from the Superior Court, Third Judicial District, Anchorage
Trial Court No. 3AN-12-2262 CR, 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.
Soderstrom, Assistant Attorney General, Office of Criminal
Appeals, Anchorage, and Jahna Lindemuth, Attorney General,
Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, and Allard and Wollenberg,
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 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
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.
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.
we reject both claims of error and we affirm Bragg's
claim that the prosecutor violated her duty under Frink v.
Alaska law, a prosecutor has an affirmative duty to provide
exculpatory evidence to the grand jury. This duty is
consistent with the prosecutor's 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 Alaska's criminal justice system. As the Alaska
Supreme Court has repeatedly emphasized, "protection of
the innocent against oppression and unjust prosecution"
ranks among the grand jury's most vital
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 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 created the affirmative duty in
Frink imposes an affirmative duty on the prosecutor,
the duty remains narrowly defined. The Alaska Supreme Court did
not intend to "turn the prosecutor into a defense
attorney." The exculpatory nature of the evidence
must 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."
these principles in mind, we turn to Bragg's claim that
the prosecutor violated her duty under Frink in this
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 ...