Opinion
A-13052
09-29-2021
LARON CARLTON GRAHAM, Appellant, v. STATE OF ALASKA, Appellee.
Jane B. Martinez, Law Office of Jane B. Martinez, LLC, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Patricia L. Haines, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Trial Court No. 1JU-16-00276 CR First Judicial District, Juneau, Philip M. Pallenberg, Judge.
Jane B. Martinez, Law Office of Jane B. Martinez, LLC, Anchorage, under contract with the Office of Public Advocacy, for the Appellant.
Patricia L. Haines, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Kevin G. Clarkson, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Wollenberg and Harbison, Judges.
MEMORANDUM OPINION
HARBISON, JUDGE
Following a trial in which he represented himself, Laron Carlton Graham was convicted of first-degree vehicle theft, second-degree robbery, third-degree assault, first-degree criminal trespass, first-degree witness tampering, seven counts of first-degree unlawful contact, and violating a protective order for conduct involving Lorissa Evenson, a woman he had been seeing romantically. After he was convicted, Graham filed a motion for a new trial, contending that the State's late production of discovery - specifically, its mid-trial production of FBI surveillance logs - required the court to vacate his convictions. The superior court denied Graham's motion, and this appeal followed.
AS 11.46.360(a)(1), AS 11.41.510(a)(1), AS 11.41.220(a)(2), AS 11.46.320(a)(1), AS 11.56.540(a)(1), AS 11.56.750(a)(1)(A), and AS 11.56.740(a)(1), respectively. Graham was acquitted of fourth-degree assault. AS 11.41.230(a)(1).
For the reasons explained in this opinion, we conclude that the superior court did not abuse its discretion in denying Graham's motion for a new trial. We therefore affirm his convictions.
Background facts and proceedings
In December 2015, prior to the incidents underlying Graham's convictions in this case, the Juneau Police Department and the FBI identified Graham as the main suspect in a double-homicide case. Around that same time, Graham was arrested for an unrelated misdemeanor charge. While Graham was incarcerated in connection with that offense, Evenson agreed to cooperate with the homicide investigation by recording her telephone conversations with Graham and by wearing a wire when she visited Graham at the correctional facility.
A few days prior to his release from custody, Graham was served with a letter from the manager of Evenson's apartment complex informing him that he was forbidden from entering the complex. And when Graham was released from incarceration on March 14, 2016, the Juneau Police Department and the FBI placed him under twenty-four-hour surveillance.
On the morning of March 17, 2016, Evenson returned home after a night away and found Graham in her apartment. According to Evenson's testimony at trial, Graham appeared to be angry. When Evenson attempted to leave the apartment, Graham pushed her onto the couch, searched her pockets, and removed the key to a car she had borrowed from a friend. He then pulled her purse off of her arm and took some money and her phone from inside the purse. Evenson again attempted to leave, but Graham slammed the front door and hit her in the face with his palm. He also grabbed Evenson by the hair and threatened to throw her out the window of the second-floor apartment.
Evenson eventually was able to leave the apartment, and she went straight to the apartment manager's office for help. Evenson and the two apartment managers called 911, and during the call, Evenson saw Graham through an office window driving away in her borrowed car. The police later located Graham and charged him with vehicle theft, robbery, two counts of assault, and criminal trespass.
Evenson subsequently obtained a protective order against Graham, but he nevertheless contacted her by telephone several times while he was awaiting trial. He also wrote her a letter asking her to testify falsely about the incident. As a result of this conduct, Graham was charged with witness tampering, unlawful contact, and violating a protective order.
After being advised of the benefits of counsel and the risks of proceeding pro se, Graham chose to waive his right to counsel and represent himself at trial. Because Graham was incarcerated, the superior court appointed a private investigator to give him "logistical support" during the trial. The court told Graham that the private investigator could help him contact and subpoena witnesses. Graham refused to accept this assistance and told the court, "I want to do everything myself. I don't need [the investigator] either."
The case proceeded to trial. Graham argued to the jury that his prosecution was the result of government "corruption, collusion, [and] conspiracy." In support of his defense, Graham presented evidence that he was under twenty-four-hour surveillance and that the FBI participated in this surveillance.
On the fourth day of trial, the State provided late discovery to Graham - specifically, copies of the surveillance logs that the FBI created during its homicide investigation of Graham. Graham did not request a continuance in response to this late-provided discovery. (Earlier in the trial, the court had told Graham that, under Alaska law, "when there's a discovery violation, ordinarily the remedy for it is a continuance." The court also informed Graham that it would not rule on issues not raised by the parties.) During the discussion about the late discovery, the court again stated that it would not order a continuance unless it was requested to do so by one of the parties, and it reminded Graham that it could not act as his attorney.
After the State gave Graham copies of the surveillance logs, the superior court provided Graham with additional subpoenas so that he could call the officers and agents involved in the surveillance as witnesses. At Graham's request, the superior court then instructed a judicial services officer to fax Graham's completed subpoenas to the Anchorage FBI office.
Approximately two and a half hours later, the State objected to Graham's witness list as cumulative, and the superior court invited Graham to respond to this objection. Instead, Graham chose to rest his case. Graham told the court that he felt that what "need[ed] to be done [had] been established all week long" and that it was not necessary to hear from any additional witnesses. Graham then stated that he wanted to proceed with closing arguments.
In closing, Graham argued that the charges were part of a government-sponsored conspiracy against him and that the police had coerced Evenson into fabricating the incident at her apartment. The jury ultimately found Graham not guilty of fourth-degree assault, but convicted him of all the other charges.
Prior to sentencing, Graham filed a motion for a new trial arguing that he was entitled to a new trial because the State did not give him the FBI surveillance logs by the discovery deadline. The superior court denied this motion in a written order. The court found that the late discovery of the surveillance logs was not a product of the State's bad faith, but rather was the result of "confusion about whether [the surveillance logs] should most appropriately be viewed as relating to the murder investigation, as opposed to this case." The superior court also found that, after Graham received the logs, he made a "tactical decision" to submit the case to the jury without calling any additional witnesses or requesting a continuance. Consequently, the court concluded that Graham was not entitled to "request a 'do-over'" in the form of a new trial.
This appeal followed.
Graham's claims on appeal
On appeal, Graham argues that the superior court erred when it denied his motion for a new trial. According to Graham, the prejudice caused by the State's discovery violation could not be cured by a continuance, and a new trial was required. Graham also argues that the superior court failed to advise him of his right to request a continuance and failed to assist him to subpoena witnesses.
In Bostic v. State, the Alaska Supreme Court held that mid-trial discovery violations are presumptively prejudicial. When a discovery violation occurs, the defendant is required to identify how the late discovery has prejudiced his defense. But then it is the State's burden to prove that the defendant has not been prejudiced in the manner claimed. Although a continuance is "ordinarily the appropriate remedy for a discovery violation," a mistrial may be warranted when a mid-trial discovery violation undermines the defense theory of the case.
Bostic v. State, 805 P.2d 344, 347-48 (Alaska 1991) (holding that a mid-trial discovery violation is presumptively prejudicial to the defendant even if the violation is due to negligence).
Collins v. State, 977 P.2d 741, 745 (Alaska App. 1999).
Bostic, 805 P.2d at 349.
Id. at 347-48.
Here, Graham argues that the State's failure to provide timely discovery of the additional FBI logs unfairly limited his ability to present his defense at trial. But Graham does not actually identify how his defense was prejudiced, and it is not immediately apparent why a continuance - had one been requested - would not have been an adequate remedy for any prejudice. Indeed, this additional evidence arguably supported, rather than undermined, Graham's claim that he was the target of a government conspiracy. And the record is clear that Graham affirmatively decided not to introduce any evidence related to the late-discovered surveillance logs, choosing instead to rest on the evidence that had already been presented.
See Smithart v. State, 988 P.2d 583, 586 (Alaska 1999) (explaining that a defendant's right to present a defense is a fundamental element of due process).
Moreover, the record does not support Graham's claim that the superior court failed to assist him with obtaining the necessary subpoenas. To the contrary, the record shows that the superior court made great effort to ensure that Graham had access to the subpoenas that he wanted.
Graham also argues that the superior court failed to advise him that he had the right to request a continuance. But the record shows that earlier in the trial, the superior court directly advised Graham that continuances were ordinarily the remedy for late discovery. The court also reminded Graham that it could not act as his lawyer, and it could not grant a continuance unless one was requested. Graham never requested a continuance or suggested that he needed more time to obtain additional witnesses. Instead, he chose to forgo calling any additional witnesses in favor of proceeding directly to closing arguments.
Whether to grant a motion for a new trial is a question left to the "sound discretion of the trial court." We will reverse a trial court's denial of a motion for new trial only if we find an abuse of that discretion. Here, Graham has failed to articulate any specific way in which his defense was prejudiced by the State's failure to make timely disclosure. As we have described, after he received the surveillance logs, Graham chose to submit the case to the jury rather than call additional witnesses. While Graham may regret his tactical choice, it does not constitute grounds for a new trial.
Phornsavanh v. State, 481 P.3d 1145, 1157 (Alaska App. 2021); see also Williams v. State, 600 P.2d 741, 742 (Alaska 1979) (noting that the appropriate remedy for a discovery violation is within the trial court's discretion).
Phornsavanh, 481 P.3d at 1157-58.
See Faretta v. California, 422 U.S. 806, 834 n.46 (1975).
Accordingly, given the record in this case, we find no abuse of discretion in the superior court's denial of Graham's motion for a new trial.
Conclusion
The judgment of the superior court is AFFIRMED.