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Bragg v. State

Court of Appeals of Alaska

October 19, 2018

DAVID WILLIAM BRAGG, Appellant,
v.
STATE OF ALASKA, Appellee.

          Appeal 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.

          Donald 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, Judges.

          OPINION

          ALLARD JUDGE

         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 biological daughter, who had recently come to live with him.[1] 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.[2] 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 ethical duty to "seek justice, not simply indictment or conviction."[4] But it is also grounded in the important protective role that the grand jury is intended to serve within Alaska's criminal justice system.[5] 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 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 prosecuting attorney to subpoena witnesses."[7] 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.[8]

         Although Frink imposes an affirmative duty on the prosecutor, the duty remains narrowly defined.[9] The Alaska Supreme Court did not intend to "turn the prosecutor into a defense attorney."[10] The exculpatory nature of the evidence must therefore be self-evident.[11] 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 ...


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