GAMBLE v. STATE, A-8891 (Alaska App. 3-8-2006)

STACY LEE GAMBLE, Appellant, v. STATE OF ALASKA, Appellee.

Court of Appeals No. A-8891.Court of Appeals of Alaska.
March 8, 2006.

Appeal from the Superior Court, Third Judicial District, Kenai, Harold M. Brown, Judge. Trial Court No. 3SW-02-283 CR, 3KN-03-704 CI.

Krista Maciolek, Assistant Public Advocate, Palmer, and Joshua Fink, Public Advocate, Anchorage, for the Appellant.

Terisia K. Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.

Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.

COATS, Chief Judge.

Stacy Lee Gamble filed an application for post-conviction relief, claiming that he had newly-discovered evidence which showed that he was denied due process. Gamble asserted that the State’s primary witness had been pressured to testify by the prosecutor, and he further asserted that this witness had been impaired by medication during her testimony. The State moved to dismiss the application on the ground that Gamble had not shown that the evidence was newly discovered or that the evidence would probably have produced an acquittal in a new trial. Superior Court Judge Harold M. Brown dismissed the application. Gamble appeals to this court. We affirm.

Factual and procedural background

The facts surrounding Gamble’s underlying convictions are set out in Gamble v. State.[fn1] A short summary of these facts is sufficient for the purpose of this appeal.

During the early morning hours of July 25, 2002, Stacy Gamble had an argument with his girlfriend, Lani Sowle. Both Gamble and Sowle were intoxicated. Although the two lived together, the apartment was Sowle’s and she asked Gamble to leave. Sowle went to her bedroom and did not see Gamble depart, but when she awoke later that day, he was gone. The spare key to Sowle’s black Buick Skylark and the car itself were also gone. Sowle called the police and reported her car as stolen.

Subsequently, Gamble was arrested and charged with felony driving while intoxicated, vehicle theft in the first degree, and driving while his license was revoked. A jury convicted Gamble of all three charges. On appeal, this court affirmed Gamble’s convictions.[fn2]

On August 5, 2003, Gamble filed a pro se application for post-conviction relief. Judge Brown appointed counsel for Gamble. Counsel filed an amended post-conviction relief application on Gamble’s behalf, deleting all claims for relief outlined in the original application except for claims related to Sowle’s disability at the time of trial. Specifically, Gamble claimed that he had been denied due process because the prosecutor coerced Sowle’s testimony and failed to inform defense counsel or the court that Sowle was under the influence of prescription narcotics at the time of trial. Gamble contended that he was therefore unable to effectively cross-examine Sowle.

Gamble included Sowle’s affidavit with his amended application. In her affidavit, Sowle stated that the day before Gamble’s trial, she had been released from the hospital after suffering multiple health complications. She stated that during her testimony she was heavily medicated on morphine, antibiotics, and “Elavil”, an anti-depressant. She informed the prosecutor of this fact, but the prosecutor told her not to testify that she had been in the hospital the day before. She stated that she did not think that she told the court or the jury that she was under the influence of medication during her testimony.

The State filed a motion to dismiss the application, claiming that Gamble’s application did not state a prima facie case for relief. The State characterized Gamble’s claim as one of newly-discovered evidence about Sowle’s mental state at the time of trial and/or failure on the part of the prosecutor to disclose his knowledge of Sowle’s impairment. The State argued that Gamble failed to establish that the information was newly-discovered or that there was a reasonable possibility that the newly-discovered evidence would result in an acquittal at a new trial. As support for its argument, the State attached a copy of the trial transcripts as an exhibit to its motion to dismiss. The State argued that the trial transcripts clearly showed that Sowle testified that she was taking morphine and the psychotropic drug “Elavil” at the time of the trial. Sowle had testified that she had just gotten out of the hospital the day before the trial and that her health was not good. Sowle also testified that she was under the influence of a combination of morphine and alcohol at the time of the car theft, and she admitted several times that her memory was adversely affected.

Gamble responded to the State’s motion to dismiss, arguing that the State’s reference to the trial transcript went beyond what was permissible to argue that Gamble’s pleadings did not set out a prima facie case and converted the motion into a motion for summary judgment. Gamble argued that the court should not grant summary judgment because a dispute of material fact existed as to how Sowle’s testimony would have differed had she not been medicated at trial and whether Sowle was coerced into testifying. In response, the State argued that there was no issues of material fact for the court to resolve. The State pointed out that Sowle had testified in Gamble’s trial about the drugs she was taking and how they affected her. Therefore, there was no basis for Gamble to claim this was newly-discovered evidence or that the State prevented Sowle from testifying about her condition. The State also pointed out that Sowle had not claimed in her affidavit that her testimony now would be different than her trial testimony. The State argued that the court should therefore grant summary judgment and dismiss Gamble’s application.

Judge Brown granted the State’s motion and dismissed Gamble’s application “[f]or the reasons advanced by the State in its pleading in support of its Motion to Dismiss[.]” Gamble now appeals.

Why we uphold Judge Brown’s dismissal of Gamble’s application for post-conviction relief

Gamble first challenges the procedure which the superior court followed in dismissing his application. He contends that the superior court erred because it did not give him advance notice of its intent to dismiss his application. But in Tall v.State,[fn3] this court held that a court is required to give an applicant notice of its intent to dismiss only when it is considering dismissing an application without a motion by the State. When the State files a motion to dismiss an application for post-conviction relief, the applicant has notice from the State’s motion of possible deficiencies in the application.[fn4] As long as the court grants the motion to dismiss for the reasons advanced by the State, the court does not have to give additional notice.[fn5]

Gamble next contends that, by referring to the trial transcript in its motion to dismiss, the State converted its motion into a motion for summary judgment. Gamble argues that Judge Brown had no basis for granting a motion for summary judgment. He argues that the court should have allowed him to conduct more discovery; that there were genuine issues of material fact which precluded summary judgment; and that the trial court needed to make a determination of Sowle’s credibility.

Assuming, for purposes of this appeal, that the trial court’s consideration of the trial record converted the State’s motion into a motion for summary judgment, we conclude that the court properly granted summary judgment. Criminal Rule 35.1(f)(3) authorizes a court to grant a motion for summary judgment when “there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” In determining whether there is no genuine issue of material fact, the court is to accept the applicant’s well-pleaded factual allegations as true. The court is to dismiss the application only if the party seeking summary disposition can show the absence of genuine material issues.[fn6] Gamble had notice that the State was seeking summary judgment. In replying to Gamble’s opposition to the motion to dismiss, the State did not contest Gamble’s assertion that the State was moving for summary judgment. The State simply set out why it contended that summary judgment was appropriate. And Gamble did not attempt to amend his application, ask for an opportunity to engage in more discovery, or ask to present more evidence.

An applicant for post-conviction relief who contends that he is entitled to a new trial based on newly-discovered evidence must meet five requirements:

(1) It must appear from the motion that the evidence relied on is, in fact, newly discovered, i.e., discovered after the trial; (2) the motion must allege facts from which the court may infer diligence on the part of the movant; (3) the evidence relied on must not be merely cumulative or impeaching; (4) must be material to the issues involved; and (5) must be such as, on a new trial, would probably produce an acquittal.[fn7]

In Sowle’s affidavit, which Gamble submitted in support of his application for post-conviction relief, Sowle stated that at the time of Gamble’s trial she had been released from the hospital the day before. Sowle said she was heavily medicated and told the prosecutor that she should not testify. She said the prosecutor told her not to say that she had been in the hospital the day before. She also said she did not think that she had told the court or the jury that she was under the influence of medication while she was testifying.

But Sowle’s trial testimony shows that she did testify that she had just gotten out of the hospital and was under the influence of medication. There seems to be little difference between what Sowle said in her affidavit about the medications and what she said at trial. Furthermore, in her affidavit Sowle does not state that she would testify differently than she testified at Gamble’s trial. Therefore, even if Judge Brown accepted everything in Sowle’s affidavit as true, there was no basis to find that Sowle’s proposed testimony would in fact be newly discovered. Furthermore, Sowle’s affidavit did not provide any basis for finding that her testimony, if presented in a new trial, would probably produce an acquittal. Therefore, Judge Brown appropriately granted the State’s motion for summary judgment.

The judgment of the superior court is AFFIRMED.

[fn1] Gamble v. State, Alaska App. Memorandum Opinion and Judgment No. 4965 (Jan. 26, 2005), 2005 WL 158743.

[fn2] Gamble v. State, Memorandum Opinion and Judgment No. 4965 at 7, 2005 WL 158743 at *4.

[fn3] 25 P.3d 704, 707-08 (Alaska App. 2001).

[fn4] Id.

[fn5] Id.

[fn6] Donnelly v. State, 516 P.2d 396, 399 (Alaska 1973).

[fn7] James v. State, 84 P.3d 404, 406 (Alaska 2004) (quotingSalinas v. State, 373 P.2d 512, 514 (Alaska 1962) (citations omitted)).