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Bragg v. State (10/19/2018) ap-2619

Bragg v. State (10/19/2018) ap-2619

                                                                         NOTICE
  

             The text of this opinion can be corrected before the opinion is published in the  

            Pacific Reporter.  Readers are encouraged to bring typographical or other formal  

            errors to the attention of the Clerk of the Appellate Courts:  



                                               303 K Street, Anchorage, Alaska  99501
  

                                                               Fax:  (907) 264-0878
  

                                                    E-mail:  corrections @ akcourts.us
  



                       IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



DAVID WILLIAM BRAGG,  



                                                 Appellant,                                   Court of Appeals No. A-12342  

                                                                                           Trial Court No. 3AN-12-2262 CR  

                                     v.  



STATE OF ALASKA,                                                                                             O P I N I O N  



                                                 Appellee.                                    No. 2619 - October 19, 2018  



                                                   

                         Appeal  from  the  Superior  Court,  Third  Judicial  District,  

                         Anchorage, Michael L. Wolverton, Judge.  



                                                                                                                           

                         Appearances: Carolyn Perkins, Law Offices of Carolyn Perkins,  

                                                                                                                             

                         Salt Lake City, Utah, under contract with the Office of Public  

                                                                                                     

                         Advocacy, Anchorage, for the Appellant.  Donald Soderstrom,  

                                                                                                     

                         Assistant   Attorney  General,   Office   of   Criminal   Appeals,  

                                                                                                                      

                         Anchorage, and Jahna Lindemuth, AttorneyGeneral, Juneau, for  

                         the Appellee.  



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

                                                                            

                         Judges.  



                         Judge ALLARD.  



                         David William Bragg was convicted, following a jury trial, of two counts                                                    



of sexual abuse of a minor in the first degree for sexually abusing his fifteen-year-old                                            


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                                                                                                                    1  

biological daughter, who had recently come to live with him.                                                           On appeal, Bragg argues             



that the superior court erred in denying his motion to dismiss the indictment.                                                                            In his         



motion, Bragg argued that the prosecutor failed to provide exculpatory evidence to the                                                                           



                                                                                                        2  

                                                                                                                                                              

grand jury in violation of her duty under                                    Frink v. State            .   For the reasons explained here,  



                                                                                                                                                           

we agree with the superior court that the prosecutor complied with her duty under Frink.  



                                                                                                                                                                   

                          Bragg also argues that it was plain error for the superior court to fail to  



                                                                                                                                                                   

instruct the jury that its verdict on Count I had to be based on a different incident of  



                                                                                                                                                  

sexual abuse than its verdict on Count II.  Because this point of law was adequately  



                                                                            

explained to the jury, we find no plain error.  



                                                                                                                                                       

                          Accordingly,  we  reject  both  claims  of  error  and  we  affirm  Bragg's  



convictions.  



             Bragg's claim that the prosecutor violated her duty under Frink v. State  

                                                                                                                                               



                          Under  Alaska  law,  a  prosecutor  has  an  affirmative  duty  to  provide  

                                                                                                                                                                         

exculpatory evidence to the grand jury.3  

                                                                                                                                               

                                                                                 This duty is consistent with the prosecutor's  



                                                                                                                                       4  

                                                                                                               

ethical duty to  "seek justice, not simply  indictment or conviction."                                                                                         

                                                                                                                                            But it is also  



                                                                                                                                                           

grounded in the important protective role that the grand jury is intended to serve within  



                                                                   5  

                                                                                                                                                  

Alaska's  criminal  justice  system.                                     As  the  Alaska  Supreme  Court  has  repeatedly  



       1     AS 11.41.434(a)(2).  



      2      Frink v. State, 597 P.2d 154 (Alaska 1979).  



       3     Id.  



      4      Id. ;  see also ABA Standards for Criminal Justice: Prosecution and Defense Functions  



 3-1.2(b) (4th ed. 2015) ("The primary duty of the prosecutor is to seek justice within the  

bounds of the law, not merely to convict.").  



       5     See  Alaska Const. art. I,  8 ("No person shall be held to answer for a   capital,   or  



                                                                                                                                              (continued...)  



                                                                               - 2 -                                                                         2619
  


----------------------- Page 3-----------------------

emphasized,"protection                 oftheinnocent           against oppression andunjust                   prosecution"ranks   

among the grand jury's most vital functions.                            6  



                                                                                                                                        

                      Under Alaska Criminal Rule 6(q), the grand jury is required to find an  



                                                                                                                   

indictment "when all the evidence taken together, if unexplained or uncontradicted,  



                                                                                                                                        

would warrant a conviction of the defendant."  This rule also provides that "[w]hen the  



                                                                                                                                       

grand jury has reason to believe that other available evidence will explain away the  



                                                                                                                                        

charge, it shall order such evidence to be produced and for that purpose may require the  



                                                                             7  

                                                                                                                                        

prosecuting  attorney  to  subpoena  witnesses."                                  Because  the  grand  jury  cannot  be  



                                                                                                                                   

expected to call for evidence that it does not know about, the Alaska Supreme Court  



                                                            8  

                                                   

created the affirmative duty in Frink. 



                                                                                                                                     

                      Although Frink imposes an affirmative duty on the prosecutor, the duty  



                                            9  

                                                                                                                                       

                                                The Alaska Supreme Court did not intend to "turn the  

remains narrowly defined. 



                                                            10  

                                                                                                                                    

prosecutor into a defense attorney."                             The exculpatory nature of the evidence must  



      5    (...continued)  



otherwise infamous crime, unless on a presentment or indictment of a grand jury ... .");  

                                                                                                                                   

AS 12.80.020; Alaska R. Crim. P. 7(a) (providing that felony offenses "shall be prosecuted  

                                                                                                

by indictment, unless indictment is waived").  



     6     Cameron v. State, 171 P.3d 1154, 1156 (Alaska 2007) (quoting Frink, 597 P.2d at  

                                                                                                                                          

165).  



     7     Alaska R. Crim. P. 6(q) (emphasis added).  



      8    Frink v. State, 597 P.2d 154, 165 (Alaska 1979) (explaining that the "requirement that  



the prosecutor present exculpatory evidence to the grand jury is implicit in the mandate of  

                                                                                                                           

Criminal Rule 6(q)").  



     9     Id. at 166; see also Preston v. State, 615 P.2d 594, 602 n.21 (Alaska 1980); Rogers  

                 

v. State, 232 P.3d 1226, 1244 (Alaska App. 2010); Hurn v. State, 872 P.2d 189, 191 (Alaska  

App. 1994).  



      10   Frink, 597 P.2d at 166.  



                                                                  -  3 -                                                            2619
  


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                                                11  

therefore be self-evident.                          The prosecutor is likewise not required to "develop evidence                                      

for the defendant" or to present "every lead possibly favorable to the defendant."                                                                          12  



                                                                                                                                                   

                          With these principles in mind, we turn to Bragg's claim that the prosecutor  



                                                                        

violated her duty under Frink in this case.  



                                                                                                                                                          

                          Bragg's  claim  rests  on  differences  between  the  victim's  first  police  



                                                                                                                                                           

interview and her second police interview. The police investigation into Bragg's sexual  



                                                                                                                                                   

abuse of his fifteen-year-old daughter began with a report to the Office of Children's  



                                                                                                                                                                         

Services.  As a result of this report, Bragg's daughter was interviewed by the police.  



                                                                                                                                                          

During this first interview, the police detective asked the daughter if she was having  



                                                                                                                                 

sexual relations with Bragg.  In response, the daughter paused for a time, and then she  



                                                                                                                                                                 

laughed and stated that it was not true.  When the detective repeated the question, the  



                                                                                                                                                           

daughter paused again, and then she shook her head "no." Despite this denial, the Office  



                                                                                                                                                                 

of Children's Services found cause to believe that Bragg was sexually abusing his  



                                                                                                                                                      

daughter, and the daughter was removed from Bragg's home and placed with relatives.  



                                                                                                                                                                   

                          While Bragg's daughter was living with these relatives, she disclosed to an  



                                                                                                                                                                   

adult friend that she was "dating" Bragg. The adult friend recorded this conversation on  



                                                                                                                                                                         

his mobilephone, and the conversation was reported to the Office of Children's Services.  



                                                                                                                                                         

This report led to a second police interview by the same detective.   At this second  



                                                                                                                                                 

interview, the daughter admitted that she was having sexual relations with Bragg.  



                                                                                                                                                                  

                          The detective who conducted both interviews was called as a witness at the  



                                                                                                                                                             

grand jury hearing. The prosecutor asked the detective whether Bragg's daughter made  



       11    See,  e.g.,   Cathey  v.  State,  60  P.3d  192,  195  (Alaska  App.  2002)  (describing  



exculpatory evidence as evidence that "tends, in and of itself, to negate the defendant's                  

guilt") (internal citations omitted).  



       12    Frink, 597 P.2d at 166; Preston, 615 P.2d at 602 n.21; Rogers, 232 P.3d at 1244;  

                                                                                                           

Hurn, 872 P.2d at 191.  



                                                                               - 4 -                                                                         2619
  


----------------------- Page 5-----------------------

"any disclosures of sexual abuse" during the first interview.  The detective answered,  

                                                                                                                      



"She did not."  The detective then explained that the daughter did not tell the police  

                                                                                                                            



about her sexual relations with Bragg until the second interview.  The grand jury later  

                                                                                                              



heard from the daughter, who testified directly about the sexual abuse.  

                                                                                                              



                    After  Bragg  was  indicted,  Bragg's  defense  attorney  filed  a  motion  to  

                                                                                                                                  



dismiss the indictment under Frink.  According to the defense attorney, there was an  

                                                                                                                                  



important difference between telling the jury that Bragg's daughter had "fail[ed] to  

                                                                                                                                  



disclose" any sexual abuse in the first interview as opposed to telling the grand jury that  

                                                                                                                                



Bragg's daughter had affirmatively denied the sexual abuse in the first interview.  The  

                                                                                                                                



defense attorney argued that the prosecutor was required to make this distinction clear  

                                                                                                      



because the daughter's contradictory responses in the two interviews cast doubt on her  

                                                                                                                                 



overall credibility.   The superior court denied the motion to dismiss the indictment,  

                                                                                                                    



ruling that the prosecutor had complied with her duty to provide exculpatory evidence  

                                                                                        



under Frink.  

           



                    We agree with the superior court that the prosecutor complied with her  

                                                                                                         



obligations under Frink. Importantly, the prosecutor did not hide the fact that the victim  

                                                                                                                            



had provided inconsistent responses in the two interviews.   Instead, the prosecutor  

                                                                                                                     



directly elicited this fact from the detective who conducted both interviews.  Although  

                                                                                                                       



Bragg criticizes the manner in which the prosecutor elicited this evidence, the prosecutor  

                                                                                                                      



was not required to do more than what she did.  It is enough that the prosecutor pointed  

                                                                                                                          



out the inconsistency to the grand jury; she was not required to take the additional step  

                                                                                                                               



of trying to impeach the victim's credibility, as Bragg appears to believe was required.  

                                                                                                                        



                    Moreover,  whatever  distinction  might  exist  between  the  prosecutor's  

                                                                                                                  



characterization of the first interview as a "failure to disclose" sexual abuse rather than  

                                                                                                                               



an affirmative denial of the sexual abuse is not significant in this context. What matters  

                                                                                                                           



is that the prosecutor informed the grand jury of the salient fact that there had been two  

                                                                                                                                



                                                               -  5 -                                                        2619
  


----------------------- Page 6-----------------------

 interviews with Bragg's daughter and the sexual abuse was not disclosed until the second                                                                                                                                                                                                                                                                                                                        



 interview.   Had the grand jury wanted to know more about the two interviews, they had                                                                                                                                                                                                                                                                                                                                          



  sufficient   information  from which                                                                                                                                               they   could   do   so.     They   likewise   had   sufficient  



 information to question Bragg's daughter about her inconsistent responses if they had                                                                                                                                                                                                                                                                                                                                          



 questions about her credibility after hearing her grand jury testimony. Because the grand                                                                                                                                                                                                                                                                                                                             



jury was given the information it needed to fulfill its obligations under Criminal Rule                                                                                                                                                                                                                                                                                   



  6(q), we agree with the superior court that the prosecutor complied with her duty under                                                                                                                                                                                                                                                                                                                             



 Frink, and we find no merit to this claim of error.                                                                                                                                                                         



                                  Bragg's claim that the court committed plain error by failing to instruct the                                                                                                                                                                                                                                                                                    

                                jury on the need for factual unanimity                                                                                                        



                                                                    Bragg argues that the trial court erred in failing to instruct the jury that their                                                                                                                                                                                                                                                                       



 verdict on Count I had to be based on a different incident than its verdict on Count II.                                                                                                                                                                                                                                                                                                                                                            



 We agree with the State that this claim is meritless. The record shows that the trial court                                                                                                                                                                                                                                                                                                                             



 instructed the jury that the two counts were based on two separate incidents of abuse, and                                                                                                                                                                                                                                                                                                                                      



 that the jurors had to unanimously agree on the conduct underlying each count.                                                                                                                                                                                                                                                                                                                                                    In  



 addition, any remaining ambiguity on this matter was sufficiently clarified by both                                                                                                                                                                                                                                                                                                                                      

 parties in their closing arguments.                                                                                                                                         13  



                                   Conclusion  



                                                                                                                                                                                                                                                                 

                                                                    The judgment of the superior court is AFFIRMED.  



                   13              See Riley v. State, 60 P.3d 204, 208 (Alaska App. 2002) (explaining that the Court has  



                                                                                                                                                                                                                                                                                                                                                                                                                                     

 "repeatedly held that ambiguities and potential flaws in jury instructions can be cured by the  

 arguments of the parties").  



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