Opinion
Court of Appeals No. A-12387 No. 6705
09-19-2018
FRANK JAMES SAMBRANO, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Callie Patton Kim, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Donald Soderstrom, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
NOTICE 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. Trial Court No. 3AN-14-5482 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Philip R. Volland, Judge. Appearances: Callie Patton Kim, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Donald Soderstrom, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge SUDDOCK.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Frank James Sambrano was charged with attempted first-degree murder, attempted first-degree assault, third-degree assault, and several misdemeanors after he assaulted a police officer with a knife. At his jury trial, Sambrano testified that his knife thrust at the officer was not intended to inflict harm, but was rather a suicide attempt — a feigned assault intended to induce the other officers to shoot him.
The jury rejected this defense and found Sambrano guilty as charged. Sambrano's defense attorney then filed a motion for a new trial. In this motion, the defense attorney asserted that he possessed evidence — a defense investigator's interview with Sambrano's sister—suggesting that the police might have tampered with physical evidence at the crime scene. The defense attorney further claimed that Sambrano's sister had made similar statements to the prosecutor during a trial preparation interview, and that the prosecutor's failure to independently notify the defense of Sambrano's sister's statements constituted a violation of the State's duty to disclose exculpatory evidence under Brady v. Maryland.
Brady v. Maryland, 373 U.S. 83, 87; 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
Because the defense attorney conceded that the defense team already knew about Sambrano's sister's statements, the judge ruled that there had been no Brady violation. For the reasons explained in this opinion, we affirm the trial judge's decision.
Background facts and proceedings
In June of 2014, the Anchorage police were summoned to a domestic dispute at Frank Sambrano's family home. As officers were preparing to arrest him, Sambrano, who was armed with a steak knife, swung his arm at Officer Michael Wisel. Wisel stepped inside Sambrano's reach and trapped Sambrano's knife arm, thus avoiding injury. Wisel and three other officers at the scene took Sambrano to the ground and subdued him. During this process, the steak knife flew from Sambrano's hand and landed on his driveway.
After Sambrano was pinned to the ground, Wisel moved some distance away to determine whether Sambrano had drawn blood with the knife. When Wisel stripped off his protective vest, he found no injury.
After Sambrano was arrested, one of the other officers took photographs of the scene. Several of these photographs showed the steak knife lying in the driveway approximately six feet from where Sambrano was pinned to the ground by the officers.
Later, at Sambrano's trial, the location of this knife became a point of controversy. As we have explained, Sambrano testified at trial that he swung the knife at Officer Wisel, not to kill him, but rather to induce one of the other officers to shoot and kill Sambrano. Sambrano further claimed that, after he swung the knife at Wisel, he dropped the knife at his feet just before the officers wrestled him to the ground and handcuffed him. This testimony was potentially inconsistent with the crime scene photographs—photographs which showed the knife lying in the driveway about six feet from where Sambrano was taken to the ground.
During final argument, Sambrano's defense attorney adopted his client's version of events, arguing that Sambrano had not attempted to kill Officer Wisel, but had instead attempted to commit suicide by inducing the officers to shoot him. But the defense attorney did not explain why, if Sambrano had dropped the knife at his feet as he testified, the crime scene photographs showed the knife lying several feet away from where Sambrano was taken to the ground by the officers. During the prosecutor's rebuttal argument, the prosecutor emphasized this apparent inconsistency.
After the jury found Sambrano guilty and the trial was over, the defense attorney visited Sambrano's house. Sambrano's sister, Rachel Sambrano, was at the house, and the two of them discussed Sambrano's case. During this conversation, Rachel told the defense attorney that, when she heard her brother struggling with the police outside the house, she looked through a window that overlooked the driveway. Rachel told the attorney that she observed a police officer (later identified as Officer Cory Crane) helping another officer (Officer Wisel) take off his protective vest. Rachel then saw Officer Crane walk back toward the house, bend down, and pick up a knife that was lying on the driveway. At that moment, Rachel was called away from the window to speak with a different officer, so she did not see what Officer Crane did with the knife after he picked it up.
Rachel also told the defense attorney that, shortly before Sambrano's trial began, the prosecuting attorney asked her to come to his office for a pretrial preparation interview. Rachel claimed that, during this meeting, she told the prosecutor about seeing the officer pick up the knife from the driveway. According to Rachel, the prosecutor seemed uninterested in her observation. (The prosecutor denied that Rachel had discussed this matter with him.)
Based on Rachel's information, the defense attorney moved for a new trial and requested an evidentiary hearing. In his motion, the defense attorney argued that if one of the officers picked up the steak knife and examined it before its position had been documented in a crime scene photograph, then it was conceivable that the officer might have moved the knife from its original position before it was photographed. According to the defense attorney, this meant that Rachel's statement constituted exculpatory evidence under Brady.
In his motion, the defense attorney acknowledged that, before Sambrano's trial, the attorney's investigator had conducted a recorded interview with Rachel and that, during this interview, Rachel told the defense investigator the same thing she later told the defense attorney — i.e., that she had seen one of the officers pick up the knife that was lying on the driveway.
The defense attorney further conceded that, just after the jury was selected, the defense investigator specifically told the defense attorney that he should "listen to the audio" of Rachel's interview "because [Rachel] has a lot to say about the officers after the struggle." But the defense attorney apparently paid little attention to his investigator's warning. In his affidavit, the attorney conceded that he listened to the audio recording of his investigator's interview with Rachel, but stated that he either ignored or failed to understand the potential importance of Rachel's statement about seeing an officer pick up the knife.
When Rachel testified at Sambrano's trial, the defense attorney did not question her about seeing one of the officers pick up the knife, or about the possibility that the knife might have ended up in a different location after it was picked up. Nor did the defense attorney question any of the police officers about this possibility.
The fact that Rachel's statement was already in the defense team's possession before the trial began, and the fact that the defense attorney could have personally known about this information if he had exercised diligence, would normally defeat any motion for a new trial based on Rachel's statement — because the statement would not qualify as "newly discovered" evidence.
See Salinas v. State, 373 P.2d 512, 514-15 (Alaska 1962); Angasan v. State, 314 P.3d 1219, 1221 (Alaska App. 2013).
To avoid this result, the defense argued that even though the defense team knew about Rachel's statement before Sambrano's trial, the prosecutor had an independent duty under Brady to disclose the identical statements that Rachel purportedly made during her trial preparation interview at the prosecutor's office. The defense attorney contended that, because the prosecutor failed to tell Sambrano's attorney about Rachel's statements — statements that the defense investigator had already warned the defense attorney about — Sambrano was entitled to a new trial.
The superior court ruled that, because the defense investigator had already obtained this same information before trial, no Brady violation occurred. The judge therefore denied the defense motion for a new trial.
This appeal followed.
Why we affirm the superior court's denial of Sambrano's motion for a new trial
As we have explained, when Sambrano's attorney asked the superior court to grant Sambrano a new trial, the defense attorney's request was based on the fact that the prosecutor failed to send the defense attorney any discovery regarding Rachel's statement that she saw the officer pick up the knife. The defense attorney argued that, because the prosecutor failed to provide the defense with any discovery regarding Rachel's statement, the prosecutor violated Brady, even though the defense investigator had already obtained this same information directly from Rachel.
Because it was undisputed that the prosecutor had failed to provide any discovery to the defense attorney regarding Rachel's statement, the superior court viewed the defense attorney's Brady claim as an issue of law, and the court decided this claim without holding an evidentiary hearing.
Now, on appeal, Sambrano argues that the superior court committed procedural error by failing to hold an evidentiary hearing on his motion for a new trial. But to support this claim of procedural error, Sambrano shifts the focus of his argument.
Rather than asserting that the prosecutor's non-disclosure of Rachel's statement is the reason why the superior court should have granted a new trial, Sambrano now contends that he requested a new trial because of the possibility of evidence tampering.
Specifically, Sambrano now argues that, given Rachel's statement about seeing the officer pick up the knife from the driveway, there is at least a possibility that the officer moved the knife from one location on the driveway to another before he set it down again. Sambrano further argues that if, indeed, the officer put the knife down in a different spot, then the movement of the knife might possibly have constituted the crime of evidence tampering — if the officer acted with the intent of altering a material aspect of the crime scene.
Based on this chain of speculation, Sambrano argues that he was entitled to a new trial because of the possibility of evidence tampering — and that the superior court committed procedural error by ruling on his motion for a new trial without holding an evidentiary hearing to resolve the question of whether evidence tampering actually occurred.
We reject this claim for two reasons. First, Sambrano's argument on appeal is materially different from the argument that he presented to the superior court. It is therefore not preserved.
See Pierce v. State, 261 P.3d 428, 430-31 (Alaska App. 2011).
Our second reason for rejecting Sambrano's claim of procedural error is based on Alaska law regarding when a party is entitled to an evidentiary hearing on a pending motion. The party seeking the hearing "bears the initial burden of alleging specific facts, supported by affidavits or other documents, that would entitle the party to relief."
Liddicoat v. State, 268 P.3d 355, 358 (Alaska App. 2011) (quoting Marshall v. State, 198 P.3d 567, 572 (Alaska App. 2008)) (internal quotations omitted). --------
In the superior court, Sambrano's defense attorney argued that he was entitled to a new trial because the prosecutor failed to provide the defense attorney with discovery regarding Rachel's statement that one of the officers at the scene had picked up Sambrano's knife before its location was photographed. The defense attorney argued that this fact alone (i.e., the lack of discovery) was sufficient to warrant a new trial.
In his written order denying Sambrano's new trial motion, the judge assumed that Rachel Sambrano's assertion was correct — i.e., that Rachel had, in fact, told the prosecutor during her trial preparation interview that one of the officers had picked up the steak knife from the driveway. And it was undisputed that the prosecutor failed to provide the defense attorney with discovery regarding Rachel's statement. The judge denied the motion for a new trial, not because the defense attorney failed to establish these factual assertions, but rather because Rachel's information was already known to the defense investigator, before Sambrano's trial began.
But now, on appeal, Sambrano argues that he alleged more than simply that the officer picked up the knife. Sambrano now asserts that he asked for a new trial, not because the officer picked up the knife, but rather because of evidence that the officer intentionally moved the knife to a different location that favored the government's version of events. In other words, Sambrano now contends that he asked the superior court to resolve a claim of evidence tampering — and that the superior court could not properly resolve this claim without holding an evidentiary hearing.
But Rachel's affidavit did not assert that she saw the officer move the knife — only that she saw the officer pick it up, and then she looked away. If the officer retrieved the knife from the driveway, inspected it, and then put it back where he found it, then there was no alteration of the crime scene. And even if the officer put the knife down an inch or two from where he found it, this would not constitute a material alteration of the crime scene because the issue was whether Sambrano was telling the truth when he said that he dropped the knife where he was standing, or whether (as shown in the crime scene photographs) the knife ended up several feet away from where the officers wrestled Sambrano to the ground.
Moreover, even if the knife was moved, there was no reason for officers to believe that the physical location of the knife would be a significant aspect of the case. Sambrano did not offer his "suicide by cop" version of events until he testified at trial — and it was only then that Sambrano claimed to have dropped the knife at his feet before the officers grabbed him and subdued him.
In short, Rachel's affidavit and the other information available to the superior court failed to offer a prima facie reason to believe that any evidence tampering occurred. Thus, there was no need for the superior court to hold an evidentiary hearing on that question.
Conclusion
We AFFIRM the judgment of the superior court.