OPINION
RABINOWITZ, Chief Justice.
This criminal appeal raises a speedy trial issue under Alaska Rule of Criminal Procedure 45. Maria Spencer pled nolo contendere to a charge of manslaughter. Pursuant to procedures mandated in
Oveson v. Municipality of Anchorage,
574 P.2d 801, 803 n.4 (Alaska 1978), her plea was explicitly conditioned on the right to appeal this speedy trial issue.
Thus, the question be
fore us is whether prosecution of Spencer was barred by Rule 45.
This rule provides that an accused must be brought to trial within 120 days from the date of arrest, arraignment, or date the charge is served upon the accused, whichever is first. The rule further provides for exclusion of certain periods from the computation of the 120 days within which the accused must be tried. It is the appropriateness of the superior court’s rulings as to various periods it excluded in computing the 120 days that Spencer challenges in this appeal.
On November 6, 1976, Spencer and her fiance, Jim Brown, were in Wasilla at the bar of the Holiday Lodge. After a brief argument, Spencer shot Brown while they were sitting at a table. The bullet struck Brown in both thighs, lodging in his right thigh.
Brown was taken to a hospital and treated. The wound was relatively insignificant and healed rapidly, Brown being discharged after only a short admission. Two weeks after release, complications in the form of pulmonary embolization developed, Brown was readmitted to the hospital, and subsequently died on December 7, 1976.
Spencer was arrested the evening of the shooting and charged with assault with a dangerous weapon. She was released from custody on November 12, 1976 after the assault charges were dismissed. On November 18, 1976, Spencer was indicted by the grand jury on an assault with a dangerous weapon charge and a bench warrant was issued the next day. On December 3, 1976, this indictment was dismissed and the bench warrant quashed.
According to the district attorney, the reason the indictment was dismissed was that the state knew of Brown’s hopeless prognosis in early December and was “hoping that the defendant would not learn of [Brown’s pending] death while there was a lesser charge outstanding, plead to it, and thus get away with an ADW when it should have been a manslaughter.” Following Brown’s death on December 7,1976, a criminal complaint charging manslaughter was filed in Palmer on December 10, 1976, and an indictment for manslaughter was returned on December 23, 1976. At a bail hearing on December 23, 1976, arraignment was set for December 29, 1976. The prosecutor did not request the issuance of a bench warrant at this time because Spencer had previously been represented by a public defender. He asked instead that the public defender be notified to produce Spencer. At the arraignment, neither Spencer nor the public defender who had previously represented her appeared since it is claimed that neither had been informed of the arraignment.
Upon Spencer’s failure to appear for arraignment on the manslaughter indictment a bench warrant was issued on December 29, 1976. Subsequent to receipt of the bench warrant, Alaska State Troopers made efforts to find Spencer. Information that she was leaving the state for Nevada around December 30, 1976 resulted in contacting airport security authorities in Anchorage and Nevada. In January, 1977, an address of a possible residence was checked and a friend of Spencer’s was contacted. During the spring, various contacts were made in the Anchorage and Palmer areas, none of which produced any useful information as to Spencer’s whereabouts. Trooper Feichtinger, through confidential informants, learned in the summer that Spencer was not in the state but possibly in California. Again, relevant authorities were contacted. On August 17, 1977, an unlawful flight to avoid prosecution warrant was issued. In December, 1977, a suspect held in
Charlotte, North Carolina was initially thought to be Spencer but was determined to be another individual. A short time after, Spencer began working in Chico, California, where she was finally located and arrested on January 31, 1978. She fought extradition on advice of counsel but was returned to Alaska on May 2, 1978, and arraigned on May 3, 1978. At her arraignment, counsel for Spencer made a Rule 45 motion.
In support of her motion for dismissal based on the failure of the state to comply with Rule 45, Spencer stated that following the dismissal of the assault with a dangerous weapon indictment she stayed in close contact with her counsel, checking with him every other day. Distraught over her fiance’s death, she made plans to leave Alaska around the end of December. She had inquired of her counsel whether she could leave and he informed her that the district attorney did not seem to want to pursue the matter and it seemed she could leave the state. She left and spent some time with her family and eventually returned to California. At first, she stayed with friends and later went to work at a bank and in January, 1978, was arrested on the Alaska charge.
The superior court heard extensive testimony at a series of hearings and received numerous briefs on the Rule 45 motion. The superior court held that the four month rule began to run on December 10,1976, the day the complaint on the manslaughter charge was issued. As to the period from December 10 to 29, 1976, the superior court held that there was insufficient information as to what efforts were taken during this period to show due diligence and this 19 day period was charged against the state.
As to the period after December 29, 1976, the superior court held that the state had shown reasonable diligence by virtue of the efforts undertaken by the state troopers.
Thus, the whole period prior to Spencer’s return to Alaska in May of 1978 was excluded from computation of the controlling 120-day period.
Spencer contends that the superior court was in error in failing to hold that the four month rule had been violated. First,
she alleges that the “time against the state should run from the date of the original arrest.” The superior court held that the manslaughter complaint issued on December 10,1976 constituted a new charge based on new evidence not available at the time of the original arrest and thus excludable under Rule 45(c)(1).
Rule 45(c) (emphasis added) provides in part:
When Time Commences to Bun.
The time for trial shall begin running, without demand by the defendant, as follows:
(1) From the date the defendant is arrested, initially arraigned, or from the date the charge (complaint, indictment, or information) is served upon the defendant, whichever is first.
The arrest, arraignment, or service upon the defendant of a complaint, indictment, or information, relating to subsequent charges arising out of the same conduct,
or the refiling of the original charge,
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OPINION
RABINOWITZ, Chief Justice.
This criminal appeal raises a speedy trial issue under Alaska Rule of Criminal Procedure 45. Maria Spencer pled nolo contendere to a charge of manslaughter. Pursuant to procedures mandated in
Oveson v. Municipality of Anchorage,
574 P.2d 801, 803 n.4 (Alaska 1978), her plea was explicitly conditioned on the right to appeal this speedy trial issue.
Thus, the question be
fore us is whether prosecution of Spencer was barred by Rule 45.
This rule provides that an accused must be brought to trial within 120 days from the date of arrest, arraignment, or date the charge is served upon the accused, whichever is first. The rule further provides for exclusion of certain periods from the computation of the 120 days within which the accused must be tried. It is the appropriateness of the superior court’s rulings as to various periods it excluded in computing the 120 days that Spencer challenges in this appeal.
On November 6, 1976, Spencer and her fiance, Jim Brown, were in Wasilla at the bar of the Holiday Lodge. After a brief argument, Spencer shot Brown while they were sitting at a table. The bullet struck Brown in both thighs, lodging in his right thigh.
Brown was taken to a hospital and treated. The wound was relatively insignificant and healed rapidly, Brown being discharged after only a short admission. Two weeks after release, complications in the form of pulmonary embolization developed, Brown was readmitted to the hospital, and subsequently died on December 7, 1976.
Spencer was arrested the evening of the shooting and charged with assault with a dangerous weapon. She was released from custody on November 12, 1976 after the assault charges were dismissed. On November 18, 1976, Spencer was indicted by the grand jury on an assault with a dangerous weapon charge and a bench warrant was issued the next day. On December 3, 1976, this indictment was dismissed and the bench warrant quashed.
According to the district attorney, the reason the indictment was dismissed was that the state knew of Brown’s hopeless prognosis in early December and was “hoping that the defendant would not learn of [Brown’s pending] death while there was a lesser charge outstanding, plead to it, and thus get away with an ADW when it should have been a manslaughter.” Following Brown’s death on December 7,1976, a criminal complaint charging manslaughter was filed in Palmer on December 10, 1976, and an indictment for manslaughter was returned on December 23, 1976. At a bail hearing on December 23, 1976, arraignment was set for December 29, 1976. The prosecutor did not request the issuance of a bench warrant at this time because Spencer had previously been represented by a public defender. He asked instead that the public defender be notified to produce Spencer. At the arraignment, neither Spencer nor the public defender who had previously represented her appeared since it is claimed that neither had been informed of the arraignment.
Upon Spencer’s failure to appear for arraignment on the manslaughter indictment a bench warrant was issued on December 29, 1976. Subsequent to receipt of the bench warrant, Alaska State Troopers made efforts to find Spencer. Information that she was leaving the state for Nevada around December 30, 1976 resulted in contacting airport security authorities in Anchorage and Nevada. In January, 1977, an address of a possible residence was checked and a friend of Spencer’s was contacted. During the spring, various contacts were made in the Anchorage and Palmer areas, none of which produced any useful information as to Spencer’s whereabouts. Trooper Feichtinger, through confidential informants, learned in the summer that Spencer was not in the state but possibly in California. Again, relevant authorities were contacted. On August 17, 1977, an unlawful flight to avoid prosecution warrant was issued. In December, 1977, a suspect held in
Charlotte, North Carolina was initially thought to be Spencer but was determined to be another individual. A short time after, Spencer began working in Chico, California, where she was finally located and arrested on January 31, 1978. She fought extradition on advice of counsel but was returned to Alaska on May 2, 1978, and arraigned on May 3, 1978. At her arraignment, counsel for Spencer made a Rule 45 motion.
In support of her motion for dismissal based on the failure of the state to comply with Rule 45, Spencer stated that following the dismissal of the assault with a dangerous weapon indictment she stayed in close contact with her counsel, checking with him every other day. Distraught over her fiance’s death, she made plans to leave Alaska around the end of December. She had inquired of her counsel whether she could leave and he informed her that the district attorney did not seem to want to pursue the matter and it seemed she could leave the state. She left and spent some time with her family and eventually returned to California. At first, she stayed with friends and later went to work at a bank and in January, 1978, was arrested on the Alaska charge.
The superior court heard extensive testimony at a series of hearings and received numerous briefs on the Rule 45 motion. The superior court held that the four month rule began to run on December 10,1976, the day the complaint on the manslaughter charge was issued. As to the period from December 10 to 29, 1976, the superior court held that there was insufficient information as to what efforts were taken during this period to show due diligence and this 19 day period was charged against the state.
As to the period after December 29, 1976, the superior court held that the state had shown reasonable diligence by virtue of the efforts undertaken by the state troopers.
Thus, the whole period prior to Spencer’s return to Alaska in May of 1978 was excluded from computation of the controlling 120-day period.
Spencer contends that the superior court was in error in failing to hold that the four month rule had been violated. First,
she alleges that the “time against the state should run from the date of the original arrest.” The superior court held that the manslaughter complaint issued on December 10,1976 constituted a new charge based on new evidence not available at the time of the original arrest and thus excludable under Rule 45(c)(1).
Rule 45(c) (emphasis added) provides in part:
When Time Commences to Bun.
The time for trial shall begin running, without demand by the defendant, as follows:
(1) From the date the defendant is arrested, initially arraigned, or from the date the charge (complaint, indictment, or information) is served upon the defendant, whichever is first.
The arrest, arraignment, or service upon the defendant of a complaint, indictment, or information, relating to subsequent charges arising out of the same conduct,
or the refiling of the original charge,
shall not extend the time, unless the evidence on which the new charge is based was not available to the prosecution at the time the defendant was
either
initially arrested,
arraigned, or served with the original charge, and a showing of due diligence in securing defendant for the original charges is made by the prosecution;
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We agree with the superior court that Brown’s death was evidence which triggered a new commencement date for the running of time under Rule 45.
A related question was considered in
Adams v. State,
598 P.2d 503 (Alaska 1979). Although over three months elapsed from the time of Adams’ arrest until a complaint was filed, we held that the entire period was properly excludable for purposes of Criminal Rule 45:
[T]here can be no doubt that from the time of Adams’ arrest on August 28,1975, to and including the date upon which the complaint was filed, January 7, 1976, there was good reason to believe that O’Neil might die at any moment. The state had to proceed in one of two ways: it could bring an immediate, nonhomicide charge, such as mayhem, or it could delay the filing of any charge, as it elected to do, in order to determine whether O’Neil's injuries would prove fatal. We think the state was entitled to delay the filing of a specific charge for a reasonable period of time and that such period of delay must be excluded in computing the time for Adams’ trial under Rule 45.
598 P.2d at 507 (footnote omitted). The prosecution was faced with a similar dilemma in the instant case. Thus, it was proper for the prosecution to have dismissed the assault charges,
awaiting what was seemingly the certain death of the victim in order to charge Spencer with manslaughter. In a situation involving the delayed death of the victim, the 120-day period under Rule 45(c)(1) commences from the filing of the homicide complaint or indictment (if the defendant is not already in custody). Thus, we reject Spencer’s argument that the relevant starting point for determination of compliance with Rule 45 was the date of her arrest on the assault with a dangerous weapon complaint.
As for the period from December 10 to December 29, the superior court held that this period ran against the state and this ruling is not challenged. The major thrust of Spencer’s Rule 45 motion was directed to the period from December 29, 1976, when the bench warrant was issued after Spencer’s failure to appear at her arraignment of the manslaughter charge, until January 31, 1978, when she was arrested in California.
Spencer claims that the state failed to use due diligence to locate her and return her to Alaska during this period which lasted over a year.
Spencer also claims that she was severely hampered in her ability to attack the state’s efforts as lacking due diligence for this period because the state troopers relied upon confidential informants, whose names were not revealed to the defense, in attempting to locate Spencer. We must consider this claim prior to ruling on the question of due diligence. Specifically, State Trooper Feichtinger stated that he had talked with five confidential informants who were all contacted during the summer of 1977, and who told him that Spencer had not been seen and may have been in California. One of these five informants Feichtinger had known for one year previously and the others for a couple of months to a year.
The state has the privilege to refuse to reveal the identity of confidential informants. Alaska Rule of Evidence 509(a) provides:
Rule of privilege.
The United States, the State of Alaska and sister states have a privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of law to a law enforcement officer or member of a legislative committee or its staff conducting an investigation.
There are three exceptions to the privilege, none of which are applicable to the present case: voluntary disclosure, relevancy to the merits, and potentially illegally seized evidence. The identity of the informants has not been voluntarily disclosed nor are the informants witnesses.
The confidential informants are not claimed to be able to give testimony relating to the merits of the manslaughter charge against Spencer.
Nor did the information supplied to the
prosecution result in evidence whose seizure is challenged by the defendant.
Furthermore, we are not persuaded that any additional exception to this governmental privilege, is called for by the factual circumstances of this case; for law enforcement personnel have significant interests in the maintenance of informers as an important method of gathering information. As the commentary to Alaska Rules of Evidence states:
[Rule 509] recognizes the use of informers as an important aspect of law enforcement, whether the informer is a citizen who steps forward with information or a paid undercover agent. In either event, the basic importance of anonymity in the effective use of informers is apparent, and the privilege of withholding their identity was well established at common law. McCormick (2d ed.) § 111; 8 Wigmore § 2374.
Thus, we conclude no error occurred in the court’s determination to not require release of the names of the confidential informants.
We next address the question of whether a sufficient showing of due diligence in efforts to locate Spencer was made by the state from December 29, 1976, until Spencer’s arrest over a year later in California. As to this question, the provisions of Criminal Rule 45(d)(4) are controlling. This portion of Rule 45 provides that in computing the time for trial the following periods shall be excluded:
(4) The period of delay resulting from the absence or unavailability of the defendant. A defendant should be considered absent whenever his whereabouts are unknown and in addition he is attempting to avoid apprehension or prosecution or his whereabouts cannot be determined by due diligence. A defendant should be considered unavailable whenever his whereabouts are known but his presence for trial cannot be obtained or he resists being returned to the state for trial.
Spencer emphasizes in her argument that if her counsel had been contacted in December, 1976, he could have made her available. While this argument is proper justification for finding, as the superior court did, that the period of nineteen days from the filing of the complaint until the arraignment be charged against the state, it is far from determinative of whether the period after the arraignment on December 29 should be tolled or excluded for our computation of the 120-day period.
Spencer argues that because of the state’s lack of due diligence during the December 10 through December 29 period, the subsequent effort to locate the accused does not serve to toll the 120-day period: all delay after December 29 is chargeable to the state. We reject this argument. In its broadest outlines, it would mean that any minor lack of diligence for any period of time could then be capitalized on by a defendant if he or she could elude capture for the remainder of the Rule 45 period. Even
if a period of lack of diligence chargeable against the state exists, the state’s subsequent efforts showing due diligence to find her will again toll the running of the 120 days.
Further, although the state may have failed to follow a particular path of investigation, that alone will not necessarily result in a finding of a lack of diligence. Spencer points to the fact that the police never attempted to contact her attorney. Admittedly, the police did not pursue this method of search immediately upon issuance of the bench warrant. However, although Spencer claims to have been in Alaska on December 29, she left the state shortly thereafter and any attempt to contact her attorney at that point would have been ineffectual in producing her.
A failure to follow a particular method of finding an accused as a lack of diligence was considered in
Commonwealth v. Jones,
256 Pa.Super. 366, 389 A.2d 1167, 1170 (1978). The defendant was well known to one police officer. However, the investigative officers on the case were unaware of this and used other means to find the defendant. Numerous searches were conducted and the circulation of the defendant’s picture to various authorities eventually resulted in his arrest. In these circumstances, the court stated:
[W]e find that the Commonwealth exercised due diligence in locating appellant. Although the police could have pursued other avenues to locate appellant, that is not the controlling factor. It is simply not required that the Commonwealth exhaust every conceivable method of locating a defendant. Rather, reasonable steps must be taken.
389 A.2d at 1170. We are persuaded to adopt a similar approach in this case in determining whether the state has exercised due diligence.
The affidavits and testimony of the state troopers show numerous efforts made over a period of the entire year to find Spencer. The search for her was never abandoned.
Individuals and addresses in Anchorage were checked to determine her whereabouts.
Once it was clear she might be out of state, the warrant for her arrest with a description was circulated nationwide and resulting leads and possible suspects were checked out.
It would be unreasonable to require the state to take further efforts than those present in this case. A nationwide manhunt would be expensive and
time-consuming, given the resources of law enforcement agencies and the numerous individuals under warrant in various states. Reasonable and numerous steps were taken and we conclude that as a result due diligence was exercised by the state. Thus, the superior court did not err in finding this period excluded and therefore correctly denied Spencer’s Rule 45 motion.
AFFIRMED.