Zurlo v. State
| Citation | 506 P.3d 777 |
| Decision Date | 18 February 2022 |
| Docket Number | Court of Appeals No. A-12805 |
| Parties | Chad Alan ZURLO, Appellant, v. STATE of Alaska, Appellee. |
| Court | Court of Appeals of Alaska |
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.
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."
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.
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.
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
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:
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:
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,...
To continue reading
Request your trial