Opinion
A-13443
10-26-2022
DEEMER SHAWN FRYBERGER, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Emily Jura, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant. Kenneth M. Rosenstein, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Third Judicial District, Palmer, Gregory L. Heath, Judge. Trial Court No. 3PA-17-00265 CR
Appearances: Emily Jura, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.
Kenneth M. Rosenstein, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Allard, Chief Judge, and Harbison and Terrell, Judges.
MEMORANDUM OPINION
HARBISON, Judge.
Deemer Shawn Fryberger was convicted, following a jury trial, of two counts of first-degree sexual abuse of a minor and one count of second-degree sexual abuse of a minor for conduct involving his step-daughter, A.P. He was sentenced to a composite term of 40 years to serve.
AS 11.41.434(a)(2) and AS 11.41.436(a)(3), respectively. Fryberger was found not guilty of two additional counts of first-degree sexual abuse of a minor, and the jury was unable to reach a decision on another count of first-degree sexual abuse of a minor.
On appeal, Fryberger raises numerous, unrelated challenges to his convictions. (He does not challenge his sentence.) Although we agree with Fryberger that certain errors occurred in the course of his trial, for the reasons explained in this opinion, we conclude that each piece of challenged evidence and argument were related to such discrete issues that their erroneous admission, even when considered cumulatively, did not serve to undermine the overall fairness of the trial. We accordingly affirm Fryberger's convictions.
Underlying facts and proceedings
Because each issue Fryberger raises on appeal involves a separate underlying factual background, we will provide a general overview of the evidence first and then discuss the relevant facts in more detail within each section of our analysis.
Fryberger was indicted on five counts of first-degree sexual abuse of a minor and one count of second-degree sexual abuse of a minor based on allegations made by his step-daughter, A.P., between February 2015 and March 2016. Attrial, A.P. told the jury that Fryberger had been in her life since she was three years old, and that she thought of him as a father. A.P. testified that the abuse started just after her fourteenth birthday, when her family moved from Anchorage to Wasilla and she began to be home-schooled. She described that the first incident took place when she was taking a nap in Fryberger's bed and he climbed into bed with her, undressed, and began rubbing his genitals against her backside.
A.P. testified that Fryberger touched her in this way several other times, and eventually it escalated into sexual intercourse. According to A.P., the intercourse occurred once or twice a day for about a year. She then described five specific incidents where Fryberger had sex with her, which formed the basis of the five counts of sexual abuse of a minor in the first degree, and the location where each incident took place: 1) in the basement, 2) in his bedroom, 3) in her bedroom, 4) outside on the front porch, and 5) in their van in a church parking lot.
A.P. explained that, in March 2016, she told a boy she had been talking to online about the sexual abuse. The boy, who lived out of state, called the Alaska State Troopers and made a report. A trooper came out to the Frybergers' home the same day and interviewed A.P. The trooper told Fryberger the nature of the allegations, and A.P. was taken to a children's advocacy center for an additional interview. However, A.P. denied the allegations in both interviews, and there was no further investigation. A.P. testified that after this incident, Fryberger agreed to stop having sex with her.
Six months later, in the fall of 2016, A.P. began attending a youth group at a local church and befriended two individuals there, T.T. and A.T. Within a few weeks of meeting them, she disclosed the sexual abuse to both of them and asked them not to say anything. However, both of them reported the allegations to adults, and A.P. eventually disclosed the abuse to a therapist. She was taken to the children's advocacy center again and, during an interview with the investigating officer, fully disclosed all incidents of abuse.
At trial, in addition to A.P.' s testimony, the State called two troopers-the first officer who responded to the allegations in March 2016 and the investigating officer who conducted the interview in the fall of 2016. The State also offered the testimony of the two friends from the church youth group to whom A.P. disclosed the abuse in the fall of 2016 and testimony from A.P.' s mother - and Fryberger's wife - Clara Fryberger.
Fryberger testified in his own defense and denied all of the allegations. He argued that A.P. made up the accusations, likely so that she would be removed from the home and placed into foster care or live with another relative. In support of his defense, Fryberger called A.P.'s foster mother, her maternal grandmother, and a family friend. Fryberger also sought to challenge A.P.'s credibility by providing testimony from her younger brother, Fryberger's own father (who lived in the house with them), and a defense investigator.
Ultimately, the jury convicted Fryberger of three charges: two counts of first-degree sexual abuse of a minor (for engaging in intercourse in the basement of their home and in his bedroom) and one count of second-degree sexual abuse of a minor (for rubbing his exposed penis on her buttocks over her clothes in his bedroom). The jury found Fryberger not guilty of two counts of first-degree sexual abuse of a minor (for engaging in intercourse outside on the porch and in their van at the church parking lot). The jury could not reach a decision on one count of first-degree sexual abuse of a minor (for engaging in intercourse in A.P.'s bedroom).
This appeal followed.
Fryberger's claim regarding testimony admitted under the "first reporter" exception to the hearsay rule
On appeal, Fryberger argues that the superior court erroneously admitted the testimony of T.T. and A.T. - the two church youth group friends to whom A.P. disclosed the abuse in the fall of 2016-under the first reporter exception to the hearsay rule. For the following reasons, we agree with Fryberger that the admission of T.T.'s and A.T.'s testimony under this exception was error. However, because this testimony regarding A.P.'s disclosures was admissible as evidence of A.P.'s prior consistent statements under Alaska Evidence Rule 801 (d)(1)(B), we affirm the admission of T.T.' s and A.T.'s testimony on this alternative basis.
See McGee v. State, 614 P.2d 800, 805 n. 10 (Alaska 1980) (noting that, regardless of the reasons advanced at trial, an appellate court may affirm a trial court's ruling when independent grounds exist in the record to support the trial court's conclusion as a matter of law).
At trial, A.P. testified that she disclosed Fryberger's sexual abuse to four different people. First, A.P. testified that in March 2016 she told a boy, J.C., whom she met online while playing a video game, about Fryberger's ongoing abuse. A.P. further testified that at some point in the six months following this disclosure, she told A.L., the daughter of family friend Walter Lissner, and they discussed how both of their fathers had been abusive. A.P. also told the jury that in the fall of 2016, she joined a local church youth group and ended up disclosing the abuse to two friends she made there - T.T. and A.T.
Fryberger objected when the State sought to introduce testimony from T.T. and A.T. regarding A.P.' s disclosures of abuse. The State argued that the testimony was properly considered a "first report" of sexual abuse under Greenway v. State, which provides an exception to the hearsay rule for the first time a victim discloses sexual abuse. The State argued that both individuals should be allowed to testify because A.P. disclosed the abuse to T.T. and A.T. within a few days of each other, and their testimony would serve to bolster A.P.'s credibility after it was attacked during cross-examination. Alternatively, the State argued that A.P.'s disclosures to T.T. and A.T. were admissible as prior consistent statements. The superior court agreed with the State and allowed T.T. and A.T. to testify to the fact that A.P. told them about Fryberger's abuse.
Greenway v. State, 626 P.2d 1060 (Alaska 1980).
However, the superior court's conclusion that this testimony was admissible under the "first reporter" exception to the hearsay rule was in error. In creating the exception to the hearsay rule for evidence regarding the first report made by a sexual assault victim, the Alaska Supreme Court explained that evidence that the victim reported the crime "shortly after its commission... tends obviously to indicate the truth of the charge and is corroborative thereof." But the first reporter exception generally applies only to the report that was made first in time.
Id. at 1061 (quoting Torres v. State, 519 P.2d 788, 793 n.9 (Alaska 1974)).
Nitz v. State, 720 P.2d 55,62 (Alaska App. 1986); see also Vandiver v. State, 726 P.2d 195,198 (Alaska App. 1986) (Coats, J., concurring in part and dissenting in part) ("[U]nder the prompt complaint exception, only the first complaint is admissible."); Thompson v. State, 769 P.2d 997, 1001 (Alaska App. 1989) ("[Greenway] is limited to the admission of the complaining witness' first complaint.").
There are two reasons why T.T.'s and A.T.'s testimony regarding A.P.'s disclosures was not admissible under the first reporter exception. First and foremost, T.T. and A.T. were not the first people to whom A.P. disclosed allegations of sexual abuse. A.P. testified that, prior to telling T.T. and A.T. about the abuse in the fall of 2016, she had told J.C. about the abuse in March of 2016 and A.L. sometime between March and September 2016. The superior court noted that the first two disclosures to J.C. and A.L. did not lead to further investigation, in part because A.P. denied the truth of the allegations when asked by law enforcement. But the fact that the disclosures did not lead immediately to criminal charges being brought against Fryberger does not negate their validity as prior disclosures.
Second, A.P. disclosed the sexual abuse to T.T. and A.T. in the fall of 2016, even though the abuse had stopped occurring in March (after A.P.'s first disclosure to J.C). While some delay in reporting may be excusable, we have never before found that an unexplained delay in reporting of six months should be considered the kind of "prompt" or "immediate" report as envisioned by the exception. For these reasons, we conclude that the superior court's decision to admit T.T.'s and A.T.'s testimony under the first reporter exception was erroneous.
See, e.g., Greenway, 626 P.2d at 1061 (finding delay of just over one month excusable); Nitz, 720 P.2d at 63 (finding delay adequately explained given ongoing nature of abuse and threats against making disclosure by abuser).
However, the State argues on appeal that their testimony was otherwise admissible as evidence of A.P.'s prior consistent statements under Evidence Rule 801(d)(1)(B) and that this Court can affirm the superior court's decision to allow the testimony on this independent basis. We agree. Even though the superior court did not explicitly admit T.T.'s and A.T.'s testimony under Rule 801(d)(1)(B), we conclude that there is a sufficient basis in the record for us to determine that the testimony was admissible under this rule.
Evidence Rule 801(d)(1)(B) provides that a statement is not hearsay if the declarant testifies, the statement is consistent with that testimony, and the statement is offered to rebut a suggestion of "recent fabrication or improper influence or motive."
A trial court may admit prior consistent statements under Evidence Rule 801 (d)(1)(B) if it finds that 1) the prior statement is "actually relevant" to rebut an express or implied charge of recent fabrication or improper motive, and 2) the probative value of the statement outweighs its potential for creating unfair prejudice. Nitz, 720 P.2d at 68.
In this case, Fryberger attacked A.P.' s credibility during cross-examination - pointing out inconsistencies in her statements and insinuating that she may have falsified the allegations based on an ulterior motive. Generally, Rule 801 (d)(1)(B) only permits admission of statements made before the alleged motive to fabricate was formed. And in this case, A.P.'s statements to T.T. and A.T. were made after her alleged motive to fabricate had formed.
See, e.g., Lega v. State, 425 P.3d 160, 163-64 (Alaska App. 2018).
However, in Nitz v. State, this Court interpreted Rule 801(d)(1)(B) as also permitting prior consistent statements made after the alleged motive to fabricate has formed to be admitted in certain circumstances. We have explained that these statements, although they post-date the alleged motive for fabrication or improper influence, can nevertheless be admissible if the court concludes that "the circumstances of the prior statement reasonably bolster the credibility of the witness's trial testimony - apart from the mere fact that the prior statement is consistent with the witness's trial testimony." And here, T.T. and A.T. testified that A.P. asked them not to tell anyone about the disclosed abuse-contradicting Fryberger's suggestion that A.P. had a motive to falsify the allegations.
Nitz, 720 P.2d at 68.
Lega, 425 P.3d at 164 (citing Nitz, 720 P.2d at 58; Nusunginya v. State, 730 P.2d 172, 174 (Alaska App. 1986); Thompson, 769 P.2d at 1001).
Although the superior court did not explicitly find that A.P.'s statements to T.T. and A.T. were "actually relevant" to rebut an express or implied charge of fabrication or improper motive, or that the probative value of the statements outweighed their potential for creating unfair prejudice, there is ample basis in the record to conclude that these criteria were met in this case. A.P. testified before the admission of her prior consistent statements, and her testimony was impeached on cross-examination by an implied claim of fabrication. A.P.'s prior statements to T.T. and A.T. were probative of her credibility in that they provided a "factual context within which the jury could judge the truthfulness of her trial testimony." The prior statements were "no more detailed or coherent than [the victim's] own testimony," and neither witness claimed any particular insight or expertise concerning the subject matter at issue - i. e., the witnesses were not likely to be viewed by the jury as any more credible than the victim given their proximity in age.
See Nusunginya, 730 P.2d at 174-75 (finding victim's prior statements admissible even though the trial court did not make specific findings because there was sufficient information in the record to establish that the criteria were met).
Id. at 174.
Id.; cf. Nitz, 720 P.2d at 61 (explaining that testimony of victim's prior consistent statements from adults in positions of authority - counselors, police, parents, etc. - may improperly bolster victim's credibility).
Additionally, the superior court implicitly made factual findings regarding whether T.T.'s and A.T.'s testimony was relevant to A.P.'s credibility. For example, in admitting the testimony, the court stated that it was going to "apply the concept that [A.P.'s] credibility is at stake" and found that A.P.'s disclosure to T.T. and A.T. was "fairly relevant for a variety of reasons." The court also ensured that T.T.'s and A.T.'s testimony would be limited in such a way as to reduce its potential for prejudice. Thus, although the court did not explicitly admit the testimony under the appropriate rule, the court appears to have made relevant factual findings and weighed the necessary considerations before deciding to admit the testimony.
Typically, when a trial court admits testimony of a victim's prior consistent statement made after the motive to fabricate arose, the court is required to give a limiting instruction to the jury that the testimony is not to be considered substantive evidence. Fryberger did not request such an instruction here, and the superior court did not give one. However, the same facts that made the testimony more probative than prejudicial also render the lack of a limiting instruction harmless in this case.
Nusunginya, 730 P.2d at 174-75.
See id. (finding the lack of limiting instruction harmless given the same facts which made the testimony more probative than prejudicial: the fact that the victim testified and had been impeached prior to the admission of the testimony, that the witnesses possessed no particular expertise, and they did not testify in any more detail than the victim herself).
Both T.T. and A.T. testified only that A.P. had disclosed that Fryberger had sexually abused her; they did not testify to any details of the abuse and their testimony was relatively brief. In closing, the prosecutor did mention that "both of them believed [A.P.'s] disclosures," but given that they were both teenagers and peers of A.P., it is unlikely that their belief in the veracity of A.P.'s statements would have a prejudicial effect on the jury (as compared to the belief of an experienced professional or expert). And what the prosecutor really emphasized about T.T.'s and A.T.'s testimony in her closing argument was the fact that A.P. asked them not tell anyone what she had told them. The prosecutor argued that this demonstrated that A.P. did not have the motivation to fabricate that Fryberger claimed: to have false information go public and result in her removal from the home.
See Strumsky v. State, 69 P.3d 499, 504 (Alaska App. 2003) (noting that despite the lack of limiting instruction, the thrust of State's argument was that the out-of-court statements were useful to evaluate credibility).
Thus, we conclude that T.T.'s and A.T.'s testimony regarding A.P.'s disclosures was admissible as evidence of A.P.'s prior consistent statement. And we further conclude that any error in admitting T.T.'s and A.T.'s testimony of A.P.'s prior consistent statements without a limiting instruction did not appreciably affect the jury's verdict.
We acknowledge Fryberger's argument that this Court cannot affirm the admission of T.T.'s and A.T.'s testimony under Rule 801(d)(1)(B) because it requires that we affirm the superior court's ruling based on different factual and discretionary considerations-in violation of the Alaska Supreme Court's decision in Vaska v. State. In Vaska, the supreme court held that an appellate court could not find that testimony was admissible as a prior inconsistent statement (under Evidence Rule 801(d)(1)(A)) where the State advanced that theory for the first time on appeal and therefore did not lay an adequate foundation for its admission under the rule at trial. The court explained that "compliance with the rule's foundational conditions would provide actual notice at trial that the statement in question met the prerequisites for admission under Rule 801(d)(1)(A), [and therefore] the existence of a proper foundation would at a minimum ensure that the accused received fair and timely warning that the rule might be invoked." The court concluded that the State's decision to advance this new legal theory for the first time on appeal exposed Vaska to unfair prejudice by effectively limiting his ability to cross-examine the witness.
Vaska v. State, 135 P.3d 1011 (Alaska 2006).
Id. at 1022.
Id. at 1017.
Id. at 1020.
Here, in contrast, Evidence Rule 801 (d)(1)(B)-governing prior consistent statements - does not have the same foundational requirements as the rule at issue in Vaska, and Fryberger did not suffer any prejudice as a result of the State's decision to advance this legal theory on appeal. While the State in this case did not primarily seek to admit T.T.'s and A.T.'s testimony under Rule 801(d)(1)(B) at Fryberger's trial, it did put Fryberger and the court on notice that, because A.P.'s credibility had been attacked on cross-examination, the State sought to admit T.T.'s and A.T.'s testimony to bolster her credibility. And the superior court addressed this aspect of the testimony by implicitly making findings regarding whether T.T. 's and A.T. 's testimony was relevant to A.P.'s credibility.
Thus, there is no risk that Fryberger's trial strategy would have changed if he had known that T.T.'s and A.T.'s testimony could have been admitted under a different evidentiary rule than the one explicitly discussed in the superior court. Unlike Vaska, Fryberger then had the opportunity to fully cross-examine T.T. and A.T. regarding A.P.'s disclosures, and there is nothing in the record to suggest that Fryberger's cross-examination would have materially changed had the statements been expressly admitted under Rule 801(d)(1)(B). Because the superior court in this case exercised its discretion in admitting T.T.'s and A.T.'s testimony to bolster A.P.'s credibility and found it relevant on that basis, Vaska does not prohibit this Court from finding that the testimony was admissible under Rule 801 (d)(1)(B) as evidence of A.P.' s prior consistent statements. We accordingly reject Fryberger's argument and affirm the admission of T.T.'s and A.T.'s testimony on this independent basis.
See Worthy v. State, 999 P.2d 771, 773-74 (Alaska 2000) ("The admissibility of evidence is largely within the trial court's discretion and its rulings will not be overturned on appeal absent an abuse of its discretion."); Stumpfv. State, 749 P.2d 880, 889 (Alaska App. 1988) (same).
Fryberger's claim regarding the investigating officer's testimony that Clara Fryberger's account corroborated A.P. 's accusations
Investigator Sherry Ferno testified at Fryberger's trial that she worked for the Alaska State Troopers, specializing in crimes against children, and that she conducted the investigation in Fryberger's case - which included interviewing A.P. about the substance of her allegations, as well as her mother, Clara Fryberger, about what she had personally observed between Fryberger and A.P. On appeal, Fryberger argues that Investigator Ferno testified to inadmissible hearsay on redirect examination when she provided her opinion that Clara Fryberger's account corroborated A.P.'s accusations. We first review the facts related to this claim.
In its case in chief, the State called Investigator Ferno to testify. Fryberger's cross-examination of the investigator consisted largely of pointing out investigative practices that were not taken in this case, as well as inconsistencies between A.P.'s statements in her interview with the investigator and her testimony at trial.
On redirect, the State began to ask Investigator Ferno whether Clara Fryberger corroborated A.P.'s allegations of abuse. Fryberger objected that the State was calling for inadmissible hearsay, but the superior court ruled that the investigator could provide her opinion of whether Clara Fryberger's account corroborated any of A.P.'s allegations, without providing specifically what Clara Fryberger had said.
The State rephrased the question to Investigator Ferno a few different ways, asking if the investigator felt that Clara Fryberger had "provided substantial corroboration to [A.P.]'s report" and "without telling me what [Clara Fryberger] said, did she raise a number of red flags?" Each time Fryberger objected, and each time the superior court overruled his objection. The court explained that the questions went "to [Investigator Ferno's] state of mind... and why she made the decisions. . .. Whether it's true or not. . . that's what she believes." The court noted that the investigator's response was not hearsay because it reflected her mental state in the course of her investigation and why she chose not to interview any of A.P.'s other family members.
Fryberger now appeals the superior court's ruling, arguing that Investigator Ferno's testimony about Clara Fryberger's statements was hearsay. The State argues that the testimony was not hearsay and, alternatively, that the court correctly ruled that the testimony was admissible to explain why Investigator Ferno did not pursue different avenues of investigation (after being attacked for insufficient investigation on cross).
Fryberger asserts that the court could not admit Investigator Ferno's testimony about Clara Fryberger's statements for the nonhearsay purpose of explaining the course of her investigation unless it found that it was truly important to understand the reasons why she made certain investigative choices and that the probative value of explaining those reasons outweighed the risk the jury would improperly use the statements for a hearsay purpose - which the court did not do in this case.
See Randall v. State, 2016 WL 3369194, at *3 (Alaska App. June 15, 2016) (unpublished) ("Out-of-court statements made to a police officer will sometimes tend to show the officer's state of mind, or will sometimes tend to show why the officer did or did not undertake particular investigative actions. But before a trial judge allows either the State or the defense to introduce out-of-court statements to prove 'the course of the investigation', the judge must be convinced that the course of the investigation is itself truly relevant."); Lino v. State, 2018 WL 798545, at *4-5 (Alaska App. Feb. 7, 2018) (unpublished) (concluding that police officer testimony about content of informant's tip was improperly admitted to show officer's "course of the investigation").
We question whether Investigator Ferno's testimony was hearsay, given that she did not testify as to the content of any of Clara Fryberger's statements and her testimony was not introduced for the truth of the matter asserted. But to the extent that it was hearsay, we conclude that the court's admission of Investigator Ferno's testimony regarding Clara Fryberger's statements was harmless.
The jury was able to hear testimony directly from Clara Fryberger herself at the trial and therefore could observe her demeanor and make its own determination about Clara Fryberger's credibility. Investigator Ferno also testified only briefly on the subject. She did not discuss what Clara Fryberger said that she believed corroborated A.P.'s allegations, and instead Clara Fryberger herself testified as to what she did or did not observe between A.P. and Fryberger. A.P. also testified extensively and in great detail about the alleged acts of abuse.
Rather, Investigator Ferno's testimony appears more likely to be improper opinion testimony - characterizing Clara Fryberger's statements as raising "red flags" and expressing her belief that Clara Fryberger's interview corroborated A.P.'s allegations. However, for the reasons just provided, we conclude that any error in the superior court's admission of the investigator's opinion about Clara Fryberger's statements did not appreciably affect the jury's verdict.
See Alaska R. Evid. 403, 701.
Cf. Lino, 2018 WL 798545, at *5-6 (finding erroneously admitted out-of-court statement did not affect outcome of trial where testimony was brief, prosecutor did not misuse the evidence during closing argument, and other evidence was overwhelming).
Fryberger's claim regarding the evidence presented and remarks made about Fryberger 's attorneys
Fryberger claims that the State used the exercise of his constitutional right to counsel against him at trial. His claim has two components: 1) the State repeatedly solicited evidence that one of Fryberger's attorneys was present during the execution of a search warrant at his house, and the State used this evidence in closing to suggest that Fryberger obstructed law enforcement's investigation and potentially attempted to destroy or conceal evidence in his home; and 2) the prosecutor improperly argued during closing that Fryberger's trial attorney was engaging in theatrics and tactics designed to "intimidate a teenage girl" rather than "get to the truth."
Fryberger acknowledges that he did not make a contemporaneous objection to this evidence or these remarks at trial, and therefore he must show plain error on appeal. We have reviewed the record, and we conclude that the superior court did not err in failing to sua sponte strike the State's questioning and closing remarks.
See Adams v. State, 261 P.3d 758, 773-74 (Alaska 2011).
Fryberger also argues that the superior court's error was structural in nature due to the violation of Fryberger's constitutional right to counsel. We agree with Fryberger that the complete denial of the right to counsel is a structural error, but we have never before held that a prosecutor's improper comments about a defense attorney constituted a complete denial of counsel. We therefore decline to view any error committed by the superior court regarding the references to Fryberger's attorney in this case as structural.
Fryberger asserts that the State elicited improper testimony about the presence of one of Fryberger's attorneys during Investigator Ferno's execution of the search warrant at his house. But this evidence was extremely limited; only two witnesses testified regarding the attorney's presence during the search warrant - Investigator Ferno and Fryberger himself.
First, Investigator Ferno testified regarding the steps she took in her investigation of the case. This included executing a search warrant to take photographs of the Frybergers' house, and Investigator Ferno testified that Clara Fryberger, Fryberger's parents, and one of Fryberger's attorneys were all present during the search.
Fryberger's trial attorney cross-examined Investigator Ferno about what she did not do during that investigation - namely, collect DNA evidence, interview other residents of the house who were present, and search any electronic devices. On redirect, Investigator Ferno reiterated that the search warrant was only to take photographs of the house, not to collect any other evidence, and that Clara Fryberger, Fryberger's parents, and one of Fryberger's attorneys were all present when she executed the warrant. The prosecutor then asked if the attorney accompanied her throughout the house while she was taking photos. Investigator Ferno was not sure but believed that the attorney had accompanied her.
Second, during the State's cross-examination of Fryberger himself, Fryberger testified that Clara had told him about the search warrant and he informed his lawyer in his child custody case-who sent someone to be present during its execution. Fryberger asked the prosecutor, "Was it supposed to be a secret?" and the prosecutor responded, "Search warrants generally are."
These brief references to Fryberger's attorney's presence during the execution of the search warrant to take photographs did not infringe on Fryberger's constitutional right to counsel. Fryberger knew that one of his attorneys was present during the search, and he did not request a protective order from the court to prevent the State from mentioning this fact during the trial. And Fryberger only objected once, on different grounds, arguing that the State's question to the investigator exceeded the scope of cross-examination. The court overruled Fryberger's obj ection, agreeing with the State that the question about Fryberger's attorney's presence was in response to Fryberger's inquiry into why the investigator did not interview all of the family members that were present at the time of the search.
Given Fryberger's limited objection, the brevity of the testimony, and the context in which it arose, we do not see an obvious error in the superior court's decision to allow the testimony about Fryberger's attorney's presence at the search warrant execution.
See Adams, 261 P.3d at 773 (holding that, to establish plain error, "the error must be obvious, meaning that it should have been apparent to any competent judge or attorney").
The more meritorious aspect of Fryberger's claim relates to the State's mention of the attorney's presence during its closing argument. The prosecutor referenced the fact that Clara Fryberger had tipped Fryberger off about when the search warrant was to take place, and then she argued:
And we know that when his lawyer shows up at the search warrant. And he said pretty defiantly - well, are those supposed to be secret? Well, yeah. Investigator Ferno told you it was, like she told Clara. She didn't tell anybody else. It was supposed to be a secret because if he knows, he can go in the house and change stuff or get rid of things. And so he had access to the house and knowledge that a search warrant was executed. ... So when the defense stands up and says the state should have gotten X, Y and Z - we could have gotten what he left, if you even think it's relevant that his own DNA is in his house.
Fryberger argues that this comment was improper, and cites to a case from the Fifth Circuit, United States v. McDonald, for support of his claim. We agree with Fryberger that the prosecutor's comment was inappropriate, but we conclude that the error was harmless in this case.
United States v. McDonald, 620 F.2d 559 (5th Cir. 1980).
In McDonald, the defendant was charged with dealing in counterfeit currency but denied involvement. McDonald's defense at trial rested heavily on the absence of any physical evidence in his home. The court found that the prosecutor improperly implied that the defendant's attorney's presence during the execution of a search warrant at his house meant that the defendant had time to dispose of any incriminating evidence.
Id. at 560-62, 564.
Fryberger's case can be distinguished from McDonald because the thrust of Fryberger's defense was that A.P. had fabricated the allegations. In investigating A.P.'s accusations, the State did not seek to collect any physical evidence from Fryberger's home (the search warrant was only for the investigator to take pictures) nor did the State interview any of the other residents. And it was this lack of investigation that Fryberger attacked at his trial through cross-examination of the investigating trooper and in his closing argument.
Thus, as the State points out on appeal, the evidence that one of Fryberger's attorneys was present during the search of his home and the prosecutor's comment during closing argument that Fryberger had advance knowledge of the search warrant did not "strike at the jugular" of Fryberger's defense as it did in McDonald. And the State's evidence in this case did not hinge on whether or not there was corroborating physical evidence at Fryberger's home - indeed, the search warrant did not even authorize the investigator to collect any. Given that the prosecutor's remark was brief and in the context of a much larger closing argument that did not center around Fryberger's actions during the investigation, we conclude that the prosecutor's improper comment about the attorney's presence and Fryberger's knowledge of the search warrant was harmless.
Id. at 563-64 (finding that "the implication that [the defendant] had destroyed incriminating evidence struck at the jugular of his exculpatory story, the essence of which was that there was no evidence to destroy" and that "comments that penalize a defendant for the exercise of his right to counsel and that also strike at the core of his defense cannot be considered harmless error").
See Adams, 261 P.3d at 773 (holding that, to establish plain error, "the error must be prejudicial"). We need not decide whether the prosecutor's improper argument was a constitutional violation, which "will be prejudicial unless the State proves that it was harmless beyond a reasonable doubt," or an error that was not constitutional in nature, which "will be prejudicial if the defendant proves that there is a reasonable probability that it affected the outcome of the proceeding," because we conclude that the improper argument was not prejudicial under either standard. Id.
Finally, Fryberger claims that the prosecutor improperly disparaged Fryberger's trial counsel during her closing remarks to the jury. In her rebuttal argument, the prosecutor told the jury:
[Y]ou can decide whether or not the defense theatrics, all of these objections and talking over top of witnesses and over top of me and over top of the judge, is designed to get to the truth or if it's designed to intimidate a teenage girl that's here to testify, or confuse a teenage girl that's here to testify about some really difficult things.
On appeal, the State admits that this statement was "problematic," but asserts that any error was harmless given the context of an otherwise proper closing argument. We agree.
The prosecutor's comment, asking the jury to decide whether the "defense theatrics" were "designed to get to the truth" or to "intimidate ... or confuse a teenage girl," was obviously improper. But it was a singular, brief statement made during the State's rebuttal argument. The prosecutor did not repeat this comment or return to it as a theme in her summation to the jury, and immediately after this statement, the prosecutor told the jurors that it was their job "to decide who you think is being truthful" and referred the jury explicitly to the instruction regarding the evaluation of witness credibility. Largely, the prosecutor argued the evidence to the jury in a proper manner - building up the credibility of A.P.'s testimony and pointing out the incredibility of Fryberger's proposed motivations for A.P. to have made false accusations.
See Hess v. State, 435 P.3d 876, 881 (Alaska 2018) (holding that a prosecutor is prohibited from asking a jury to reject a defense, "not because the defense lacked evidentiary support, but instead because of . . . [their] unsupported accusation that defense attorneys commonly resort to underhanded or misleading tactics").
Cf. id. at 882 (noting that the prosecutor made several separate comments attacking the defense in both his initial closing argument and again during rebuttal).
See Rossiter v. State, 404 P.3d 223, 226 (Alaska App. 2017) (noting the distinction between permissible prosecutorial argument that a defendant's version of events is not credible and impermissible argument that disparages the legitimacy of the legal theory or defense).
Thus, given that Fryberger did not object to the prosecutor's comment at trial and the lack of prejudice that resulted, we conclude that any error in allowing the statement to be made was harmless. Considered individually or collectively, we see no violation of Fryberger's constitutional right to counsel from the introduction of evidence or comments made about Fryberger's attorneys. We therefore reject Fryberger's claim of plain error.
See Hauge v. State, 2019 WL 4464683, at *4 (Alaska App. Sept. 18, 2019) (unpublished) (finding harmless error where prosecutor went a step too far, describing the defense's approach as a tactic, but the two remarks were brief and made in the context of a much larger and unobjectionable closing argument).
Fryberger's claim regarding the questioning of a defense witness about his failure to contact law enforcement
In his defense, Fryberger called his friend Walter Lissner to the stand. Lissner, who had met Fryberger through a church in Anchorage and who had a daughter close in age to A.P., testified regarding his opinion of Fryberger's character. On appeal, Fryberger argues that the State improperly questioned Lissner about his failure to provide exculpatory information to law enforcement pretrial and that this violation requires reversal.
The parties dispute whether Fryberger's argument on appeal is preserved, given that he objected on different grounds to this line of questioning in the superior court. We do not need to decide whether Fryberger's claim is preserved, however, because we conclude that any error in allowing the State's questioning was harmless.
At trial, Lissner explained to the jury how his family and the Frybergers had stayed in touch after the Frybergers moved to Wasilla, and he described how his daughter, A.L., and A.P. were the "best of friends." Lissner testified that he trusted Fryberger completely and that he never saw anything inappropriate between him and A.P. Lissner also explained that A.L. had made unfounded accusations against him in the past and it had resulted in ongoing child custody disputes.
On cross-examination, Lissner told the jury that when he heard that A.P. had made allegations of abuse against Fryberger, he guessed that A.L. had told her how to do that. The prosecutor then engaged in the following line of questioning:
Prosecutor. When did you believe that you had important information to provide to the court?
Lissner. I had a hunch way back when, when my children mentioned it and when the allegations were made... right off the bat.
Prosecutor. So when did you call the Troopers or OCS and tell them about this hunch?
Lissner. I contacted his court-appointed attorney and that is where I went... before he was incarcerated.
Prosecutor. You never called law enforcement?
Lissner. No.
Prosecutor. Why not?
Lissner. Because I don't believe the allegations are true.
Prosecutor. Wouldn't you want law enforcement to investigate the hunch that you had?
Lissner. They did. My understanding is that they did, and -
Prosecutor. Well, did they come out and talk to your kids?
Lissner. Nobody did.
Prosecutor. Did they come out and talk to you?
Lissner. Nobody did.
Prosecutor. How would they know if you didn't tell them, I have this really important information that [A.P.]'s concocted this story? How would they know that you existed if you didn't bring it to them?
Fryberger objected that this line of questioning improperly shifted the burden, but the superior court disagreed. On appeal, Fryberger argues that the questioning violated Alaska Evidence Rule 403 - in that it was improperly admitted without necessary foundational requirements and that it was more prejudicial than probative.
We agree with Fryberger that the State's inquiry into why Lissner had not contacted the police prior to trial contained very little probative value. While this Court has not directly discussed when a witness's pretrial silence can be used to impeach their testimony, we have "expressed distrust of silence as probative evidence of guilt" in the context of evaluating whether a defendant's pretrial silence was admissible at trial.
Silvernail v. State, 777 P.2d 1169, 1175 (Alaska App. 1989).
This Court has explained that any probative value of a defendant's pretrial silence is premised on an inference that it would have been "natural under the circumstances" for an innocent person to speak up or contact law enforcement. But we have noted that there are number of other reasons why a defendant may choose not to say something in certain circumstances - including that a "suspect may believe that [they have] committed no crime and therefore [have] no call to explain [themself] to the police." Thus, the probative value of a defendant's pretrial silence must be weighed against its potential for prejudice prior to determining its admissibility.
Id. at 1176.
Id. at 1177 (quoting Farley v. State, 717 P.2d 111, 112 (Okla. Crim. App. 1986)).
Id. at 1176.
Because the probative value of a defense witness's pretrial silence is based upon the same inference - that the witness failed to contact law enforcement earlier under circumstances where it would have been natural for them to do so - the same foundational requirements must be met prior to the admission of such impeachment evidence. Just as there are a number of reasons why a defendant may be wary of speaking with law enforcement, there are many potential reasons why a defense witness similarly would not volunteer information to the police. Defense witnesses may fear that police would not believe what they have to say or they may distrust the police; they may not know how to contact the relevant law enforcement office or lack the assertiveness required to do so; or they may not realize the significance of the information they possess. Finally, when a witness has given defense counsel their statement pretrial, they may reasonably assume that they have provided the relevant information to a professional who is better positioned to evaluate what to do with it and therefore they do not need to also report the same information to the State.
See, e.g., Jenkins v. Anderson, 447 U.S. 231,239 (1980) (noting that at common law witnesses could be "impeached by their previous failure to state a fact in circumstances in which that fact naturally would have been asserted"); Commonwealth v. Hart, 914 N.E.2d 904, 911 (Mass. 2009) (holding that the relevance of impeachment by silence of a defense witness hinges on a demonstration that it would be "the natural response of a person in possession of exculpatory information ... to come forward in order to avoid a mistaken prosecution of a relative or a friend" (citing Commonwealth v. Brown, 416 N.E.2d 218, 224 (Mass. App. 1981))).
See Hart, 914 N.E.2d at 911 (reasoning that there are circumstances where it is not natural for a witness to come forward and provide information, such as when "the witness does not realize she possesses exculpatory information, when she thinks that her information will not affect the decision to prosecute, or when she does not know how to furnish such information to law enforcement").
See United States v. Young, 463 F.2d 934,938 (D.C.Cir. 1972) ("[The witness] might reasonably presume that it was sufficient for him to relate his knowledge to the attorney retained or appointed to represent defendant."); People v. Wallace, 772 N.E.2d 785,793 (Ill. App. 2002) ("Under these circumstances, where [the witness] was already in contact with defense lawyers, a reasonable person would not be required to seek out the State and share this information with the State as well.").
Meanwhile, highlighting that a defense witness did not provide information to the police runs the risk of suggesting to the jury that it should give more weight to evidence obtained in the police investigation than other evidence in the trial and that evidence presented by the State is more trustworthy than evidence presented by the defense.
See People v. Hamlin, 395 N.Y.S.2d 679, 680-81 (N.Y.App.Div. 1977) ("[N]o stigma should be attached to the testimony of a witness on a crucial issue solely because it is rendered for one side rather than the other."); Silvernail, 777 P.2d at 1175 (explaining that "low probative value of silence" can come with "concomitantly high potential for prejudice").
Thus, a defense witness's failure to provide information to law enforcement prior to trial is only more probative than prejudicial if it would have been reasonable to expect them to notify the police under the circumstances.
In this case, there is no reason that Lissner would have been expected to contact the police with the information he had prior to trial. Lissner did not possess concrete evidence tending to negate Fryberger's guilt, but rather he held a "hunch" or "guess" that supported Fryberger's defense (that A.L. had inspired A.P. to make a false accusation in order to get removed from the house). Further, Lissner provided what information he did have to Fryberger's defense counsel prior to trial, and he made it clear that he was willing to be contacted by any relevant party.
Under these circumstances, it would not have been natural for Lissner to reach out and contact law enforcement. As he testified at trial, Lissner did not contact the police because he did not believe the allegations were true. Given that the only information he had was based on a "hunch" that his daughter may have sparked the idea for A.P.'s false allegation, that he told this information to Fryberger's attorney, and that the police never contacted or interviewed him or his daughter, the fact that he did not volunteer this information to the police had very little probative value. The superior court therefore erred in allowing the State to question Lissner about his pretrial silence.
However, although the State's questioning of Lissner as to his silence was more prejudicial than probative, this questioning was not particularly harmful when considered in the context of the case as a whole. Lissner's testimony regarding his "hunch" that his daughter might have given A.P. the idea to make a false accusation was brief and occurred only during cross-examination. And there was not strong evidentiary support for this aspect of Fryberger's defense (that A.L. had informed A.P. how to make a false report in order to leave the home), given the contradictory testimony presented: A.L. never testified herself, and A.P. testified that she was not close with A.L. and that she did not know that A.L. had reported abuse against her father or was taken into foster care until after she had accused Fryberger of the abuse.
Finally, we note that the jury was properly instructed that the evaluation of witness credibility was their sole responsibility, and a reasonable jury would not likely hold Lissner's failure to contact law enforcement about such a "hunch" as determinative of the truthfulness of his testimony. Thus, we conclude that the superior court's error in admitting this line of questioning did not appreciably affect the jury's verdict and therefore was harmless.
Fryberger's request for independent review of A.P. 's treatment records
On appeal, Fryberger requests that this Court independently review A.P.' s mental health treatment records from the time of her initial disclosure to her counselor until trial to determine if the superior court erred when it declined to disclose them to the defense. The State does not oppose this request.
The superior court found that while these records contained documentation of A.P.'s accusation of sexual abuse, none of them were sufficiently relevant or material to the case to warrant disclosure. We have independently reviewed the treatment records, and we conclude that the superior court did not err in its decision not to disclose them.
See Kowalski v. State, 426 P.3d 1148, 1156 (Alaska App. 2018) (independently reviewing records reviewed in camera by the trial court at defendant's request).
Fryberger's claim of cumulative error
Finally, Fryberger argues that the cumulative effect of the errors committed by the superior court merits reversal of his convictions, even if each individual error was harmless. Cumulative error requires reversal "when the impact of errors at trial was so prejudicial that the defendant was deprived of a fair trial." We have said that the doctrine of cumulative error is really "a doctrine of cumulative prejudice," and that "[i]t applies only when real errors have been identified and the remaining question is whether these errors, in combination, were so prejudicial as to undermine the trustworthiness of the underlying judgement (even though each error, taken individually, might not require reversal)."
Drumbarger v. State, 716 P.2d 6, 16 (Alaska App. 1986).
State v. Savo, 108 P.3d 903, 916 (Alaska App. 2005).
In this case, we found that the superior court did commit some errors during Fryberger's trial. But each error was related to a discrete, narrow issue: testimony improperly admitted under the "first reporter" exception to the hearsay rule; testimony that the investigating officer believed a witness's statements corroborated the victim's accusations; the prosecutor's improper statements during closing; and testimony erroneously admitted regarding one defense witness's failure to alert law enforcement to his "hunch" that the victim's accusations were falsified. We have explained why each of these errors was harmless in this case, and after reviewing the entire record, for those same reasons we do not believe that these errors combined in such a way as to deprive Fryberger of a fair trial or "undermine the trustworthiness of the underlying judgement." We therefore reject his claim of cumulative error.
Conclusion
For the reasons provided in this opinion, we AFFIRM the judgment of the superior court.