NALON EVAN v. STATE OF ALASKA (2011)

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 precedent for any proposition of law.

MEMORANDUM OPINION AND JUDGMENT

Nalon Evan was convicted of theft in the second degree.   He argues that the prosecutor improperly withheld exculpatory evidence from the grand jury when she failed to play the recording of his interview with the police.   But, after comparing the interview recording with the other evidence presented to the grand jury, we conclude that the recording was not the kind of evidence that tended, in and of itself, to negate Evan's guilt.   We therefore affirm his conviction.

Background

At the grand jury presentation, Michelle Anderson testified that, while she was at Boston's Pizza, she accidently left her car keys behind when she moved from the bar area into the restaurant area.   Anderson also testified that, when she went into Boston's, she left her checkbook, her Wells Fargo paperwork, and a friend's cell phone in her vehicle.

Anchorage Police Officer Jeffrey Martin testified that he was dispatched to Boston's Pizza to respond to a report that two intoxicated people were trying to drive away from the restaurant.   These two people were later determined to be Evan and his companion, Robert Cameron.   A fellow officer detained Cameron in the parking lot, and Martin contacted Evan, sitting on a utility box, about a block away.   There were several Wells Fargo folders lying at Evan's feet.   When Evan stood up, the officer found that Evan had been sitting on a cell phone and Anderson's checkbook.

Martin testified that Evan initially claimed that he found the checkbook.   Then, after the officer gave him Miranda warnings, Evan admitted that he had been at the restaurant with Cameron, and that an employee had given them the keys to the vehicle.   Martin gave the following testimony that is at issue in this appeal:

Prosecutor:  Okay. Did you ask [Evan] if he had been in the vehicle?

Martin:  Yes.

Prosecutor:  Okay. Did he initially admit that he had been in the vehicle?

Martin:  No, he did not.

Prosecutor:  Did he later admit that he had?

Martin:  Yes.

The grand jury returned a true bill of indictment on the charge of theft in the second degree.

Prior to trial, Evan filed a motion to dismiss the indictment.   Among other grounds, Evan asserted that the prosecutor failed to present exculpatory evidence to the grand jury.   Evan supported his motion with a recording of his interview with Martin.

On the recording, Evan admitted that he was in the restaurant with Cameron and asserted that a restaurant employee gave Cameron a set of car keys.   Shortly thereafter, Martin began to press Evan about what happened in the parking lot:

Martin:  So why did you get in the car, though?   Did the manager tell you to get in the car or did Robert, your buddy, tell you to get in the car?   Who told you to get in the car?

Evan:  Who told me to get in the car?   He did.

Martin:  OK․  Did you think he was good enough to drive?

Evan:  He looked all right.

Martin:  OK. Once you were in the car why did you take the checkbooks?

Evan:  Why would I want to have a checkbook?

Martin:  You took the checkbooks out of the car.

Evan:  I did not have a checkbook.

Martin:  The manager saw you get out of the car with possession of property from in the car.

Evan:  My bag and my papers.

Martin:  What bag? ․

Evan:  I had a bag, and it had my CD player in it and my paperwork because I just got out of jail.

The superior court denied Evan's motion to dismiss, and Evan was convicted of theft in the second degree after a jury trial.

Discussion

On appeal, Evan again argues that the prosecutor failed to present exculpatory evidence to the grand jury.   He argues that the prosecutor should have presented the complete recording of his interview.   He claims that the recording would have shown that he did not actually admit that he had been in Anderson's vehicle.

A prosecutor has an obligation to present exculpatory evidence to the grand jury.¹  But this obligation does not require the prosecutor to develop evidence for the defendant.²  This obligation only requires the prosecutor to present evidence “that tends, in and of itself, to negate the defendant's guilt.” ³

In the present case, Evan acknowledged during his interview that Cameron had the keys to Anderson's car.   Evan's responses suggested that he got into Anderson's car because Cameron told him to.   Evan was not concerned about Cameron's state of intoxication because he looked all right to drive.   When Martin asked Evan to explain why a witness would say that Evan had taken Anderson's property when he got out of the car, Evan replied that he only had his bag and his paperwork.

Much of Evan's interview was consistent with the evidence suggesting that he was guilty.   Even if it was clear that he had never entered Anderson's car, he still could be guilty of theft.⁴  In view of the other evidence presented to the grand jury, the interview recording was not the type of evidence that tended, in and of itself, to negate his guilt.

Conclusion

We AFFIRM the superior court's judgment.

FOOTNOTES

FN1. Frink v. State, 597 P.2d 154, 165 (Alaska 1979)..  FN1. Frink v. State, 597 P.2d 154, 165 (Alaska 1979).

FN2. Id. at 166..  FN2. Id. at 166.

FN3. Rogers v. State, 232 P.3d 1226, 1244 (Alaska App.2010)..  FN3. Rogers v. State, 232 P.3d 1226, 1244 (Alaska App.2010).

FN4. Cf. Cheely v. State, 850 P.2d 653, 662–63 (Alaska App.1993)..  FN4. Cf. Cheely v. State, 850 P.2d 653, 662–63 (Alaska App.1993).

BOLGER, Judge.