Opinion
Court of Appeals No. A-11690 No. 6318
04-27-2016
ZACHARY LAWRENCE TORRES, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Cynthia Strout, Attorney at Law, Anchorage, for the Appellant. Elizabeth T. Burke, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 3AN-11-8909 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Larry D. Card, Judge. Appearances: Cynthia Strout, Attorney at Law, Anchorage, for the Appellant. Elizabeth T. Burke, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge SUDDOCK.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Appellant Zachary Lawrence Torres was convicted of first- and fourth-degree assault following a downtown Anchorage street brawl. At his trial, he subpoenaed Eric Nebreja, who had been convicted (pursuant to a plea agreement) for participating in the same assault that Torres was charged with. But when Nebreja's attorney asserted Nebreja's Fifth Amendment privilege not to testify, the judge upheld the claim of privilege and excused Nebreja.
Torres now appeals his conviction for first-degree assault (but not his misdemeanor assault conviction), arguing that because Nebreja's conviction was already final, he no longer risked self-incrimination if he testified about his participation in that crime. We find that the judge erred in upholding Nebreja's claim of privilege, that Torres did not abandon this claim of error, and that the State has not shown the error to be harmless beyond a reasonable doubt. We therefore reverse Torres's first-degree assault conviction.
Facts and proceedings
Around midnight on August 5, 2011, a group of friends that included Andre Registe, Joseph Lyman, Joseph's brother Matthew Lyman, and Meredith Basadaras left the F Street Station bar and restaurant in downtown Anchorage and walked toward a parking lot where a friend was waiting. As they passed another downtown bar, they encountered a second group comprised of Zachary Torres, Eric Nebreja, and two other men. Nebreja apparently overheard Registe talking and thought Registe had addressed him. The two exchanged words, and Registe declined Nebreja's invitation to fight. Registe may have insulted Nebreja before turning to walk away.
Then Torres (from Nebreja's group) caught up with Registe and challenged him to fight. According to Registe's testimony, Torres nudged him, and Registe pushed back. Torres punched Registe and the two began fighting. Nebreja quickly joined the affray.
Accounts at trial diverged on what happened next. Joseph Lyman had been standing nearby. Nebreja apparently struck Lyman, knocking him out. According to most witnesses at trial, Nebreja then stomped on Lyman's head, fracturing his jaw and his orbital socket. But some testimony suggested that Torres also might have stomped on Lyman or otherwise assisted Nebreja in assaulting him.
The State charged Torres with first- and second-degree assault for assaulting Lyman. The State also charged Torres with fourth-degree assault for assaulting Registe. He does not challenge that conviction.
AS 11.41.200(a) and AS 11.41.210(a), respectively.
AS 11.41.230(a).
After the State rested its case-in-chief against Torres, Nebreja, who had been subpoenaed by the defense, appeared in court with an attorney. Nebreja's attorney told the court that Nebreja was on felony probation for assaulting Lyman. The attorney theorized that, were Nebreja to testify, a probation officer might invoke an unjustified reason to file a petition to revoke Nebreja's probation. Nebreja's attorney also theorized that Nebreja's probation might be revoked for some undisclosed act Nebreja committed prior to the plea agreement, based on an undisclosed legal theory that the attorney thought was meritless.
In response to this vague and convoluted theory of potential criminal exposure, the trial judge ruled that Nebreja's claim of privilege was valid and that he could not be compelled to testify.
Torres's attorney called no witnesses. The jury convicted Torres of first-degree assault upon Lyman, and fourth-degree assault upon Registe. This appeal of Torres's first-degree assault conviction followed.
Why the judge erred in upholding the claim of privilege
As a general rule, a conviction that is not appealed, or that is affirmed on appeal, terminates a defendant's right to remain silent about the facts of the underlying crime. Thus Nebreja, as a probationer with no pending appeal, retained no privilege against self-incrimination regarding the facts underlying his conviction, absent a showing by him of potential criminal liability:
Mitchell v. United States, 526 U.S. 314, 326-27 (1999).
As expressly recognized in [the United States Supreme Court case] Minnesota v. Murphy, a probationer may be questioned concerning matters relevant to probation that pose "no realistic threat of incrimination in a separate criminal proceeding." The burden of establishing a hazard of incrimination is on the claimant.Nebreja's attorney argued vaguely that Nebreja's probation officer might somehow cause trouble for him were he to testify. But this fell far short of establishing a "realistic threat of incrimination in a separate criminal proceeding." Because Nebreja failed to establish a valid claim of privilege, the judge erred in releasing him from Torres's subpoena for trial testimony.
Gyles v. State, 901 P.2d 1143, 1148 (Alaska App. 1995) (citing Minnesota v. Murphy, 465 U.S. 420, 435 n.7 (1984)).
See Murphy, 465 U.S. at 435 n.7.
Why we conclude Torres did not waive this claim of error
Immediately after the trial judge upheld Nebreja's claim of privilege, the prosecutor informed the judge that he intended to call his office to confer on the matter. After consulting with a colleague, the prosecutor informed the judge that, pursuant to Alaska's immunity statute, the court was required to notify the Attorney General of its ruling, so that the Attorney General or his designee could decide whether to confer transactional immunity on Nebreja. But the prosecutor informed the judge that the district attorney's office would not support a grant of immunity.
AS 12.50.101.
Alaska Statute 12.50.101(e)-(h) governs court procedure when a witness called by the defense asserts the privilege against self-incrimination. The court is directed to hold an in camera hearing to determine whether the claim of privilege is valid — whether there is "a real or substantial danger that the testimony or other information to be compelled would support a conviction or would furnish a link in the chain of evidence leading to conviction for a crime." If the court finds that the witness's claim of privilege is valid, it must notify the Attorney General or his designee tasked with making immunity decisions. The Attorney General or his designee then decides whether to grant immunity to the witness.
AS 12.50.101(f), (g).
AS 12.50.101(h).
Id.
After the prosecutor described this process to the judge, Torres's attorney said that since the prosecutor would not support a grant of immunity, he saw no point in pursuing such an application. Nevertheless, the defense attorney stated that he was not waiving his claim of error; he told the judge, "[O]bviously, I didn't get my witness. I wanted my witness." The judge responded, "You have a right to appeal that issue if your client were convicted[.]" But the judge also told the defense attorney, "[T]o compel [Nebreja's testimony over] what I have determined to be a Fifth Amendment privilege, ... we have to go through that [immunity application] process. Just like if it were the State calling [the witness]. ... So if you want the witness, I have to go through the same process." Torres's attorney replied, "Let's go forward, and I reserve the issue for appeal."
On appeal, the State argues that when Torres's attorney declined the judge's offer to invoke the statutory immunity procedure, Torres essentially abandoned his attempt to call Nebreja, and so he did not preserve his claim of error regarding Nebreja's assertion of privilege.
But the State's theory of waiver is based on a questionable interpretation of the immunity statute, AS 12.50.101(e)-(h). According to the State, this statute authorized the Attorney General (or his designee) to apprise the judge of the error in his ruling ("that there was no identifiable crime or offense to which immunity could be applied"), thus essentially impelling the judge to re-evaluate his ruling regarding Nebreja's Fifth Amendment privilege. The State further argues that even if the trial judge had not corrected his error, the Attorney General inevitably would have granted immunity to Nebreja — because "the State would have had nothing to lose by granting 'immunity' to remove a non-existent risk of incrimination."
Thus, the State argues, if Torres's attorney had demanded that an application for immunity be presented to the Attorney General, Nebreja would in the end have testified — either because the Attorney General would have convinced the trial judge to correct his error, or because the Attorney General would have granted immunity to Nebreja.
We disagree with the State's assertion that the immunity procedures set forth in AS 12.50.101(e)-(h) effectively serve as an interlocutory (i.e., a mid-trial) method of identifying and correcting judicial error. No provision of the statute authorizes the Attorney General (or his designee) to question or to seek reconsideration of the judge's ruling regarding whether a witness has a valid privilege against self-incrimination.
Nor do we agree with the State that the Attorney General inevitably would have granted immunity to Nebreja if only he had asked. Even if we assume that the Attorney General would have shared the State's current view that Nebreja faced no risk of self-incrimination for his testimony — or even if we assume that the Attorney General simply would have been willing to take the risk that Nebreja's testimony might reveal other crimes (crimes for which Nebreja would then be immunized) — this does not mean that the Attorney General would have granted immunity to Nebreja.
As we explained in Cogdill v. State, the government's decision to grant or withhold immunity involves two potential interests: (1) the interest in prosecuting the witness for crimes revealed by their testimony; and (2) the interest in preventing an apparent accomplice from providing collusive testimony for the sole purpose of absolving the defendant of liability for their participation in the criminal scheme. In such situations, we noted, "freely granting immunity would likely engender collusion and witness-tampering."
Cogdill v. State, 101 P.3d 632, 636 (Alaska App. 2004).
Id.
Here, concern for ensuring the integrity of testimony at Torres's trial would likely have influenced the Attorney General's decision to grant or withhold immunity for Nebreja's testimony. Torres and Nebreja were friends. Both men were involved in the altercation with Andre Registe and Joseph Lyman. And Torres wished to call Nebreja to the stand, apparently to offer testimony that would tend to shift responsibility away from Torres. In these circumstances, the Attorney General would have a valid reason for declining to grant immunity to Nebreja — even if the State had no interest in pursuing further criminal prosecution of Nebreja.
We therefore reject the State's argument that Torres waived his claim of error by not demanding that an application for immunity be presented to the Attorney General.
The State has not established that the judge's mistaken privilege ruling was harmless beyond a reasonable doubt
The State argues that any error was harmless because it did not appreciably affect the outcome of the trial. That is our standard of review for non-constitutional error. But the right of a defendant to call defense witnesses is a fundamental aspect of due process. When constitutional error prejudices a defendant's interests, the State bears the burden of showing that the error was harmless beyond a reasonable doubt.
Love v. State, 457 P.2d 622, 631 (Alaska 1969).
See Brandon v. Dep't of Corrections, 865 P.2d 87, 90 (Alaska 1993).
Adams v. State, 261 P.3d 758, 771 (Alaska 2011). --------
The State argues that any error by the court in upholding Nebreja's claim of privilege was harmless because "overwhelming testimony showed that Nebreja, not Torres, assaulted Lyman [and] Torres was almost certainly convicted of the assaults because the jury concluded that he was guilty as an accomplice." The State's argument is misguided for two reasons. First, it assumes that the State's accomplice liability theory was ironclad, such that Nebreja's testimony would have no impact on the matter.
The second problem with the State's harmless error argument is that it does not accurately reflect how the prosecutor actually tried his case. Far from conceding that Nebreja alone assaulted Lyman by stomping on his head, the prosecutor argued to the jury that Torres also stomped on the unconscious Lyman:
Officer Parnell says that he sees an individual the size, the height, the weight of [Torres] near the guy on the ground, when he rolls up, and he saw his leg coming back [for a kick]. ... I mean his head is not a grape press. ... They were trying to stomp it into the concrete. ... [Torres] did it himself, if you believe Meredith Basadaras, if you believe Officer Parnell[.]The prosecutor argued that Torres was guilty both as a principal for beating Lyman and as an accomplice to Nebreja's assault on Lyman. And he informed the jurors that they need not adopt either theory with unanimity in order to convict.
Given the posture of the case, Nebreja was clearly an important witness regarding central issues of disputed fact. We acknowledge that we have no definitive offer of proof as to what Nebreja would have said. But the effect of this uncertainty falls on the State, which bears the burden of proof. On this record we are unable to find that the State has borne its burden of proving that the judge's privilege error was harmless beyond a reasonable doubt.
Conclusion
We REVERSE Torres's judgment of conviction for first-degree assault and REMAND for a new trial on this count.