the evidence is a substantial part of the proof of the charge pending against the defendant.
      Crim. P. 41(e) provides, in relevant part:
      (e) Motion for Return of Property and to Suppress Evidence. A person aggrieved by an unlawful search and seizure may move the district court for the county where the property was seized for the return -of the property and to suppress for use as evidence anything so obtained.
      Crim. P. 41(g) provides, in relevant part:
      (g) Suppression of Conféssion or Admission. A defendant aggrieved by an alleged involuntary confession or admission made by him, may make a motion under this Rule to suppress said confession or admission.
      Crim. P. 41.1(i) provides, in relevant part:
      (i) Motion to Suppress. A person aggrieved by an order issued under this Rule may file a motion to suppress nontestimonial identification seized pursuant to such order and the said motion shall be granted if there were insufficient grounds for the issuance or the order was improperly issued.

      . C.A.R. 21 provides, in relevant part:
      (a)(1) ... Relief under this rule is extraordinary in nature and is a matier wholly within the discretion of the Supreme Court. Such relief shall be granted only when no other adequate remedy, including relief available by appeal or under C.R.C.P. 106, is available.

      . In certain narrow situations, the failure to collect evidence may be tantamount to the suppression of evidence. See Garcia v. Dist. Ct., 197 Colo. 38, 46, 589 P.2d 924, 930 (Colo.1979) (regarding the collection and preservation of breathalyzer. samples). We decline to extend Garcia to the facts of this case because police officers have no duty to record interviews. People v. Raibon, 843 P.2d 46, 48-49 (Colo.App.1992); see discussion, infra.

      . Because no actual destruction of evidence occurred here, the trial court erred by applying the three-pronged destruction of evidence standard set forth in Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413, and Greathouse, 742 P.2d 334.