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IN THE COURT OF APPEALS OF THE STATE OF ALASKA 

ANTHONY W. STIFFARM JR., 

Appellant, 

v. 

STATE OF ALASKA, 

Appellee. 

Court of Appeals No. A-11198 

Trial Court No. 3KN-09-1509 CR 

O P I N I O N

 No. 2437 — November 28, 2014 

Appeal from the Superior Court, Third Judicial District, 

Kenai, Carl Bauman, Judge. 

Appearances: Andrew Steiner, Bend, Oregon, for the 

Appellant. Diane L. Wendlandt, Assistant Attorney General, 

Office of Special Prosecutions and Appeals, Anchorage, and 

Michael C. Geraghty, Attorney General, Juneau, for the 

Appellee. 

Before: Mannheimer, Chief Judge, Allard, Judge, and 

Hanley, District Court Judge. * 

Judge ALLARD. 

* Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska 

Constitution and Administrative Rule 24(d). 
 

 

 

 

Following a jury trial, Anthony W. Stiffarm Jr., a prisoner at Wildwood 

Correctional Center, was convicted of three counts of second-degree sexual assault for 

sexually assaulting a woman in the prison stairwell. The sole issue at trial was identity 

— whether the assaults were committed by Stiffarm or by someone else. 

Stiffarm raises three main claims on appeal, all of which relate to the 

victim’s identification of Stiffarm as her assailant. First, Stiffarm argues that the victim’s 

identification of him based on a single photograph shown to her by corrections officers 

shortly after the assault should have been excluded as unreliable because it was the 

product of an “unnecessarily suggestive” identification procedure. Second, he argues 

that the court erred by instructing the jury at the State’s request that this single-photo 

identification procedure was “legal and lawful.” Third, he argues that the court violated 

his constitutional rights and his right to discovery under Alaska Criminal Rule 16 by 

refusing to compel the Department of Corrections to produce information about other 

inmates housed in the prison at the time of the sexual assaults, including booking photos, 

so that he could use that information to challenge the reliability and accuracy of the 

victim’s identification of him. 

We conclude that additional proceedings are required to determine whether 

Stiffarm was entitled to the discovery he requested from the Department of Corrections 

and, if so, whether the court’s refusal to compel that discovery prejudiced Stiffarm’s 

case. Because the superior court’s resolution of these issues may entitle Stiffarm to a 

new trial, we conclude that it is premature to address Stiffarm’s other claims of error. 

Factual and procedural background 

K.B. worked as a tutor in Building Ten of the Wildwood Correctional 

Center, a medium and minimum security facility in Kenai. At approximately 8:50 a.m. 

on July 22, 2009, shortly after K.B. arrived at work, an inmate assaulted her on a 

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stairwell landing between the second and third floors in Building Ten. The inmate 

placed his hand on her genital area and squeezed her breast underneath her bra. 

After assaulting K.B., the inmate climbed up the stairs to the third floor, 

brushing by two other inmates who were descending the stairs to the second floor. These 

other inmates discovered K.B. on the landing, visibly shaken and in a state of shock. 

Neither of the two inmates knew the name of the inmate who had brushed by them on 

the stairs. 

K.B. went to the shift supervisor’s office to report the assault. She was 

crying and upset. When asked to describe her assailant, she described him simply as a 

“round-faced native.” While in the shift supervisor’s office, K.B. looked at a wall 

display of the booking photographs of all 500 inmates in Wildwood, including the 256 

inmates in Building Ten where the assault took place. K.B. was unable to focus and 

unable to identify anyone. 

After a few minutes, K.B. was moved to a break room. Because some of 

the corrections officers suspected that Stiffarm might be the assailant, primarily because 

of his prior criminal history and the fact that he fit the general description of a “roundfaced native,” Stiffarm’s booking photograph was taken off the wall display and shown 

individually to K.B. to see if she could identify him as the man who assaulted her. K.B. 

immediately identified the 1" x 1" booking photograph of Stiffarm as depicting her 

assailant. K.B. was not shown photographs of any other inmates. 

The prison staff then reviewed a surveillance video that covered part of the 

third-floor hallway and part of the doorway leading to the stairwell. (At the time of the 

assault, there were no surveillance videos in the stairway itself.) This video showed 

various inmates walking through the hallway. At about 8:48:48 a.m., Stiffarm appears 

to enter the third-floor stairwell. A little over a minute later, at 8:50:03 a.m., the two 

other inmates enter the stairwell. Twenty-three seconds later, at 8:50:23 a.m., Stiffarm 

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appears to exit the third-floor stairwell, walk down the hallway, and enter his room. 

Twenty-six seconds later, at 8:50:59 a.m., one of the other two inmates exits the 

stairwell, walks down the hall, and reports the assault to a corrections officer. At 8:51:41 

a.m., the corrections officer can be seen running toward the stairwell entrance. 

The discovery dispute 

Early in the pretrial litigation of this case, Stiffarm filed a motion under 

Alaska Criminal Rule 16 asking the trial court to compel the Department of Corrections 

to disclose “a list of inmates at Wildwood Correctional Center, Building 10 ... with 

corresponding booking photos and biographical data including ethnicity, height, weight, 

eye, and hair color.” Stiffarm argued that he needed this information to properly 

evaluate the procedures used to identify him as K.B.’s assailant, and to challenge the 

accuracy and reliability of K.B.’s identification. 

The Department of Corrections opposed Stiffarm’s discovery request, 

claiming that the request was unduly burdensome and that compiling this information 

would take thirteen hours of labor. The Department also asserted, without any citation 

to authority, that booking photographs are “generally confidential and not subject to 

general release.” 

The district attorney’s office also opposed the discovery request, but on a 

different ground. The prosecutor argued that the surveillance video was dispositive of 

the issue of the assailant’s identity, and that Stiffarm’s discovery request, which was 

based on the need to challenge the victim’s identification, was therefore “unnecessary.” 

The superior court denied Stiffarm’s discovery motion, finding that the 

discovery request was a “fishing expedition” and was overly broad and unduly intrusive. 

Stiffarm later renewed his discovery motion on the eve of trial, arguing that 

he was unable to properly defend against K.B.’s identification of him without this 

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information. The court initially proposed a compromise solution, giving the defense the 

option of requesting production of a limited number of the booking photographs (a 

remedy Stiffarm argued was inadequate). But the court ultimately abandoned even this 

limited option as “too difficult” given the nearness of the trial, and the court instead 

denied Stiffarm’s renewed motion as untimely. 

Stiffarm’s motion to suppress K.B.’s identification 

Prior to trial, Stiffarm also moved to exclude the evidence of K.B.’s out-ofcourt identification of him on the ground that the single-photo procedure the Department 

of Corrections used was unnecessarily suggestive and resulted in an unreliable 

identification. 

Following an evidentiary hearing, the superior court agreed that the singlephoto identification procedure used by the corrections officers was unnecessarily 

suggestive. The court found that the corrections officers had used the type of flawed 

identification procedure that could lead to an unreliable identification and taint the 

victim’s memory, such that future identifications would also be unreliable.1 

After ruling that the identification procedure was unnecessarily suggestive, 

the trial judge applied the factors the United States Supreme Court articulated in Neil v. 

Biggers2 and Manson v. Brathwaite 3 to determine whether the victim’s identification was 

nevertheless sufficiently reliable under the totality of the circumstances to be admissible. 

The trial judge concluded that, given K.B.’s opportunity to view her assailant and the 

immediacy of her identification, the Biggers/Brathwaite factors — combined with the 

1 See, e.g., Tegoseak v. State, 221 P.3d 345, 350-53 (Alaska App. 2009). 

2 409 U.S. 188, 199-200 (1972). 

3 432 U.S. 98, 99 (1977). 

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independent corroborating evidence provided by the surveillance video — weighed in 

favor of admitting the identification. 

The trial and the jury’s verdict 

At trial, Stiffarm did not contest the allegation that K.B. had been sexually 

assaulted. The sole question for the jury was whether the State had proved Stiffarm’s 

identity as K.B.’s assailant beyond a reasonable doubt. 

To prove its case, the State relied primarily on the surveillance video, 

K.B.’s identification of Stiffarm, and the identifications of the other two inmates who had 

been in the stairwell. 

In response, the defense argued that the surveillance video was not 

dispositive of Stiffarm’s identity as the assailant because the time-lapse video captured 

only part of the stairwell entry and only fragments of time. The defense asserted that the 

real assailant entered and exited the stairwell without being captured on the video. The 

defense also argued that K.B.’s identification was unreliable because it was the product 

of an overly suggestive identification procedure that had irreparably tainted her memory 

of the assailant. Lastly, the defense argued that the identifications by the two inmates 

were inherently unreliable because the identifications were made after correctional staff 

had already concluded Stiffarm was the assailant. 

After requesting playbacks of K.B.’s testimony and the surveillance video, 

the jury found Stiffarm guilty of the three counts of second-degree sexual assault. 

This appeal followed. 

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Why we conclude that the trial court must reconsider whether Stiffarm was 

entitled to the discovery he requested from the Department of Corrections 

As noted above, Stiffarm asked the superior court to compel the Department 

of Corrections to provide him with booking photographs and other discovery concerning 

inmates housed in Building Ten at the time of the sexual assaults. 

In a ruling that the State now concedes is “puzzling,” the superior court 

denied Stiffarm’s discovery motion for three reasons:

 First, the superior court concluded that Stiffarm was not entitled to the 

discovery or production of information to attack the credibility of K.B.’s identification 

because the court had already ruled that, despite the unnecessarily suggestive nature of 

the single-photo procedure, K.B.’s identification was nonetheless reliable under the 

Biggers/Brathwaite totality of the circumstances test. 

This rationale was faulty. The superior court’s Biggers/Brathwaite ruling 

meant only that (in the court’s view) the identification was sufficiently reliable to qualify 

for admission into evidence under the due process clause.4 The court’s ruling did not 

mean that Stiffarm was prohibited at trial from attacking the reliability of the 

identification and the method through which it was obtained. Likewise, the superior 

court’s Biggers/Brathwaite ruling did not authorize the court to impede Stiffarm’s 

investigation into the reasons for doubting the accuracy of the identification, nor did it 

authorize the court to deny Stiffarm the benefits of legal processes for compelling 

discovery relevant to this issue. 

The superior court’s second stated reason for denying Stiffarm’s request for 

production was that, because the State had already furnished Stiffarm’s attorney with the 

surveillance video of the stairwell entrance, and this evidence appeared to be 

“dispositive” on the issue of identity, Stiffarm’s motion “appear[ed] to be a fishing 

See Brathwaite, 432 U.S. at 113-14. 

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4 
 

 

 

 

 

expedition” — an unnecessary and pointless exercise with little prospect of turning up 

relevant evidence. 

But if, as the State claimed and the superior court found, the surveillance 

video was “dispositive” of the question of the attacker’s identity, then there would have 

been no need for the State to introduce K.B.’s photographic identification at trial. And 

yet the prosecutor fought to introduce K.B.’s identification over Stiffarm’s objection. 

This litigation strategy strongly suggests that the prosecutor did not perceive the video 

as dispositive of the attacker’s identity. 

The superior court permitted the State to introduce K.B.’s pre-trial 

identification of Stiffarm, despite the court’s finding that the single-photo identification 

procedure was unnecessarily suggestive and the type of procedure that could lead to an 

unreliable and inaccurate identification. Having made that ruling, the superior court was 

duty bound to ensure that Stiffarm had a full and fair opportunity to challenge the 

reliability and accuracy of the identification — including appropriate pre-trial access to 

the discovery Stiffarm needed to litigate this issue. 

The superior court’s third reason for denying Stiffarm’s motion was that 

production of the inmate photographs would intrude upon “the confidentiality and 

privacy of the other inmates” and would entail undue “time and cost” for the Department 

of Corrections. 

This third rationale for denying Stiffarm’s motion is also flawed. Under 

5 Braham v. State, even if the Department of Corrections had convincingly demonstrated

that disclosure of this information to the defense would endanger persons or undermine 

the enforcement of the laws, or jeopardize some other important state interest, that would 

not automatically entitle the Department to withhold the information. Once the 

571 P.2d 631 (Alaska 1977). 

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5 
 

 

 

 

 

 

Department made this showing, the information would still be subject to in camera 

review by the court to establish its relevance to the defense case.6 

Here, the superior court simply accepted, at face value, the Department of 

Corrections’s unsupported assertions that the requested information was “confidential” 

and that it would be “overly burdensome” to produce the photographs from Department 

of Corrections records. 

When a litigant asks a court to order a third party (here, the Department of 

Corrections) to compile and produce documents, records, or other evidence that would 

be discoverable if in the possession or control of the prosecuting attorney, the court is 

authorized to consider the burden the discovery request would place on the third party.7 

But these burdens are clearly secondary to a defendant’s due process right to a fair 

opportunity to investigate the government’s case and to meet the government’s 

evidence.8 The superior court was therefore not entitled to summarily deny discovery 

of relevant information based on the Department of Corrections’s unsupported assertions 

that the information was confidential and the request unduly burdensome. 

The superior court was free to explore less burdensome options for the 

production of the information Stiffarm was requesting.9 Indeed, the court started to 

explore one alternative: allowing the defense attorney to select the dozen inmate 

booking photographs that the attorney believed were most probative of the suggestive 

nature of the single-photo identification procedure. But the court abandoned this option 

6 Id. at 643. 

7 See Alaska R. Crim. P. 17(c). 

8 See Braham, 571 P.2d at 643-44. 

9 See Fathke v. State, 951 P.2d 1226, 1230 (Alaska App. 1998) (noting that a court 

may establish “appropriate safeguards in the use and dissemination” of discoverable 

materials). 

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because the court concluded that it was simply too late to allow Stiffarm to engage in 

further discovery. This might have been a proper rationale if the court had granted 

Stiffarm’s earlier, timely request for discovery. But the court did not. 

Likewise, the superior court was not entitled to deny Stiffarm’s request on 

the ground that the requested materials might be confidential — an assertion that the 

Department of Corrections made but never supported.10 Even assuming inmate 

photographs are confidential, the superior court still had a duty to assess whether there 

was some alternative means to protect the affected inmates’ confidentiality while still 

honoring Stiffarm’s right to pretrial discovery — for example, a protective order 

restricting the defense attorney’s use and dissemination of the photographs. 

For these reasons, we conclude that the superior court violated Stiffarm’s 

discovery rights under Criminal Rule 16 when the court denied Stiffarm’s motion 

without further evaluation of these issues. 

The next question is whether Stiffarm was prejudiced by this violation of 

Rule 16. Because the superior court failed to conduct any review of the requested 

discovery materials, whether in camera or otherwise, we are left without an adequate 

record to determine whether Stiffarm was prejudiced by the superior court’s ruling — 

i.e., whether the requested materials would have directly aided Stiffarm’s case. 

The State argues that any error in refusing to grant Stiffarm his requested 

discovery was harmless because the surveillance video was “dispositive” of the issue of 

Stiffarm’s identity as K.B.’s assailant. While we agree that the video is strong evidence, 

10 See Johnson v. State, 889 P.2d 1076, 1081 (Alaska App. 1995) (stating that 

“Alaska Criminal Rule 16 permits the state to withhold disclosure of records whose contents 

are potentially discoverable only if a two-step procedure has been met: first, the state must 

make a threshold showing of good cause to maintain the records’ confidentiality; second, if, 

but only if, such a showing is made, the trial judge must review the records in camera and 

determine that the material therein is not relevant.” (citing Braham, 571 P.2d at 643)). 

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we are unable on the current record to determine whether it is as dispositive as the State 

claims. 

Accordingly, we remand the case for further proceedings to establish 

whether the requested discovery would have aided Stiffarm’s case and whether he is 

entitled to a new trial because of this violation of Criminal Rule 16. Because we are 

remanding the case for these additional proceedings, we find it unnecessary at this 

juncture to address the other claims Stiffarm raises in this appeal. 

Conclusion 

We REMAND this case to the superior court for further proceedings 

consistent with this decision. More specifically: 

Within 15 days of our decision, the superior court shall order the 

Department of Corrections to respond to Stiffarm’s discovery request and to produce the 

requested booking photographs and related information, either to the defendant’s 

attorney or to the court for in camera review. 

If the superior court determines that in camera review of the booking 

photographs and related information is required to protect an important state interest, and 

if the court ultimately decides that only a limited amount of this material should be 

disclosed to the defense, the superior court shall ensure that all of the information it 

reviewed in camera is retained by the court system (under seal, if appropriate), so that 

the material is available for appellate review, and the superior court shall put its reasons 

for limiting the disclosure on the record (again, under seal if appropriate). 

The superior court shall issue its final decision on these discovery matters 

within 60 days of our decision. 

Once the defendant has received the discovery to which the superior court 

finds he is entitled, the defendant shall be given an opportunity to litigate whether he was 

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prejudiced by the failure to receive this discovery prior to trial and whether he is 

therefore entitled to a new trial. 

The superior court shall issue its final decision on the question of a new trial 

within 120 days of our decision. 

If the superior court concludes that a new trial is warranted, the court has 

the authority to order this new trial, although the superior court must notify us of its 

decision. 

If the superior court concludes that a new trial is not warranted, the court 

shall put its decision in writing and shall transmit its decision to this Court. We will then 

allow the parties to file supplemental briefs addressing the superior court’s decision. 

Once we have received the parties’ supplemental briefs, we will resume our 

consideration of this issue and the other points raised in this appeal. 

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