Opinion
Court of Appeals No. A-10144.
June 1, 2011.
Appeal from the Superior Court, Third Judicial District, Anchorage, Larry D. Card, Judge, Trial Court No. 3AN-06-10238 Cr.
Caitlin Shortell, Anchorage, for the Appellant. Eric A. Ringsmuth, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION
This case presents an unusual situation: the defendant claims that he should be granted a new trial because the State failed to disclose information that the defendant already knew about. As we explain in more detail in this opinion, we conclude that no new trial is needed, and we affirm the judgement of the superior court. The facts underlying the criminal charges against Davis
In August 2005, a disabled woman, N.N., was staying at the Brother Francis Shelter in Anchorage. Due to a spinal cord injury that N.N. suffered in a car accident, she had difficulty walking, she was unable to drive, and her mobility was generally limited: it would take her approximately 90 seconds just to get out of a vehicle.
On the morning of August 27th, N.N. was waiting on the street for someone to pick her up and drive her to her boyfriend's residence. Her ride never showed up, but around 12:30 p.m., Benjamin Davis (who was a stranger to N.N.) pulled up and offered her a ride. N.N. accepted a ride from Davis, and he drove her to her boyfriend's residence, but no one was there when they arrived.
Davis then invited N.N. to come with him to the Park-N-Sell (because Davis was apparently looking to purchase a car). Davis told N.N. that he would drive her back to her boyfriend's residence after they looked at cars.
After spending thirty to forty-five minutes at the Park-N-Sell, Davis and N.N. went to a gas station and purchased sodas. N.N. asked Davis to drive her back to her boyfriend's residence, but Davis told her that "he wouldn't" because "nobody was there." Instead, Davis drove N.N. to two or three locations near Eklutna and T hunderbird Falls. A t each of these locations, Davis sexually assaulted N .N . . N.N. told Davis, "No — don't do this to me," but Davis told N.N. that if she did not comply, she would never see her daughter again.
N.N.'s testimony throughout the trial was frequently conflicting and difficult to follow. It often seemed like she did not understand the questions she was being asked because she would answer a question one way, and then give a completely different response when the question was rephrased. In her conversations with police and prosecutors prior to trial, she identified two locations near Eklutna and Thunderbird Falls where Davis had taken her; at trial she insisted there were three locations: Eklutna, Thunderbird Falls, and "Chugach State Park".
At one of these locations, Davis tried to pull N.N. out of the car by her arm, but N.N. resisted. She refused to leave the car because she feared that Davis would "do something to [her] out in the trees, [and then] leave [her] out there."
After the sexual assaults near Eklutna and Thunderbird Falls, Davis took N.N. back to Anchorage. Davis drove to a pizza restaurant in Government Hill called Ski Benny's. Davis told that cashier that N.N. was his wife, and that they had lost their luggage and their money. Out of sympathy, the cashier gave them pizza for free. Davis then drove N.N. to Ship Creek. They stopped there to eat the pizza, and Davis again sexually assaulted N.N. . Davis forced N.N. to put a Tropicana juice bottle in her vagina while he masturbated. Davis also forced N.N. to touch her own breasts, and Davis ejaculated on N.N.'s pants. N.N. was crying uncontrollably, and Davis threatened to lock her in a large metal storage container if she did not stop crying.
At one point, N.N. tried to escape, but Davis grabbed her arm and told her, "If you ever try to run away, I'm going to put you in that container [and] you won't see your daughter ever again." Then Davis got out of the car, went around to the passenger's side, and slammed N.N.'s door shut. He also warned her not to try to escape again "or else I'll kill you".
Davis kept N.N. in the car with him at Ship Creek all night. Finally, around 8:00 or 8:30 the next morning, Davis took N.N. back to the Brother Francis shelter. Davis told N.N. not to tell anyone what happened, or he would come find her.
Despite Davis's threats, N.N. told someone who was staying at the shelter what Davis had done to her, and that person convinced N.N. to contact the police. Anchorage Police Officer Robert Wurst responded to the call. Officer Wurst drove N.N. to Ship Creek. There, with N.N.'s assistance, Wurst collected evidence: soda bottles, the Tropicana bottle, and used paper napkins. N.N. also gave Wurst a copy of Davis's resume, which she had taken from Davis's car. Wurst then took N.N. to the hospital.
At the hospital, N.N. underwent a sexual assault examination. She had bruises on her arms from Davis's attempt to pull her out of the car, and from Davis grabbing her arm to prevent her escape at Ship Creek. The state crime lab found N.N.'s DNA on the Tropicana bottle cap, and the lab found DNA from some other person on N.N.'s nipples, as well as sperm on N.N.'s panties. The DNA recovered from N.N.'s nipples and the sperm recovered from her panties were later matched to Davis.
Later, when Anchorage Police Detective John Vandervalk interviewed Davis, Davis denied everything: he declared that he had not picked up anyone in his car, and he denied even seeing anyone on crutches.
Based on these events, Davis was indicted for first-degree sexual assault, kidnapping, and four counts of second-degree sexual assault. A jury found him guilty of all six counts, and he received a composite sentence of 75 years to serve.
The facts underlying Davis's discovery violation claim
Until just before Davis's trial, the prosecutor and police did not know that Davis had taken N.N. to a pizza parlor between the sexual assaults that occurred in the Eklutna / Thunderbird Falls area and the sexual assaults that occurred at Ship Creek. N.N. had not mentioned the stop at the pizza parlor when she described what happened to her. As we mentioned in the preceding section of this opinion, when Officer Wurst went to Ship Creek with N.N. to collect evidence of the sexual assaults, he found used paper napkins. Wurst asked N.N. about the napkins, and N.N. replied that they were the napkins that Davis used while eating pizza. But neither Wurst nor any other police investigator thought to ask N.N. where the pizza came from.
Shortly before trial, in order to refresh N.N.'s memory (in preparation for her testimony), Detective Vandervalk and the prosecutor took N.N. to the places she had gone with Davis. For the first time, N.N. mentioned that Davis had driven her to Ski Benny's pizza parlor in Government Hill. N.N. described how she had gone into the pizza parlor with Davis, and she conceded that she had not tried to escape or call for help.
The prosecutor did not notify Davis's defense attorney of N.N.'s description of the visit to the pizza parlor because the prosecutor believed that the defense attorney was already aware of this information. When Detective Vandervalk went into the pizza parlor (after N.N. stated that she and Davis had gone there), Vandervalk saw a defense investigator's business card, as well as photographs of Davis and N.N. . Detective Vandervalk talked to one of the owners of the pizza parlor, and the owner told Vandervalk that he had already been interviewed by a defense investigator. The owner informed Vandervalk that no one at the pizza parlor had any recollection of the incident — and that the defense investigator had been told the same thing.
The opening statements at Davis's trial confirmed the prosecutor's surmise that the defense attorney was already aware of the visit to the pizza parlor.
The defense attorney did not object when the prosecutor mentioned the visit to the pizza parlor in the State's opening statement:
Prosecutor: [W]hen [Davis and N.N.] got [back to] Anchorage . . ., they stopped off . . . [at a] pizza parlor in Government Hill, [where] Davis didn't leave her alone in the car. . . . He told [N.N.] that she had to come in with him, and [that] if she said anything, he would kill her and he would kill her daughter. She went in with him, and he told her to pretend like she was his wife. . . .
More importantly, the defense attorney himself relied on the visit to the pizza parlor in his opening statement. As can be seen, the defense attorney explicitly stated that he had known about this incident before the prosecutor found out:
Defense Attorney: [N.N.] actually went into a pizza parlor and had a conversation. . . . Now, this is the first time we've heard that she has told the State [about the pizza parlor], but we've always known it — because she told us that. And when she told us [about the visit to the pizza parlor], . . . she [didn't mention] that, before they went into the pizza parlor in Government Hill, they went to a Tesoro gas station, where she went in and used the rest room. . . . So [N.N. got] in and out, in between the two [alleged] incidents [of sexual assault], in a public place, with people present.
. . .
And [she and Davis] got a pizza, and they went down to Ship Creek to eat the pizza. Now this is the pizza parlor, Ski Benny's. And as [N.N. and Davis] went into the pizza parlor, they talked to the man at the counter, with a telephone on the counter. Now that wasn't said in [N.N.'s] first statement.
Later in the trial, during the prosecutor's direct examination of N.N., the prosecutor asked N.N. about the visit to the pizza parlor. N.N.'s responses were confusing: first she seemed to say that she had been in the pizza parlor for ten or fifteen minutes, but then she seemed to say that she had stayed in the car for ten or fifteen minutes:
Prosecutor: So, when you were at the pizza place, did you stay in the car or did you — or not?
N.N.: Yeah, I stayed in there for like 10, 15 minutes, because he told the cashier — he told the cashier that I was his wife.
Prosecutor: How do you know he told the cashier that?
N.N.: Because he told me.
Prosecutor: Okay. Did you go in with him at all to the pizza — or did you stay — you said you stayed in the car?
N.N.: Yeah, I stayed in the car for like 10, 15 minutes.
On cross-examination, the defense attorney got N.N. to admit that she had gone into the pizza parlor with Davis, and that she had not tried to ask for help. The defense attorney's questions also reveal that the defense attorney was familiar with the layout of the restaurant:
Defense Attorney: [Y]ou went into the pizza parlor with him?
N.N.: Yeah, and he told me not to say anything to the cashier.
. . .
Defense Attorney: And [the telephones are] right there on the counter, right?
N.N.: He told me not to make any phone calls.
Defense Attorney: Okay. [But] you were there, [and] the clerk was there, right?
N.N.: Yes.
Defense Attorney: Okay. Did you ask the clerk for help?
N.N.: No.
On redirect, the prosecutor tried to clarify N.N.'s testimony on this issue, and the prosecutor also mentioned the witness-preparation trip that N.N. took with Detective Vandervalk.
After the prosecutor's redirect examination of N.N. was concluded, Davis's defense attorney complained that the defense had not been notified of Detective Vandervalk's witness-preparation trip with N.N. .
The defense attorney acknowledged that he already knew about the underlying event — i.e., the fact that N.N. and Davis visited the pizza parlor. But the defense attorney stated that he had not previously been aware that "[N.N.] took Vandervalk [to the pizza parlor] two years after the fact."
The defense attorney claimed that the prosecutor's failure to disclose this latter information had prejudiced the defense case. Specifically, the defense attorney claimed that he had been limited in what he could say about this incident in his opening statement — because, even though he knew that Davis and N.N. had gone to the pizza parlor, he did not know that N.N. had told the authorities about visiting the pizza parlor with Davis.
The defense attorney argued that, had he known that N.N. had told the authorities about the visit to the pizza parlor, he would have given a different opening statement — an opening statement in which "[he] would have been able to say all of these things". By "all of these things", the defense attorney was apparently referring to the fact that, just before trial, N.N. gave a statement to the police that differed materially from her earlier statements to the police and medical personnel — in that N.N.'s earlier statements did not contain any explicit mention of the visit to the pizza parlor.
The defense attorney's characterization of the purported prejudice to his case — i.e., the alleged undermining of his opening statement — w as not accurate. First, as we have already explained, the prosecutor spoke about the visit to the pizza parlor in the State's opening statement — an opening statement that preceded the defense opening statement. Second, in the defense opening statement, the defense attorney expressly mentioned — and relied on — the fact that, even though N.N. had recently admitted going into the pizza parlor with Davis, she had not mentioned the visit to the pizza parlor in her earlier police statement.
We quoted the pertinent portion of the defense opening statement earlier in this opinion. In that opening statement, the defense attorney stated: "Now, this is the first time we've heard that she has told the State [about the pizza parlor], but we've always known it — because she told us[.]"
In other words, the defense attorney acknowledged that he was already aware (before Davis's trial began) of the incident at the pizza parlor. Apparently, N.N. had spoken to someone on the defense team, and she had admitted visiting the pizza parlor with Davis. The only new aspect of the situation was that the defense attorney had not previously been aware that N.N. had told the State about the visit to the pizza parlor.
In any event, the defense attorney asked the trial judge to grant one of two remedies. The defense attorney first suggested that the judge instruct the jury that "the State had a duty to provide this information about Vandervalk's drive [with N.N.], and . . . they failed to give that information [to the defense], and [they] failed to follow court rules, and that goes to the strength of their case, and [it] may be considered by the jury." As a second option, the defense attorney suggested that the judge should dismiss the charges against Davis because of the State's failure to disclose "[this] extremely exculpatory information".
The trial judge, Superior Court Judge Larry D. Card, instructed Detective Vandervalk to provide the defense attorney with a written summary of what happened during his witness-preparation trip with N.N., and of what N.N. said during that trip. He deferred ruling on what other remedies might be appropriate.
The defense attorney later asked Judge Card to give the following jury instruction:
During the redirect examination of the complaining witness[,] the state referred to a drive with Detective Vandervalk, [the prosecutor], and the complaining witness (on July 2, 2007), in which the complaining witness for the first time identified a location of "Benny Ski's Pizza" in Government Hill, . . . not identified in any previous statement produced before trial.
The state [was] under an absolute legal obligation under the Rules of Court and the Law to provide the defendant with all this information prior to trial. The state did not. The fact that such information was not revealed, until after the cross-examination of the complaining witness, when there was a legal obligation to do so before the trial, may be taken by you as affirmative evidence of the weakness of the State's case.
Judge Card stated that he was willing to give a jury instruction along these lines, but he disagreed with the last sentence of the instruction because he believed it was inappropriate for him to tell the jury what weight to attach to the State's failure to reveal this information. Judge Card therefore modified the last sentence of the jury instruction to read: "The fact that such information was not revealed, until after cross examination of the complaining witness, when there was a legal obligation to do so before the trial, may be considered by you and given any weight you deem necessary in weighing the evidence in this case."
The defense attorney asserted that if this change was made to his proposed jury instruction, the instruction would no longer be an adequate remedy for the State's late disclosure of the information. The defense attorney stated that if Judge Card was not willing to give the jury instruction in the form the defense attorney originally proposed, then the only adequate remedy was dismissal of the case.
Judge Card denied the defense attorney's request for dismissal of the charges. The judge offered to grant a continuance of the trial, but the defense attorney declined this offer. At this point, the jury was brought back into the courtroom, and Judge Card read the modified jury instruction about the State's failure to disclose the witness-preparation trip.
Later in the trial, when Detective Vandervalk took the stand, he was asked why he did not submit a written police report detailing his witness-preparation trip with N.N., and what N.N. said to him about the visit to the pizza parlor during that trip. Vandervalk responded that he did not prepare a police report because "[he] was told that nobody [at the pizza parlor] had any recollection of the event, and the same information had already been given [by the pizza parlor employees] to the defense investigator."
When the defense attorney finished his questioning of Detective Vandervalk, the defense attorney asked Judge Card to again read the jury instruction about the State's failure to disclose the witness-preparation trip. Judge Card again read the instruction to the jurors.
During closing arguments, the defense attorney brought up the issue of the witness-preparation trip. He argued that the fact that N.N. did not mention the pizza parlor until so close to trial, and the fact that her testimony about the pizza parlor on cross-examination seemed to contradict her testimony on direct examination, all suggested that N.N. had fabricated her allegations of sexual assault. The defense attorney also suggested that the prosecutor made a calculated decision not to reveal the information about the pizza parlor to the defense because of the weakness of the State's case.
Davis's claims on appeal
On appeal, Davis makes several arguments relating to the State's failure to disclose N.N.'s witness-preparation trip with the prosecutor and Detective Vandervalk. None of these arguments were preserved in the trial court.
On page 7 of his opening brief, Davis argues that the State violated his rights by failing to record, or at least prepare a written summary of, all the statements N.N. made to the prosecutor and the detective during the witness-preparation trip. Davis argues that the State's failure to make a record of N.N.'s statements during the trip "severely hindered [the defense] in its ability to impeach N.N. with any prior inconsistent statements [she] may have [made]."
In addition, Davis argues that this witness-preparation interview contained information material to the question of Davis's guilt or innocence, because the interview "unquestionably included information [about] what sexual acts occurred, where these events took place, and [N.N.'s] account of the overall route she took with . . . Davis."
On page 14 of his opening brief, Davis argues that the State violated his rights by failing to inform the defense that N.N. had gone into the pizza parlor with Davis and that she had not attempted to escape or to seek assistance. According to Davis, this information "only surfaced . . . after [N.N.] had been cross-examined."
None of these arguments were presented to the superior court.
The defense attorney did not argue that the defense case was prejudiced by the State's failure to disclose the entire contents of N.N.'s witness-preparation interview, nor did the defense attorney claim that N.N. revealed new, exculpatory information during the witness-preparation interview that had to be disclosed under Brady v. Maryland.
373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (holding that the due process clause is violated when the government suppresses material evidence favorable to a criminal defendant). See also Alaska Criminal Rule 16(b)(3), which requires the government to disclose "any material or information within the prosecuting attorney's possession or control which tends to negate the guilt of the accused [with respect] to the [charged] offense or would tend to reduce the accused's punishment therefor."
Nor did the defense attorney argue that the defense case was prejudiced by the State's failure to disclose the fact that N.N. and Davis had visited the pizza parlor. Davis's attorney acknowledged that he and his client were already well aware of that event — as evidenced by the defense attorney's opening statement.
Rather, the defense attorney's only objection was that the State failed to disclose, prior to trial, the fact that N.N. had informed the authorities about the visit to the pizza parlor (during the witness-preparation interview with Detective Vandervalk).
When this issue was litigated in the trial court, the defense attorney contended that the State's failure to make earlier disclosure of this fact — i.e., the fact that N.N. had told the authorities about the visit to the pizza parlor — deprived him of the ability to argue that, in her interviews with the police, N.N. never mentioned the fact that she accompanied Davis into a public restaurant and that she gave no indication that she was in trouble. Instead, the defense attorney could only argue that N.N. failed to mention this fact in her initial statement to the authorities.
As we have explained, and as the defense attorney's opening statement reveals, the defense attorney knew about N.N.'s and Davis's visit to the pizza parlor, but the defense attorney thought that the prosecutor was ignorant of this event. One can well imagine the defense attorney looking forward with anticipation to his opening statement, or (as an alternative tactic) looking forward with anticipation to his cross-examination of N.N., when he would drop this bombshell information into the surprised prosecutor's lap. The defense attorney might well have been disappointed to learn, when the prosecutor delivered her opening statement, that the authorities were now also aware of the visit to the pizza parlor.
But at the time of this revelation ( i.e., at the time of the prosecutor's opening statement), the defense attorney had not publicly committed himself to the contention that N.N. had never acknowledged the visit to the pizza parlor. The defense attorney was therefore able to modify his claim when he delivered the defense opening statement.
In that opening statement, the defense attorney told the jury that N.N. had only just recently informed the authorities about the pizza parlor visit, but that the defense was already well aware of the pizza parlor incident — because (according to the defense attorney) N.N. had disclosed this incident to the defense team early in the case. The timing of N.N.'s disclosures allowed the defense attorney to argue that N.N. had been hesitant to reveal the pizza parlor incident to the authorities — and that the reason for her hesitation was that her account of sexual assault was false.
From the defense attorney's point of view, this may not have been as satisfactory as being able to argue that N.N. had never told the authorities about the visit to the pizza parlor. But this difference hardly constituted exculpatory information for Brady purposes, nor did it undermine the defense case to such an extent as to obviously require a mistrial.
As our supreme court has explained, the government's failure to disclose information to the defense will constitute a Brady violation only when, viewing the newly disclosed information in the context of the evidence as a whole, "the omitted [information] creates a reasonable doubt that did not otherwise exist". Nicholson v. State, 570 P.2d 1058, 1062-63 (Alaska 1977).
Here, Davis's attorney already knew that Davis and N.N. had visited the pizza parlor. In fact, a defense investigator had interviewed the pizza parlor staff. What the defense attorney did not know was that, shortly before trial, N.N. told a police detective about the visit to the pizza parlor.
The fact that N.N. described this detail of her interaction with Davis to a police detective during a witness-preparation interview was not the kind of information that would create a reasonable doubt about Davis's guilt. Indeed, the jury heard this information — and they convicted Davis.
We note, moreover, that the defense attorney never asked for a mistrial. Even though the question of the appropriate remedy was discussed several times, the defense attorney never asked Judge Card to declare a mistrial, and he declined Judge Card's offer of a continuance. Instead, the defense attorney asked for a curative instruction. Then, when Judge Card refused to give the precise instruction the defense attorney wanted, the defense attorney asked for outright dismissal of the case against Davis — something that he clearly was not entitled to, given the limited importance of the evidence in question.
Technically, then, the only claim of error that Davis has preserved for appeal is the claim that it was error for Judge Card to give the modified version of the curative instruction, rather than the version of the instruction proposed by Davis's attorney.
As we explained earlier in this opinion, the difference between these two instructions is that the defense attorney's proposed version would have instructed the jurors that the State's failure to make earlier disclosure of N.N.'s statement "[could] be taken by [the jury] as affirmative evidence of the weakness of the State's case", while Judge Card's modified version told the jurors that the State's failure to make earlier disclosure "[could] be considered by [the jury] and given any weight [the jury deemed] necessary in weighing the evidence in this case."
In other words, under the defense attorney's version of the instruction, Judge Card would have told the jurors that the prosecutor's failure to make earlier disclosure of N.N.'s statement suggested "the weakness of the State's case", while under Judge Card's version of the instruction, it was up to the jurors to decide the significance of the prosecutor's failure to make earlier disclosure of N.N.'s statement.
We conclude that Judge Card's approach was the proper one.
The defense attorney's version of the instruction rested on the implicit premise that the prosecutor acted in bad faith — that the prosecutor and the police were attempting to hide this information from the defense. But both the prosecutor and Detective Vandervalk asserted that they had acted in good faith — that they failed to notify Davis's defense attorney of N.N.'s statements concerning the visit to the pizza parlor because they believed that the defense attorney was already aware of this information.
We note, in particular, that the jury heard testimony directly pertaining to this issue: Detective Vandervalk was questioned about this matter when he took the stand at Davis's trial. Vandervalk testified that, when he went into the pizza parlor (after N.N. stated that she and Davis had gone there), he saw a defense investigator's business card, as well as photographs of Davis and N.N. Vandervalk further testified that the owner of the pizza parlor told him that he (the owner) had already been interviewed by a defense investigator.
Given the fact that testimony on this issue was presented to the jury, it was up to the jurors to resolve this issue of fact — i.e., to determine whether the authorities were acting in good or bad faith when they failed to make earlier disclosure of N.N.'s statement. For this reason, Judge Card's version of the instruction was the proper one: he let the jurors determine the significance of the State's failure to earlier disclose this information.
Judge Card's version of the instruction allowed the defense attorney to argue that the jurors should view the late disclosure as a sign of the weakness of the State's case — and the defense attorney did so.
In reaching this conclusion, we do not necessarily endorse the proposition that the State violated its pre-trial disclosure obligations in this case, or that Davis was entitled to a curative instruction at all. This Court held in Sivertsen v. State, 963 P.2d 1069, 1071 (Alaska App. 1998), that Alaska Criminal Rule 16(b)(1)(A) does not require prosecutors to disclose oral statements that a witness makes during a trial preparation interview. Given our conclusion that the disputed information did not constitute Brady material, our holding in Sivertsen appears to govern Davis's case. But we need not resolve this issue — because, in any event, Davis was entitled to no more than the jury instruction that Judge Card gave.
Conclusion
The judgement of the superior court is AFFIRMED.