Chad Alan Zurlo v. State of Alaska

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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
CHAD ALAN ZURLO,
Court of Appeals No. A-12805
Appellant, Trial Court No. 4FA-14-01372 CR
v.
OPINION
STATE OF ALASKA,
Appellee. No. 2720 — February 18, 2022
Appeal from the Superior Court, Fourth Judicial District,
Fairbanks, Douglas L. Blankenship, Judge.
Appearances: Margi A. Mock, under contract with the Public
Defender Agency, and Quinlan Steiner, Public Defender,
Anchorage, 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, Harbison, Judge, and Hanley,
District Court Judge.*
Judge ALLARD, writing for the Court.
Judge HANLEY, concurring.
*
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska
Constitution and Administrative Rule 24(d).
The question presented by this case is whether the trial court should have
dismissed an indictment after the prosecutor violated his duty to present exculpatory
evidence and deliberately presented a distorted view of the evidence to the grand jury.
For the reasons explained in this opinion, we conclude that the indictment should have
been dismissed. Therefore, in accordance with Alaska law, we reverse the conviction
in this case.
Relevant facts and proceedings
Chad Alan Zurlo and his girlfriend, Serena Vallier, moved to Fairbanks in
April 2014 in response to an employment offer from Steven Corcoran, who had
previously worked with Zurlo in Washington. After Zurlo and Vallier arrived in
Fairbanks, Corcoran discovered that Zurlo no longer had the qualifications for the job
Corcoran offered. This created tension between the two men and was the source of many
arguments.
A few weeks after Zurlo and Vallier arrived, Corcoran rented a house and
offered to sublet the lower level of the house to the couple. The lower level consisted
of an open family room basement that did not have a door. Zurlo and Vallier moved in
on May 1.
Corcoran was a heavy drinker who became loud and aggressive when he
drank. On the night that Zurlo and Vallier moved in, Corcoran came into their living
space uninvited and intoxicated. Zurlo asked Corcoran to announce his presence before
entering their living space, which caused Corcoran to quickly become angry and
threatening. According to both Zurlo and Vallier, Corcoran told Zurlo that he had a gun
and that he would “fucking shoot [Zurlo].” Corcoran also allegedly told Zurlo to “get
out of here or I’ll just fucking kill you next time.”
–2– 2720
Seven days later, on May 8, Corcoran again came into Zurlo and Vallier’s
living space uninvited and intoxicated. The couple was lying in bed at the time. Zurlo
again asked Corcoran to announce himself before entering, and Corcoran again became
angry.
According to Vallier, Corcoran said something to the effect that “this is my
house, you know, I do whatever the fuck I want, and if you don’t like it, you can get the
hell out.” Vallier later testified that Corcoran would not leave and he continued to follow
Zurlo and yell at him, goading him to “come at him, to fight him.” Vallier was
frightened, and she “kind of tuned out what was being said.” She did not hear Corcoran
threaten to shoot Zurlo; nor did she see Corcoran with a gun.
At one point, Vallier saw Corcoran step up to the bed, and she saw his hand
go down towards his side. Out of her peripheral vision, Vallier saw Zurlo reach over to
the nightstand to grab his gun from its holster; Zurlo then fired a shot at Corcoran, hitting
him in the head. Corcoran died at the scene.
Following his arrest, Zurlo waived his Miranda rights and one of the
investigating officers, Investigator Edward Halbert, interviewed him. Although Zurlo’s
version of events was slightly different from Vallier’s, Zurlo was fairly consistent about
what he believed had happened.
According to Zurlo, Corcoran was drunk and became angry when Zurlo
asked him to announce his presence before entering their living space. Zurlo said that
Corcoran was screaming and yelling about how it was his house. Zurlo said he was
trying to get away from him, and Corcoran said “something about, I can — I can end you
right now, or I should kill you right now, or something.” Immediately after this threat,
Zurlo said that he saw Corcoran reach behind his back. Zurlo told Halbert that he
thought Corcoran was reaching for a gun, and before he “even realized exactly what had
happened, [he] pulled and fired” his own gun.
–3– 2720
Initially, Zurlo told Halbert that he pulled his gun from a holster on his
body. But when Halbert told him that Vallier said that the gun was on the nightstand,
Zurlo recalled that he was not wearing pants and he agreed that he had grabbed the gun
from the nightstand. Zurlo was consistent, however, in stating that Corcoran threatened
to kill him that night and that he thought that Corcoran had a gun.1 Zurlo told Halbert
that he knew Corcoran had some rifles and handguns, although he had not seen them
personally. He also said that Corcoran had threatened to shoot him about a week earlier
when he and Vallier had first moved in.
Zurlo admitted that he did not see Corcoran with a gun on the night of the
shooting. But he told Halbert that he thought Corcoran had a gun because of “the way
[Corcoran] was standing [and] the way he was presenting himself.” According to Zurlo,
Corcoran had a drink in his left hand and he was “putting his right hand behind his back
as he’s saying, I can just fucking end you right now.” Zurlo said he “[didn’t] know what
happened” and he “thought for sure [Corcoran] was reaching for a weapon.”
Zurlo was charged with first-degree murder and a grand jury hearing was
held May 15-16, 2014 in Fairbanks.
1
The following is a representative sample of the way Zurlo answered Investigator
Halbert’s questions:
Investigator Halbert: Last night, did he threaten to kill you, threaten any
harm?
Zurlo: He — he said, I could end — I can end you right here and now.
Investigator Halbert: Where was he at?
Zurlo: Or I can end you right now.
Investigator Halbert: Where was he at when he said that?
Zurlo: He was right there.
Investigator Halbert: Did you feel he could do that?
Zurlo: He made that statement, started reaching behind his back, and the
only thing I pictured was a gun coming out, and I just fired.
–4– 2720
On the day of the grand jury hearing, but before it began, the prosecutor
interviewed Serena Vallier. A paralegal from the prosecutor’s office took notes of the
interview. In the interview, Vallier told the prosecutor that, although she did not hear
Corcoran threaten to kill Zurlo on the night of the shooting, Corcoran had “more than
once said he was going to shoot [Zurlo].” Vallier also corroborated Zurlo’s claim that
Corcoran threatened to shoot Zurlo the first night they moved in and that Corcoran told
the couple that he had a gun, although they did not see one. Vallier also said that
Corcoran kept a gun in the back of his waistband.
A few hours after this interview, the prosecutor told the grand jury in his
opening statement that Corcoran “wasn’t known to carry a gun on his person or anything
like that.” Vallier was called as a witness to testify. The prosecutor did not ask her about
Corcoran’s prior threat to shoot Zurlo; nor did he ask whether Corcoran was known to
carry a gun.
After Vallier testified, the prosecutor called Trooper Joseph Harris as a
witness. Trooper Harris testified regarding Zurlo’s post-arrest statements to Investigator
Halbert.
Trooper Harris was authorized to testify regarding Zurlo’s statements to
Investigator Halbert under Alaska Criminal Rule 6(r)(3), which allows a peace officer
who is involved in a criminal investigation to testify to another peace officer’s statements
and observations made during the course of the investigation, provided that additional
evidence is introduced to corroborate the statement. Criminal Rule 6(r)(3) is an
exception to the general rule that hearsay that would be inadmissible at trial is also
inadmissible before the grand jury absent compelling justification.2
2
Alaska R. Crim. P. 6(r)(1).
–5– 2720
However, there are limits to how this exception can be used. Criminal Rule
6(r)(4) specifically provides that “[i]f the testimony presented by a peace officer under
[Criminal Rule 6(r)(3)] is inaccurate because of intentional, grossly negligent, or
negligent misstatements or omissions, then the court shall dismiss an indictment resulting
from the testimony if the defendant shows that the inaccuracy prejudices substantial
rights of the defendant.”
As the superior court later found, Trooper Harris did not accurately portray
Zurlo’s statements to the grand jury. The substance of Trooper Harris’s testimony began
as follows:
Prosecutor: . . . first of all, did [Zurlo] admit to killing
Steven Corcoran?
Harris: He admitted to shooting him in the face.
Prosecutor: Okay. And what was his initial story of
about how that occurred?
Harris: He said that they were in an argument, that
Steven had come down the stairs. They got into an argument.
That he pulled a firearm from his waistband and shot him in
the face.
Trooper Harris subsequently testified that Zurlo had “chang[ed] his story,”
and he told the grand jury that Zurlo had originally said that he pulled his gun from his
waistband but he later admitted that he pulled the gun from the nightstand. The
following exchange then occurred:
Prosecutor: Okay. And why did he say that he shot
[Corcoran]?
Harris: He said it was just a reaction.
Prosecutor: Okay. Did he state that he was threatened
— well, did he say that he was physically assaulted, anything
like that?
–6– 2720
Harris: No, he did not.
Trooper Harris then testified that Zurlo said that he did not see Corcoran
with a gun that night, and he testified that Zurlo “never said that he saw [Corcoran]
carrying a gun before.” Trooper Harris also testified that the troopers had not found any
handguns belonging to Corcoran when they searched the house, although they did
recover “a couple of rifles.” (The night after the grand jury proceeding was over, the
troopers received a handgun belonging to Corcoran that had been found by Corcoran’s
girlfriend among his possessions.)
At the conclusion of the grand jury proceeding, the grand jury indicted
Zurlo on one count of first-degree murder for intentionally killing Corcoran.
Zurlo subsequently moved to dismiss the indictment, arguing that the
prosecutor had violated his duty to present exculpatory evidence and that the prosecutor
had presented grossly inaccurate and misleading evidence to the grand jury in violation
of Criminal Rule 6(r)(4). The State opposed the motion.
The superior court denied the motion. The court concluded that, because
Vallier’s grand jury testimony did not corroborate Zurlo’s exculpatory statements, the
prosecutor had either not violated his duty to provide exculpatory evidence or,
alternatively, that any violation was harmless. The court expressed concern, however,
regarding the omissions and inaccuracies in Trooper Harris’s testimony.
The court was particularly disturbed by what it viewed as a “conscious
decision” on the part of the prosecutor to prevent the grand jury from learning about
Zurlo’s claim of self-defense. The court noted that the prosecutor had started to ask the
trooper whether Zurlo said that Corcoran threatened him, but the prosecutor then
reformulated the question to ask only whether Corcoran had physically assaulted Zurlo.
The court noted that “[t]he pause and restatement of the second question suggests it was
[a] conscious decision by the prosecutor not to ask a question that would necessitate
–7– 2720
opening up testimony about self-defense.” The court further found that “[t]he failure of
the State to elicit the full account of Zurlo’s explanation of what he was reacting to is an
omission” in violation of Criminal Rule 6(r)(4).
Despite these findings, the court denied the motion to dismiss, concluding
that Zurlo had failed to show that the grand jury “almost surely” would have failed to
indict if these violations had not occurred.
At the time the superior court issued its order, the court was unaware of
Vallier’s interview with the prosecutor in which she had corroborated Zurlo’s claims that
Corcoran was known to carry a handgun and that he had threatened to shoot Zurlo a
week earlier. The prosecutor had not provided the defense with the paralegal’s notes in
discovery. The prosecutor also did not alert the court to the existence of these partially
corroborating statements, even though the court’s decision relied on the lack of any
corroboration for Zurlo’s statements.
Nine months later, shortly before trial, the prosecutor produced the
paralegal interview notes in discovery to the defense. The defense lawyer then moved
for reconsideration of the motion to dismiss the indictment. The court denied the motion
for reconsideration.
At trial, the jury acquitted Zurlo of first-degree murder but convicted him
of second-degree murder.3 This appeal followed.
The role of the prosecutor at grand jury under Alaska law
Article I, section 8 of the Alaska Constitution provides, in pertinent part,
that “[n]o person shall be held to answer for a capital, or otherwise infamous crime,
3
AS 11.41.100(a)(1)(A) (murder in the first degree); AS 11.41.110(a)(1) (murder in
the second degree).
–8– 2720
unless on a presentment or indictment of a grand jury.” The constitutional right to a
grand jury indictment in a felony prosecution “ensures that a group of citizens will make
an independent determination about the probability of the accused’s guilt ‘before the
accused suffers any of the grave inconveniences which are apt to ensue upon the return
of a felony indictment.’”4 More than just a rubber stamp of the prosecution, the grand
jury “plays a protective role by operat[ing] to control abuses by the government and
protect[ing] the interests of the accused.”5
The duty of a prosecutor to inform the grand jury of exculpatory evidence
arises directly from the independence of the grand jury and the protective role it is
intended to play in Alaska’s criminal justice system. More than forty years ago, in Frink
v. State, the Alaska Supreme Court reasoned that, unless the grand jury was made aware
of evidence tending to negate the defendant’s guilt, it could not be expected to exercise
its powers to call additional witnesses and to inquire further into issues which it might
deem significant.6 The court therefore held that a prosecutor had an affirmative duty,
under Alaska Criminal Rule 6(q), to present exculpatory evidence to the grand jury.7
This duty is consistent with the American Bar Association’s ethical standards for
4
Cameron v. State, 171 P.3d 1154, 1156 (Alaska 2007) (quoting State v. Gieffels, 554
P.2d 460, 465 (Alaska 1976)); see also Wassillie v. State, 411 P.3d 595, 608 (Alaska 2018)..
5
Cameron, 171 P.3d at 1156 (alteration in original) (citations and internal quotation
marks omitted); see also Preston v. State, 615 P.2d 594, 602 (Alaska 1980) (“The grand jury
functions as a ‘shield’ as well as a ‘sword’ of justice, and ‘should operate to control abuses
by the government and protect the interests of the accused.’” (quoting United States v. Cox,
342 F.2d 167, 186 n.1 (5th Cir. 1965) (Wisdom, J., concurring) and Coleman v. State, 553
P.2d 40, 47 (Alaska 1976))).
6
Frink v. State, 597 P.2d 154, 165-66 (Alaska 1979).
7
Id. at 164.
–9– 2720
prosecutors8 and with “the proper role of the district attorney in a criminal prosecution,”
which is to seek justice, not simply indictment or conviction.9
The Frink court also made clear, however, that the duty to present
exculpatory evidence to the grand jury “does not turn the prosecutor into a defense
attorney.”10 The prosecutor “does not have to develop evidence for the defendant and
present every lead possibly favorable to the defendant.”11 As the supreme court
explained in a later case, there is a difference between evidence that is exculpatory and
evidence that is “merely inconsistent.”12
8
See id. at 165 (“The prosecutor should disclose to the grand jury any evidence which
he knows will tend to negate guilt.” (quoting ABA Standards Relating to the Prosecution
Function and the Defense Function § 3.6(b) (Approved Draft 1971))). The current ABA
standards define the prosecutor’s duty as follows:
A prosecutor with personal knowledge of evidence that directly negates the
guilt of a subject of the investigation should present or otherwise disclose that
evidence to the grand jury. The prosecutor should relay to the grand jury any
request by the subject or target of an investigation to testify before the grand
jury, or present other non-frivolous evidence claimed to be exculpatory.
ABA Criminal Justice Standards for the Prosecution Function § 3-4.6(e) (4th ed. 2017).
9
Frink, 597 P.2d at 165.
10
Id. at 166.
11
Id.
12
Preston v. State, 615 P.2d 594, 602 (Alaska 1980); see also Milligan v. State, 286 P.3d
1065, 1071 (Alaska App. 2012) (“The mere fact of inconsistency does not automatically
convert all such evidence into exculpatory material.” (quoting Preston, 615 P.2d at 602));
State v. McDonald, 872 P.2d 627, 639 (Alaska App. 1994) (holding that evidence that “may
well be exculpatory in the limited sense that it may be the kind of evidence skilled counsel
might develop” does not necessarily “tend to negate [a defendant’s] guilt in its own right”).
– 10 – 2720
Thus, this Court has previously held that evidence is considered
“exculpatory” for purposes of a prosecutor’s duty to disclose such evidence to the grand
jury only if the evidence is “substantially favorable to the defendant.”13 And evidence
is considered “substantially favorable to the defendant” only if it tends, in and of itself,
to negate the defendant’s guilt.14 Moreover, the failure to present exculpatory evidence
to the grand jury is generally rendered harmless where the strength of the evidence
presented to the grand jury is more than enough to allow the grand jury to return a true
bill.15
The prosecutor’s duty to present exculpatory evidence is also informed by
the prosecutor’s duty of candor and fair dealing.16 As the supreme court explained in
Preston v. State, the purpose of the Frink rule is not to turn the grand jury proceeding
13
See, e.g., Williams v. State, 418 P.3d 870, 877-78 (Alaska App. 2018); Shorthill v.
State, 354 P.3d 1093, 1114-15 (Alaska App. 2015); Milligan, 286 P.3d at 1071; Cathey v.
State, 60 P.3d 192, 195 (Alaska App. 2002); McDonald, 872 P.2d at 639; Lipscomb v. State,
700 P.2d 1298, 1302 (Alaska App. 1985); Tookak v. State, 648 P.2d 1018, 1021 (Alaska
App. 1982).
14
See Williams, 418 P.3d at 877-78; Milligan, 286 P.3d at 1071; Cathey, 60 P.3d at 195;
McDonald, 872 P.2d at 639.
15
See Lipscomb, 700 P.2d at 1304 n.4 (noting that even if the prosecutor had introduced
the exculpatory evidence, the other testimony and physical evidence “was more than enough
for the grand jury to return a true bill”); cf. Giacomazzi v. State, 633 P.2d 218, 224 (Alaska
1981) (use of inadmissible hearsay at grand jury will not vitiate an indictment if other
evidence was presented which justified the indictment).
16
See Alaska R. Prof. Conduct 3.3 (requiring candor toward the tribunal); Alaska R.
Prof. Conduct 3.4 (requiring fairness to opposing party and counsel); Alaska R. Prof.
Conduct 3.8(d) (listing special responsibilities of a prosecutor including “timely disclosure
to the defense of all evidence or information known to the prosecutor that tends to negate the
guilt of the accused or mitigates the offense”).
– 11 – 2720
into “a mini-trial.”17 Instead, it is simply to ensure that the evidence presented by the
prosecutor is “reasonably complete and fair in the context of a grand jury proceeding.”18
The requirement that the prosecutor’s presentation of evidence at grand jury
be “reasonably complete and fair” is universally recognized, even among jurisdictions
that do not impose an affirmative duty on prosecutors to present exculpatory evidence
to the grand jury.19 For example, Illinois courts do not recognize any duty to present
exculpatory evidence to the grand jury, but they do recognize that “[t]he due process
rights of a defendant may be violated if the prosecutor deliberately or intentionally
misleads the grand jury, uses known perjured or false testimony, or presents other
deceptive or inaccurate evidence.”20
Other jurisdictions that recognize a limited duty to present exculpatory
evidence to the grand jury have similarly cautioned prosecutors against misleading the
grand jury with inaccurate or incomplete information. As the Massachusetts Supreme
Court explained in a recent case:
A prosecutor is not required to present all possibly
exculpatory evidence to a grand jury. But a prosecutor
cannot be permitted to subvert the integrity of grand jury
17
Preston, 615 P.2d at 602 (quoting State v. Gieffels, 554 P.2d 460, 465 (Alaska 1976)).
18
Id. at 603; see also Frink v. State, 597 P.2d 154, 166 (Alaska 1979) (concluding that
prosecutor’s presentation constituted “a reasonable and fair presentation” of relevant
evidence).
19
See ABA Criminal Justice Standards for the Prosecution Function § 3-4.5 (4th ed.
2017).
20
People v. DiVincenzo, 700 N.E.2d 981, 991 (Ill. 1998), abrogated on other grounds
by People v. McDonald, 77 N.E.3d 26 (Ill. 2016).
– 12 – 2720
proceedings by selling the grand jury shoddy merchandise
without appropriate disclaimers.[21]
The current American Bar Association Standards for the Prosecution Function likewise
emphasize that “the prosecutor should respect the independence of the grand jury and
should not preempt a function of the grand jury, mislead the grand jury, or abuse the
processes of the grand jury.”22
The requirement that the prosecutor’s presentation of evidence at grand jury
be “reasonably complete and fair” also provides the underpinning for criminal rules such
as Alaska Criminal Rule 6(r)(4), which is directly at issue in this case. As already
explained, Alaska Criminal Rule 6(r)(3) authorizes peace officers to testify at grand jury
to the hearsay statements and observations of another peace officer involved in the
investigation, even though such testimony would be inadmissible at trial. But Criminal
Rule 6(r)(4) imposes significant limitations on this practice. This rule provides that:
If the testimony presented by a peace officer under [Criminal
Rule 6(r)(3)] is inaccurate because of intentional, grossly
negligent, or negligent misstatements or omissions, then the
court shall dismiss an indictment resulting from the testimony
if the defendant shows that the inaccuracy prejudices
substantial rights of the defendant.[23]
The underlying purpose of this provision is clear: Under Alaska law, prosecutors bear
an affirmative duty to ensure that the hearsay testimony of peace officers is accurate and
21
Commonwealth v. Hall, 147 N.E.3d 1078, 1093 (Mass. 2020) (citations and internal
quotation marks omitted).
22
ABA Criminal Justice Standards for the Prosecution Function § 3-4.5(a) (4th ed.
2017).
23
Alaska R. Crim. P. 6(r)(4).
– 13 – 2720
that the officer’s testimony does not mislead the grand jury or distort the known evidence
in the case.24
The prosecutor in the current case violated his duty of candor and fair
dealing and did not provide a reasonably complete and fair presentation
to the grand jury
Here, there is no question that the peace officer’s testimony was both
incomplete and misleading. The peace officer testified that Zurlo admitted to shooting
Corcoran. But he did not testify to the remainder of Zurlo’s statement — that Zurlo
claimed to have shot Corcoran in self-defense because Corcoran threatened his life and
appeared to be reaching for a gun. As a result, the grand jury was left with the erroneous
impression that Zurlo had confessed to shooting Corcoran essentially for no reason.
The Massachusetts Supreme Court addressed a similar situation in
Commonwealth v. O’Dell.25 In that case, the defendant had given a statement to the
police in which he admitted to being the driver of a van that was used as a getaway car
following a robbery.26 Although the defendant admitted to being in the van with the co-
defendant who committed the robbery, he denied knowing both that the co-defendant
24
See Wassillie v. State, 411 P.3d 595, 608 (Alaska 2018) (stating that “Alaska’s
atypically strict evidentiary standards for grand jury proceedings reflect the constitutional
framers’ concerns about prosecutors’ control over what the grand jury hears”); Cameron v.
State, 171 P.3d 1154, 1157-59 (Alaska 2007) (noting that the requirements of Alaska
Criminal Rule 6 “would be empty if the prosecutor were not required to inform the grand jury
of the existence of such [exculpatory] evidence”).
25
Commonwealth v. O’Dell, 466 N.E.2d 828, 830 (Mass. 1984).
26
Id.– 14 – 2720
was going to commit a robbery and that the co-defendant had committed a robbery.27
The defendant also admitted that the co-defendant had yelled “[l]et’s get out of here” but
he claimed that he thought the co-defendant had only done some shoplifting.28
At the grand jury, a detective testified to the defendant’s statement, but he
omitted any reference to the defendant’s denial of involvement in, or knowledge of, the
robbery.29 The superior court dismissed the indictment based on those omissions.30
In affirming the dismissal, the Massachusetts Supreme Court noted that it
considered the omissions to have been more than “a mere withholding of exculpatory
evidence.”31 As the court explained, the presentation of the defendant’s edited statement
“tended to distort the meaning of that portion of the defendant’s statement that was
repeated to the grand jury and, in addition, strongly suggested, incorrectly, an admission
of guilt by silence.”32 The court noted that, because it would be reasonable for a person
who did not know about the robbery to disclaim knowledge of the robbery at the same
time that he admitted having been the driver of the van, the grand jury was likely to treat
the defendant’s statement as a full confession of guilt when it was not one.33 The court
further concluded that this selective presentation of the defendant’s statement impaired
27
Id.28
Id.29
Id. at 828-29.
30
Id.
31
Id. at 830.
32
Id.
33
Id.
– 15 – 2720
the integrity of the grand jury proceedings and required dismissal without prejudice of
the indictment.34
The current case is remarkably similar to O’Dell. Here, the prosecutor was
well aware that Zurlo claimed that he shot Corcoran because (according to Zurlo)
Corcoran had threatened to kill or “end” Zurlo “here and now” while reaching behind
his back for what Zurlo believed was a gun. The prosecutor was also well aware, from
both Zurlo’s statements and Vallier’s corroborating statements in her pre-grand jury
interview, that Corcoran had threatened to shoot Zurlo under very similar circumstances
less than a week earlier, and that Corcoran was known to carry a gun in the back of his
waistband.
In defending his decision not to present Zurlo’s statements to the grand
jury, the prosecutor argued that he was not required to present what he considered to be
false statements by the defendant. But it was the grand jury that was tasked with
determining the potential meaning and significance of these statements, not the
prosecutor.35 As a member of this Court has previously noted, the State “must not lose
sight of the fact that it is the prosecutor who serves the grand jury and not the
converse.”36
34
Id. at 830-31.
35
See Coleman v. State, 553 P.2d 40, 52 (Alaska 1976) (“In order to determine whether
other available evidence will explain away the charge, the grand jury had the right to know
if the defendant had made any exculpatory statements to the police.”); Frink v. State, 597
P.2d 154, 165 (Alaska 1979) (noting that the “grand jury cannot be expected to call for
evidence of which it is kept ignorant” (quoting Johnson v. Superior Court, 539 P.2d 792, 794
(Cal. 1975) (en banc))).
36
Gaona v. State, 630 P.2d 534, 539 (Alaska App. 1981) (Bryner, J., concurring); see
also Alaska R. Crim. P. 6(i) (specifying that the prosecutor has a duty “to advise [the grand
jury] of their duties”); Cameron v. State, 171 P.3d 1154, 1157-58 (emphasizing that the
(continued...)
– 16 – 2720
Moreover, the flaw in the presentation of evidence to the grand jury goes
much deeper than just a failure to introduce exculpatory statements. By selectively
curating Zurlo’s statements so that the grand jury heard only the portion that was
inculpatory — i.e., Zurlo’s admission that he shot Corcoran — without hearing the
exculpatory statements that provided the direct context for the inculpatory statements —
i.e., Zurlo’s claim that he shot Corcoran in self-defense — the testifying officer actively
misrepresented what Zurlo had said. And the prosecutor not only allowed this to occur
but directly sanctioned the deception by rephrasing his own question to ensure that the
jury did not hear about Corcoran’s threats to Zurlo:
Prosecutor: Okay. And why did he say that he shot
[Corcoran]?
Harris: He said it was just a reaction.
Prosecutor: Okay. Did he state that he was threatened
— well, did he say that he was physically assaulted, anything
like that?
Harris: No, he did not.
This exchange appears to have been intended to leave the grand jury with the impression
not only that Zurlo was never physically attacked by Corcoran but also that Zurlo was
never threatened by Corcoran and never claimed to have felt threatened by Corcoran.
The distinction between a prosecutor failing to introduce exculpatory
evidence and a prosecutor actively misleading the grand jury to believe that such
exculpatory evidence does not exist is illustrated by a series of New York appellate
cases. In New York, prosecutors do not have an affirmative duty to present exculpatory
36
(...continued)
safeguards provided through Criminal Rule 6 “help[] prevent the grand jury from becoming
a mere rubber stamp for the prosecutor or an administrative arm of the district attorney’s
office” (citations and internal quotation marks omitted)).
– 17 – 2720
evidence to the grand jury, but they are not permitted to present a defendant’s statement
in a way that is misleading. In People v. Isla, a New York appellate court strictly
admonished the prosecutor for engaging in this type of curation:
While the prosecutor usually has wide discretion in these
matters and is not strictly required to present exculpatory
evidence in seeking the Grand Jury’s indictment[,] . . . it
seems more than just a little unfair for the People’s attorney,
in this case, not to have disclosed the whole of defendant’s
confession. Merely having the officer testify that the
defendant “said that he had shot a man the manager during an
argument” is not enough. He should have quoted the rest of
the sentence, i.e., that defendant had shot “in self-defense.”
The Grand Jury was entitled to the full story so that it could
make an independent decision that probable cause existed to
support an indictment.[37]
As a result of Isla, New York courts have adopted a clear rule that when “a prosecutor
introduces a defendant’s inculpatory statement to the grand jury, he is obligated to
introduce an exculpatory statement given during the course of the same interrogation
which amplifies the inculpatory statement if it supports a justification defense.”38
In the current case, Zurlo’s defense attorney made clear that the
prosecutor’s actions had undermined the grand jury’s ability to fulfill its protective role
and make an independent decision regarding the probability of Zurlo’s guilt. In his
argument to the superior court, the attorney noted that this case involved more than just
a failure to inform the grand jury of Zurlo’s self-defense claim. Instead, the prosecution
“through their witnesses affirmatively denied the existence of Zurlo’s self-defense
37
People v. Isla, 96 A.D.2d 789, 789 (N.Y. App. Div. 1983) (emphasis added) (citations
omitted).
38
People v. Morel, 131 A.D.3d 855, 860 (N.Y. App. Div. 2015); People v. Falcon, 204
A.D.2d 181, 181-82 (N.Y. App. Div. 1994).
– 18 – 2720
claim.” As the attorney pointed out, the result was that the grand jury was not only kept
ignorant of the self-defense claim, but it was also effectively prevented from serving its
constitutionally mandated role of protecting the interests of the accused and controlling
abuses by the government.39 The grand jury had no reason to inquire into whether there
was additional evidence that would “explain away the charge” because it was specifically
led to believe that no such evidence existed and that Zurlo had admitted to shooting
Corcoran during an argument for essentially no reason.
In its order denying Zurlo’s motion to dismiss the indictment, the superior
court recognized that the prosecutor had failed in his duty to “fully and fairly” present
the available evidence. The superior court also found that the prosecutor’s pause and
restatement of his question about whether Zurlo said that he felt threatened into a
question about physical assault suggested that it was a “conscious decision” by the
prosecutor not to ask a question that would have allowed the grand jury to hear the full
story of what Zurlo said.
The superior court nevertheless denied the motion to dismiss the indictment
under the reasoning that Zurlo had failed to prove that introducing the exculpatory
statements “would almost surely have resulted in a failure to indict.” As Judge Hanley
explains in his concurrence, the “would almost surely have resulted in a failure to indict”
language is derived primarily from this Court’s unpublished cases and was originally
intended to be used with regard to a prosecutor’s failure to instruct the grand jury on an
affirmative defense. It has never been applied by the supreme court or this Court to a
39
See Cameron, 171 P.3d at 1156 (“The grand jury plays a protective role by
‘operat[ing] to control abuses by the government and protect[ing] the interests of the
accused.’” (quoting Preston v. State, 615 P.2d 594, 602 (Alaska 1980))); see also Frink v.
State, 597 P.2d 154, 165 (1979) (“[T]he vital function [of the grand jury is] protection of the
innocent against oppression and unjust prosecution.” (quoting State v. Gieffels, 554 P.2d 460,
464 (Alaska 1976))).
– 19 – 2720
prosecutor’s failure to introduce exculpatory evidence to the grand jury. It is the wrong
standard to apply in circumstances such as the present case where the prosecutor not only
failed to introduce the defendant’s exculpatory statements but also sanctioned — and
indeed actively facilitated — the presentation of a highly misleading and distorted
version of the defendant’s statements to the grand jury.
A more appropriate standard to use in these circumstances is the one found
in Criminal Rule 6(r)(4). That provision provides:
If the testimony presented by a peace officer under [Criminal
Rule 6(r)(3)] is inaccurate because of intentional, grossly
negligent, or negligent misstatements or omissions, then the
court shall dismiss an indictment resulting from the testimony
if the defendant shows that the inaccuracy prejudices
substantial rights of the defendant.[40]
Here, the prosecutor and the peace officer appear to have actively colluded to ensure that
the grand jury never heard about Zurlo’s self-defense claim. As a result of their actions,
the grand jury was left with the false impression that Zurlo had confessed to killing
Corcoran for essentially no reason. It is not surprising that the grand jury indicted on
first-degree murder under these circumstances because there was no reason for the grand
jury to think that this shooting was anything other than an intentional execution.
Typically, when we assess prejudice in the grand jury context, we look to
whether the grand jury’s decision to indict was substantially affected. Thus, for example,
the use of inadmissible evidence before a grand jury will require dismissal of the
defendant’s indictment “only if the remaining, properly presented evidence was
insufficient to support the return of an indictment or if the inadmissible evidence
40
Alaska R. Crim. P. 6(r)(4).
– 20 – 2720
appreciably affected the outcome of the grand jury’s deliberations.”41 In the context of
false or inaccurate evidence, the supreme court has similarly held that “if the
unintentional misstatement goes to a nonmaterial fact that would not substantially affect
the grand jury’s conclusion, it would not be reversible error.”42
But these standards presume that the false evidence was presented to the
grand jury “without knowledge or complicity” of the prosecutor.43 Here, in contrast, the
prosecutor was directly complicit in the presentation of a highly misleading version of
facts. The prosecutor was aware that Zurlo claimed that Corcoran threatened to kill him
and that Corcoran appeared to be reaching for a gun, and, as the superior court found, the
prosecutor made a “conscious decision” to reframe his question to the testifying officer
to ensure that the grand jury did not hear this material evidence.
By deliberately misleading the grand jury about the defendant’s exculpatory
statements, the prosecutor was actively subverting the integrity of the grand jury process
and directly prejudicing the defendant’s substantial rights.44 As the Massachusetts
Supreme Court explained in O’Dell:
41
State v. Green, 810 P.2d 1023, 1027 (Alaska App. 1991); see State v. McDonald, 872
P.2d 627, 638 (Alaska App. 1994); Stern v. State, 827 P.2d 442, 445-46 (Alaska App. 1992);
see also Wassillie v. State, 411 P.3d 595, 608-09 (Alaska 2018) (“An indictment based upon
inadmissible evidence is considered invalid; but if sufficient admissible evidence was
presented to the grand jury for it to indict, then the presentation of inadmissible evidence is
harmless error.”).
42
McMahan v. State, 617 P.2d 494, 500 (Alaska 1980) (quoting State v. Keith, 612 P.2d
977, 981 (Alaska 1980)).
43
Miller v. State, 629 P.2d 546, 547-48 (Alaska App. 1981); McMahan, 617 P.2d at 500.
44
Cameron, 171 P.3d at 1159 (emphasizing the importance of an independent grand jury
that is able to fulfill its constitutionally mandated protective role).
– 21 – 2720
Our affirmance of the dismissal of the indictment results from
our conclusion that the integrity of the grand jury proceeding
was impaired by an unfair and misleading presentation to the
grand jury of a portion of a statement attributed to the
defendant without revealing that an exculpatory portion of
the purported statement had been excised. We do not
announce a rule that would require prosecutors in all
instances to bring exculpatory evidence to the attention of
grand juries. We are satisfied in this case, however, that the
withholding of a portion of the defendant’s statement
distorted the portion that was repeated to the grand jury in a
way that so seriously tainted the presentation to that body that
the indictment should not have been allowed to stand.[45]
We likewise find that the indictment in Zurlo’s case was seriously tainted by the
prosecutor’s actions and the superior court therefore erred in failing to dismiss the
indictment.
We acknowledge the temptation to downplay the egregiousness of what
occurred here because, when all was said and done, the petit jury convicted Zurlo of
second-degree murder (although he was acquitted of first-degree murder). Indeed, some
jurisdictions have held that deficiencies in the grand jury process are nevertheless
rendered moot following the defendant’s conviction at trial.46
45
Commonwealth v. O’Dell, 466 N.E.2d 828, 829 (Mass. 1984).
46
See United States v. Mechanik, 475 U.S. 66, 72-73 (1986) (holding under federal law
that defect in grand jury process was rendered moot by defendant’s conviction following
error-free trial); People v. Isla, 96 A.D.2d 789, 789-90 (N.Y. App. Div. 1983) (admonishing
prosecutor for presenting misleading version of defendant’s statements but ultimately
concluding that dismissal was not required “since defendant was able to present his defense
of self-defense and justification at trial”). But see Wassillie, 411 P.3d at 608-11 (rejecting
Mechanik as a matter of state constitutional law).
– 22 – 2720
But Alaska law is clear that the grand jury indictment is the “foundation”
underlying a criminal prosecution in this state: “If the indictment is seriously flawed, the
conviction cannot stand.”47 As the supreme court explained in Adams v. State, “If we
were to find that a trial could validate an otherwise invalid indictment, the right to
indictment by a grand jury would become a nullity and the grand jury would cease to
operate as a check upon the district attorney’s power to initiate prosecution.”48 It is
likely true that a defendant’s constitutional right to indictment under the Alaska
Constitution would ultimately become meaningless if prosecutors were permitted to
manipulate and misrepresent evidence in the manner that occurred here.
Accordingly, because the prosecutor violated his duty to present a
“reasonably complete and fair” presentation to the grand jury and because the
prosecutor’s actions subverted the integrity of the grand jury proceeding, we reverse
Zurlo’s conviction and remand this case to the superior court for further proceedings.49
Conclusion
The judgment of the superior court is REVERSED and this case is
REMANDED for further proceedings consistent with this opinion.
47
Taggard v. State, 500 P.2d 238, 243 (Alaska 1972).
48
Adams v. State, 598 P.2d 503, 510 (Alaska 1979); see also Wassillie, 411 P.3d at 612
(“Only by reversing a conviction based on an invalid indictment can we safeguard the grand
jury’s role as a check on overzealous prosecution.”).
49
Because we are reversing Zurlo’s conviction, we do not reach his other claims on
appeal.
– 23 – 2720
Judge HANLEY, concurring.
In Frink v. State, the Alaska Supreme Court held that the prosecutor in a
felony case is required to present to the grand jury information that reasonably tends to
negate guilt and to present information in a “reasonable and fair” manner.1 The State fell
far short of these duties in its grand jury presentation of evidence against Zurlo. The
supreme court has also held that “[t]he indictment is the foundation underlying a criminal
prosecution. If the indictment is seriously flawed, the conviction cannot stand.”2
Because the grand jury presentation and resulting indictment were seriously flawed, I
agree with the majority that Zurlo’s conviction should not stand.
I write separately only to express concern regarding how some of the
protections of Frink appear to have been eroded in our case law over time.
When the Frink court imposed the duty on the prosecutor to present
exculpatory evidence, it explained that “evidence tending to refute” guilt must be
presented.3 To support its conclusion, the court cited with approval the California
Supreme Court’s holding that a prosecutor must present evidence “reasonably tending
to negate guilt.”4 It further cited the American Bar Association’s standard that if
evidence that “tend[s] to negate guilt” is known to the prosecutor, it should be disclosed
to the grand jury.5 It ultimately concluded that the prosecutor’s presentation in Frink was
1
Frink v. State, 597 P.2d 154, 165-66 (Alaska 1979).
2
Taggard v. State, 500 P.2d 238, 243 (Alaska 1972).
3
Frink, 597 P.2d at 165.
4
Id. (quoting Johnson v. Superior Court, 539 P.2d 792, 796 (Cal. 1975) (en banc)).
5
Id. at 165 (quoting ABA Standards Relating to the Prosecution Function and the
Defense Function § 3.6(b) (Approved Draft 1971)).
– 24 – 2720
“reasonable and fair” and did not violate the State’s obligation.6 The following year, in
Preston v. State7 and Mallott v. State,8 the court reiterated its adoption of the “reasonably
tending to negate guilt” standard and that the State’s presentation must be “reasonably
complete and fair.”9
Since Frink, this Court has changed the “reasonably tending to negate guilt”
standard so that the exculpatory evidence obligation is not triggered unless the
information available to the prosecutor would be “substantially favorable” to the
defendant.10 “Substantially favorable” evidence is defined as evidence that “tends, in and
of itself, to negate the defendant’s guilt.”11
This shift in definition first appeared in a 1982 case, Tookak v. State.12 In
Tookak, this Court justified the shift in standard with citations to two Alaska Supreme
Court cases: McMahan v. State and State v. Keith.13 But neither of these cases actually
6
Id. at 166.
7
Preston v. State, 615 P.2d 594, 602-03 (Alaska 1980).
8
Mallott v. State, 608 P.2d 737, 743-44 (Alaska 1980).
9
Preston, 615 P.2d at 602-03.
10
Tookak v. State, 648 P.2d 1018, 1021 (Alaska App. 1982); see, e.g., Williams v. State,
418 P.3d 870, 877 (Alaska App. 2018); Shorthill v. State, 354 P.3d 1093, 1114-15 (Alaska
App. 2015); Cathey v. State, 60 P.3d 192, 195 (Alaska App. 2002); Hughes v. State, 56 P.3d
1088, 1090 (Alaska App. 2002); State v. McDonald, 872 P.2d 627, 639 (Alaska App. 1994);
Sheldon v. State, 796 P.2d 831, 838 (Alaska App. 1990); York v. State, 757 P.2d 68, 73
(Alaska App. 1988).
11
Williams, 418 P.3d at 877 (quoting Cathey, 60 P.3d at 195); McDonald, 872 P.2d 639(quoting York, 757 P.2d at 73).
12
Tookak, 648 P.2d at 1021.
13
Id. (citing McMahan v. State, 617 P.2d 494, 500 (Alaska 1980) and Keith v. State, 612
(continued...)
– 25 – 2720
involved a prosecutor’s duty to present exculpatory evidence. Instead, they involved a
different defect in a grand jury presentation: the unintentional introduction of false or
inaccurate testimony.14 In both cases, the supreme court held that “if the unintentional
misstatement goes to a nonmaterial fact that would not substantially affect the grand
jury’s conclusion, it would not be reversible error.”15 Relying on these cases, this Court
in Tookak reasoned that a prosecutor’s failure to introduce exculpatory evidence would
likewise be harmless unless the evidence was of a nature that its introduction would
“substantially affect” the grand jury’s conclusion. This Court therefore changed the
definition of “exculpatory evidence” in the grand jury context from evidence “reasonably
tending to negate guilt” to evidence that is “substantially favorable” to the defense.16
However, the problem with introducing a harmlessness standard into the
definition of exculpatory evidence is that the focus is no longer on the prosecutor’s
affirmative duty to present evidence tending to negate guilt. Instead, the focus is on the
practical effects that failure to comply with that duty might cause. This is perhaps fine
from an appellate review standpoint, but it is not necessarily how a prosecutor should be
thinking about his or her duty in the first instance. In my view, it would have been better
to retain the “reasonably tending to negate guilt” standard used in the Alaska Supreme
13
(...continued)
P.2d 977, 981 (Alaska 1980)).
14
See McMahan, 617 P.2d at 499-500; Keith, 612 P.2d at 981; see also Miller v. State,
629 P.2d 546, 547-48 (Alaska App. 1981) (describing the holdings of Keith and McMahan
as applying to situations where “false evidence is presented to the grand jury without
knowledge or complicity of the state and is immaterial”).
15
McMahan, 617 P.2d at 500 (quoting Keith, 612 P.2d at 981).
16
Tookak, 648 P.2d at 1021. In Tookak, this Court also cited Mallott v. State, 608 P.2d
737, 743-44 (Alaska 1981), which used the “reasonably tending to negate guilt” standard
employed in other Alaska Supreme Court cases.
– 26 – 2720
Court cases to define the scope of a prosecutor’s duty and to then apply a separate
harmlessness analysis for when a failure to comply with that duty requires dismissal of
an indictment. This would have ensured that a prosecutor’s duty to present exculpatory
evidence under Frink did not become subsumed into a harmlessness analysis, thereby
providing clearer direction to prosecutors regarding their duty under Frink.
Further compounding the problem, some unpublished Court of Appeals
cases have imposed a standard that, if a prosecutor fails to instruct a grand jury on self-
defense, the indictment will not be dismissed unless the grand jury “almost surely”
would have failed to indict if it had been instructed. I believe this standard has been
adopted and applied imprecisely, contrary to the intent of Frink.
The language “would almost surely have resulted in a failure to indict” is
from a 1983 Alaska Supreme Court case, Grant v. State.17 But it is originally derived
from a New York trial decision, People v. Karassik, which used the language to
differentiate between the typical situation in which a prosecutor is not required to instruct
the grand jury on an affirmative defense (such as entrapment) and those rare situations
where the evidence is such that the prosecutor is required to instruct the grand jury on
an affirmative defense because instruction on the affirmative defense “would almost
surely have resulted in a failure to indict.”18
It is noteworthy that the language “would almost surely have resulted in a
failure to indict” does not appear in any other New York cases. Nor is it used again by
the Alaska Supreme Court. But it is used in a number of unpublished Court of Appeals
decisions. Some of these decisions involve affirmative defenses such as diminished
capacity, but many of them also involve self-defense, which is not an affirmative defense
17
Grant v. State, 621 P.2d 1338, 1341 (Alaska 1981).
18
Id. (quoting People v. Karassik, 396 N.Y.S.2d 765, 771 (N.Y. Sup. Ct. 1977)).
– 27 – 2720
under Alaska law.19 For example, in Delolli v. State, this Court held that a prosecutor is
not required to instruct the grand jury “on a potential defense (such as self-defense)
unless the evidence supporting the defense is so strong that had the instruction been
given[,] . . . the grand jurors ‘almost surely’ would have failed to indict the defendant.”20
My concern with the “almost surely” language is three-fold. First, it is
being misused by trial courts to define the scope of a prosecutor’s duty to present
exculpatory evidence when it was intended to apply only to a prosecutor’s duty to
instruct on an affirmative defense. Second, the “would almost surely have resulted in a
failure to indict” standard appears to be a higher standard than the “substantially affects”
harmlessness standard used to evaluate other types of grand jury defects. Third,
application of such a standard to a prosecutor’s duty to present exculpatory evidence
represents a significant departure from the “reasonably tending to negate guilt” standard
that the Frink court established.
I conclude that, over time, the standards intended to give strength and
practical effect to Frink’s holding have failed to do so. The present case demonstrates
this failure. On appeal, Zurlo asserts that the prosecutor failed to present four
exculpatory statements to the grand jury: (1) that a week before the shooting Corcoran
threatened to kill Zurlo the next time he complained about Corcoran entering Zurlo’s
bedroom unannounced; (2) that Zurlo knew that Corcoran possessed a handgun
(although Zurlo had not seen it); (3) that Corcoran reached behind his back and
19
Compare Wilkins v. State, 2003 WL 22017306, at *2 (Alaska App. Aug. 27, 2003)
(unpublished) (diminished capacity) with Barclay v. State, 2017 WL 1200905, at *2 (Alaska
App. Mar. 29, 2017) (unpublished) (self-defense), Pitt v. State, 1997 WL 796503, at *2
(Alaska App. Dec. 24, 1997) (unpublished) (self-defense), and Smith v. State, 1995 WL
17221231, at *2 (Alaska App. Aug. 9, 1995) (unpublished) (self-defense).
20
Delolli v. State, 2003 WL 22143282, at *4 (Alaska App. Sept. 17, 2003) (unpublished)
(quoting Grant, 621 P.2d at 1341).
– 28 – 2720
threatened to kill or “end” Zurlo “here and now”; and (4) that Zurlo believed Corcoran
was reaching behind his back for a weapon, prompting him to pick up his gun and shoot
Corcoran.
I believe that these statements, obviously indicating Zurlo’s belief that he
acted in self-defense, clearly constitute evidence “reasonably tending to negate guilt” —
which I believe is the standard the Frink court requires prosecutors to employ.
The Frink court reasoned that a vital function of the grand jury is to protect
innocent people from unjust prosecutions.21 Criminal Rule 6(q) empowers a grand jury
to do this by ordering exculpatory evidence to be produced and requiring the prosecutor
to subpoena witnesses if it “has reason to believe that other available evidence will
explain away the charge.” That investigative authority, however, is hollow unless the
grand jury is made aware of evidence that might tend to refute guilt. As the Frink court
noted, “[t]he grand jury cannot be expected to call for evidence of which it is kept
ignorant,”22 as was the case with Zurlo’s grand jury. A grand jury is a group of citizens
tasked with making an independent determination about the probability of the accused’s
guilt before the serious consequences of a felony prosecution are imposed upon the
accused.23 It cannot do so when blindfolded.
To restore Frink’s promise to its intended vitality, I believe courts should
require prosecutors to comply with the standards announced by the supreme court: to
present information to grand juries that reasonably tends to negate guilt and to present
evidence in a reasonable and fair manner. If these duties are not honored, as occurred
here, trial courts should strike the tainted indictments and require prosecutors to seek a
21
Frink v. State, 597 P.2d 154, 165 (Alaska 1979).
22
Id. (quoting Johnson v. Superior Court, 539 P.2d 792, 794 (Cal. 1975) (en banc)).
23
Cameron v. State, 171 P.3d 1154, 1156 (Alaska 2007).
– 29 – 2720
valid indictment. If these standards are not enforced, the distorted presentation of
evidence to grand juries and obvious non-compliance with the duty to present
exculpatory evidence will produce no practical incentive for prosecutors to comply nor
any protection for defendants. When this happens, the fear that the grand jury becomes
nothing more than an “administrative arm” of the State becomes reality.24
24
State v. Gieffels, 554 P.2d 460, 465 (Alaska 1976).
– 30 – 2720