Court of Appeals No. A-11198, No. 6429.


Court of Appeals of Alaska.

Attorney(s) appearing for the Case

Andrew Steiner , Bend, Oregon, for the Appellant.

Diane L. Wendlandt , Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty , and Craig W. Richards , Attorneys General, Juneau, for the Appellee.

Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge.

Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law.


Judge, ALLARD.

A jury convicted Anthony W. Stiffarm Jr., a prisoner at Wildwood Correctional Center, of three counts of second-degree sexual assault1 based on allegations that he sexually assaulted a civilian tutor, K.B., in the staircase of the correctional center.

Stiffarm appealed his convictions to this Court. His primary claim on appeal was that the superior court violated his due process rights by permitting the State to introduce evidence of an out-of-court identification by the victim that Stiffarm claimed was too unreliable to be admissible at trial. Stiffarm also argued that the superior court erred in summarily rejecting the defense attorney's request for various Department of Corrections records pertaining to other inmates in the facility — records that the defense attorney claimed were directly relevant to the reliability of the victim's identification and the attorney's ability to effectively challenge that identification.

In our earlier decision in this case, we concluded that the superior court violated Stiffarm's discovery rights under Alaska Criminal Rule 16 by summarily denying this request for booking photos and basic information on the other inmates without holding an adequate inquiry.2 Because we could not determine whether Stiffarm had been prejudiced by the court's discovery error, we remanded the case to the superior court for additional proceedings.3

On remand, the superior court ordered the Department of Corrections to produce the requested discovery for an in camera review. Based on that review, the superior court determined that Stiffarm was entitled to the discovery he requested, and the court provided that discovery to the parties. The parties were then given the opportunity to argue whether the court's error in refusing to compel this discovery earlier entitled Stiffarm to a new trial. Following those proceedings, the superior court ruled that Stiffarm was not entitled to a new trial because (1) the discovery would not have altered the court's pretrial decision to admit K.B.'s identification of Stiffarm, and (2) there was no reasonable possibility that the discovery error affected the jury's verdict.

After we received the court's findings and decision on remand, we directed the parties to file supplemental briefs in this Court. We have now reviewed the supplemental briefing as well as the discovery materials at issue, and we agree with the superior court that Stiffarm was not prejudiced by the court's failure to provide this discovery. As the superior court noted, the additional discovery simply confirmed what the defense attorney argued to the jury — that there was a "pretty significant" population of Native Alaskan inmates at Wildwood who fit the victim's initial generic description of her assailant as a "round-faced Native." Significantly, however, the newly discovered materials did not reveal any Native Alaskan inmate who closely resembled Stiffarm. The discovery materials therefore did not undermine the State's strongest evidence against Stiffarm at trial — namely, a time-lapse video that showed a person who looked like Stiffarm outside the entry to the stairwell immediately before and after the sexual assault, and then showed that same person going into Stiffarm's cell. We therefore conclude that Stiffarm is not entitled to a new trial despite the erroneous discovery ruling that occurred in his case.

Stiffarm raises two other claims that we declined to resolve in our earlier decision. First, Stiffarm argues that the superior court erred when it ruled that K.B.'s out-of-court identification of him from a single photograph was reliable and admissible at trial. Second, he argues that the court erred by instructing the jury that this single-photo identification procedure was "legal and lawful."

We conclude that any error in admitting K.B.'s identification was harmless given the circumstances of this case.4 As already mentioned, the State's strongest evidence against Stiffarm was the time-lapse video that showed Stiffarm outside the stairwell entryway shortly before the assault occurred and immediately after the assault occurred. The video also showed the two inmates with a ladder who followed Stiffarm into the stairway and who testified at trial that they passed Stiffarm in the stairwell shortly before they came upon the victim who had just been assaulted. Lastly, the video showed Stiffarm exit the stairwell after the assault and then go into his assigned cell. Given this evidence, and given the fact that the additional discovery provided no reason to doubt the identification of Stiffarm on the video, we conclude that any error in admitting the victim's identification was harmless beyond a reasonable doubt. That is, we conclude that there is no reasonable possibility that the verdict would have been any different even without the victim's identification of Stiffarm as the person who attacked her.5

We reach a similar conclusion with regard to the court's instruction that the single-photo identification procedures used to obtain K.B.'s identifications were "legal and lawful." We agree with Stiffarm that this instruction was confusing and improper. As Stiffarm points out, his attorney never argued that the identification procedures were "illegal;" instead, he argued only that single-photo identifications were disfavored and not the best practice because they could lead to unreliable witness identifications. Instructing the jury that single-photo identification procedures were "legal and lawful" was therefore not only unnecessary but also potentially misleading, as it could be misinterpreted by the jury as the court's vouching for the legitimacy of this type of suggestive identification procedure.

We nevertheless conclude that, when viewed in context, any error in giving this instruction was harmless. We note that the rest of the court's instruction properly directed the jurors to "attribute such weight to the factual accuracy of the identification(s) as you see fit." The jurors were also separately instructed that they were the sole judges of the credibility of the witnesses, and that if the judge said anything at trial that seemed to suggest that the judge believed or disbelieved a witness, the jury was to "disregard [that suggestion] and form your own opinion." Moreover, as already noted, K.B.'s single-photo identification of Stiffarm was essentially cumulative of the other identification evidence in the case, which included the time-lapse video and the identification of Stiffarm by the two inmates. Based on this record, we are convinced that the instruction, although confusing and potentially misleading, did not appreciably affect the jury's verdict, and was therefore harmless error.6


We AFFIRM the judgment of the superior court.


* Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
1. AS 11.41.420(a)(1).
2. See Stiffarm v. State, 339 P.3d 1021, 1026 (Alaska App. 2014).
3. Id.
4. We note that the Alaska Supreme Court recently issued an opinion overruling Alaska's prior reliance on the Manson v. Brathwaite test for eyewitness identification and adopting a new multi-factor test. See Young v. State, 374 P.3d 395, 413 (Alaska 2016) (disapproving Manson v. Brathwaite, 432 U.S. 98 (1977) as outdated). Because we conclude that any error in admitting the victim's identification at trial was harmless beyond a reasonable doubt, we do not need to address how this multi-factor test might be applied in Stiffarm's case.
5. See Anderson v. State, 337 P.3d 534, 536 (Alaska App. 2014).
6. See Galauska v. State, 532 P.2d 1017, 1018 & n.6 (Alaska 1975); Price v. State, 647 P.2d 611, 615 (Alaska App. 1982); see also Love v. State, 457 P.2d 622, 632 (Alaska 1969).


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