Opinion
Court of Appeals No. A-10206.
May 5, 2010.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Robert B. Downes, Judge. Trial Court No. 4FA-05-3269 CR.
Sharon Barr, Assistant Public Defender, Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
David Sun Do Hesch moved to dismiss his assault and kidnapping charges when a planned defense witness, Turhan Ray, invoked the privilege against self-incrimination and the State refused to grant Ray immunity from prosecution. We conclude that the trial judge was not required to dismiss the charges for two reasons: (1) because it was not apparent that Ray's testimony would have led to an acquittal, and (2) because the State had a valid reason to deny Ray immunity. In addition, the trial judge's failure to instruct the jury to draw no inference from Ray's absence was not plain error because Ray's absence did not appreciably affect the jury's decision.
Background
Hesch was indicted for assault in the first degree and kidnapping of Polly Andrews, and fourth-degree misconduct involving a controlled substance. At trial, Andrews testified that she first met Hesch when she was having car trouble and he offered her a ride. After Hesch picked Andrews up, they collected Hesch's friend, Turhan Ray, and proceeded to purchase and use cocaine. A few days later Hesch called Andrews and accused her of reporting Ray to state social workers.
AS 11.41.200(a)(1).
AS 11.41.300(a)(1)(C) and (2)(B).
AS 11.71.040.
Within the next day or so, Hesch convinced Andrews to go for a ride. Hesch stopped at a closed restaurant where he was apparently employed. Hesch invited Andrews to use some cocaine in the bathroom. Before Andrews realized what Hesch was doing, he stabbed her in the chest, yelling that Andrews "ratted out [his] boy." Hesch then shut Andrews in a storage room. Andrews decided that, in order to calm Hesch, she would pretend like everything was fine.
They left the restaurant and Hesch ordered Andrews to get in the trunk of his car, but she refused, promising not to run or scream. Hesch then drove Andrews to a wooded area. He asked Andrews what he could do to ensure that she would not go to the police. Hesch offered to give Andrews some money and cocaine, and Andrews agreed to give him her cellular telephone. Hesch then picked up Ray, and they dropped Andrews off at the hospital.
At trial, Hesch testified that he took Andrews to the restaurant to cook some cocaine. He reported holding a knife to scrape cocaine resin from his paraphernalia, when Andrews grabbed his arm yelling, "I didn't rat on your boy." Hesch testified that they began to struggle and suggested that Andrews was cut accidentally. Hesch testified that when they drove to Ray's, Hesch left Andrews outside in the running car. Hesch and Ray then drove Andrews to the hospital.
In his opening statement, Hesch's attorney told the jury that Ray would be called as a defense witness to testify that Andrews did not act as if she had been assaulted and kidnapped and that Hesch left Andrews alone in the running car for ten minutes. Defense counsel also explained that when Ray came out to the car, Ray was not angry with Andrews and did not say anything about social workers. Finally, defense counsel said that Ray would testify that Hesch suggested taking Andrews to the hospital and that Andrews initially did not want to go.
During trial, however, Ray retained counsel and invoked his Fifth Amendment right to remain silent. Superior Court Judge Robert B. Downes ruled that Ray had a valid privilege to not testify. The State declined to grant Ray immunity, and Judge Downes concluded that he could not compel Ray to testify.
Hesch moved to dismiss the kidnapping and assault charges, but Judge Downes denied the motion, explaining that the information Ray could offer would not be crucial testimony and would be somewhat consistent with Andrews's testimony. Hesch then requested an instruction to the jury that Ray had been deemed "unavailable to testify," but Judge Downes denied the motion.
The jury convicted Hesch on all counts, and Hesch now appeals. The Motion to Dismiss
In State v. Echols, this court held that a trial judge may dismiss criminal charges if the State refuses to immunize a witness who has crucial exculpatory evidence to offer. For Hesch to prevail on this claim, he would have to show that the absence of Ray's testimony affected the fundamental fairness of his trial — that it was obvious that Ray's testimony would have led to Hesch's acquittal and that the State did not have a valid reason to decline immunity.
793 P.2d 1066, 1072-75 (Alaska App. 1990).
See Cogdill v. State, 101 P.3d 632, 636 (Alaska App. 2004).
On appeal, Hesch argues that Ray's testimony would have corroborated his account of the evening. Specifically, Hesch argues that Ray's testimony would have corroborated Hesch's description of leaving Andrews in the running car while going into Ray's residence, that Ray and Hesch decided to take Andrews to the hospital, and that Andrews did not ask to go to the hospital. Hesch also argues that Ray could have testified that Andrews did not behave like an assault or kidnapping victim, that Ray did not see a knife, and that Ray was no longer concerned about the possibility of Andrews having called the social workers.
But even assuming that Ray would have convinced the jury of those facts, the proposed testimony would not necessarily have produced an acquittal. Andrews had testified that Hesch stabbed her in the restaurant and that he detained her, both in the restaurant and again as they drove around in his car. Ray was not a witness to these events. Ray's testimony would have been limited to the time after Hesch arrived at Ray's residence.
The main dispute at trial was whether Hesch stabbed Andrews and detained her: Andrews testified that he committed these crimes; Hesch testified that he did not. Hesch argues that Ray's testimony about Andrews's demeanor would have suggested that she had not been stabbed and kidnapped. But Ray's testimony would also have been consistent with Andrews's testimony that her plan was to calm Hesch by acting normal. In other words, the jury could have reasonably concluded that Hesch was guilty, even if they believed Ray's testimony.
Hesch's attorney also said that Ray would have testified that Hesch left Andrews alone in a running car, suggesting that she did not try to escape when she had the chance. But the jury could still have concluded that Hesch was guilty of kidnapping for keeping Andrews in the storage room or for driving her to the woods before they arrived at Ray's residence. Again, Ray's testimony would have been consistent with Andrews's testimony that her plan was to reassure Hesch by acting normal and would not necessarily have led to an acquittal.
There were also valid reasons for the State to decline immunity. We have recognized that granting immunity to a witness who wants to absolve a possible accomplice would encourage collusion and witness-tampering. In the present case, Ray's testimony could have implicated him in illegal drug activities as well as kidnapping and assault. We conclude that Judge Downes was not required to grant Hesch's motion to dismiss.
Id. at 636.
The Jury Instruction Request
Hesch also argues that the trial court abused its discretion by failing to instruct the jury to draw no inference from Ray's decision not to testify. Hesch bases his argument on Alaska Evidence Rule 512.
Evidence Rule 512(a) prohibits commenting on or drawing inferences from an assertion of privilege. Evidence Rule 512(b) provides that, when practicable, claims of privilege should be made outside the jury's presence. And Evidence Rule 512(c) provides that, "Upon request, any party against whom the jury might draw an adverse inference from a claim of privilege is entitled to an instruction that no inference may be drawn therefrom." In other words, if the jury might draw an adverse inference from a claim of privilege, then the instruction is a matter of right.
See Commentary to Alaska Evid. R. 512(c).
Hesch did not raise Rule 512(c) when he made his request in the trial court. Hesch merely asked the judge to instruct the jury that "the court has deemed [Ray] legally unavailable." Hesch's appellate argument based on Rule 512 must therefore be reviewed for plain error: Hesch must show that the error was "so obvious that any competent judge or attorney would have recognized it." Hesch cannot show plain error on this issue because there is a split among the authorities concerning whether an instruction is required when a witness makes a claim of privilege outside the presence of a jury and the jurors therefore do not know that the privilege has been asserted.
Simon v. State, 121 P.3d 815, 820 (Alaska App. 2005).
There are a number of cases requiring a neutralizing instruction upon request in such a situation. But many of these cases cite this rule only in passing — that is, in the context of affirming a conviction over a defendant's argument that he should have been allowed to call a witness to the stand to have the jury hear the witness assert the privilege. However, both the Louisana Supreme Court and the New Jersey Supreme Court have stated that an instruction should be given. These cases suggest that a judge should provide an instruction upon request when a witness has been made unavailable through the assertion of privilege, even when a witness asserts the privilege outside the presence of the jury. However, all of these cases were decided under the common law, not under rules like Evidence Rule 512.
See, e.g., Bowles v. United States, 439 F.2d 536, 542 (D.C. Cir. 1970).
See United States v. Martin, 526 F.2d 485, 486-87 (10th Cir. 1975); Commonwealth v. Greene, 285 A.2d 865, 867 (Pa. 1971); People v. Thomas, 415 N.E.2d 931, 935 n. 1 (N.Y. 1980); State v. Kirk, 651 N.E.2d 981, 984 (Ohio 1995); Faver v. State, 393 So. 2d 49, 50-51 (Fla. App. 1981).
State v. Haddad, 767 So. 2d 682, 687-89 (La. 2000); State v. McGraw, 608 A.2d 1335, 1340-41 (N.J. 1992) (requiring such an instruction even in the absence of a request).
On the other hand, there are at least two cases where courts in other jurisdictions have concluded that evidence rules similar or identical to Alaska Evidence Rule 512 do not require an instruction when the jury is not aware of the claim of privilege. In both of these cases, the courts did note that failure to give the instruction in such a scenario would have been harmless error.
People v. Stewart, 93 P.3d 271, 305-06 (Cal. 2004) ("If no one invokes a privilege, or if the privilege is invoked without the knowledge of the jury, then there is no likelihood that the fact-finder `might draw' any adverse inference."); Benitez v. State, 5 S.W.3d 915, 920 (Texas. App. 1999).
Stewart, 93 P.3d at 306; Benitez, 5 S.W.3d at 920.
This case does not require us resolve these two lines of authority to determine whether, under Alaska Evidence Rule 512(c), a party is entitled to a neutralizing instruction even when a witness claims a privilege outside the presence of the jury. The trial judge did not make an obvious error because the necessity of such an instruction was reasonably debatable.
In addition, to show plain error, Hesch must show that "the error was so prejudicial to the fairness of the proceedings that failure to correct it would perpetuate manifest injustice." Hesch cannot show manifest injustice because the failure to give an instruction likely had no effect on the jury's verdict.
Burton v. State, 180 P.3d 964, 968 (Alaska App. 2008).
To gauge the impact on the jury's decision, we must analyze the interplay between Hesch's assertion in his opening statement that Ray would testify and the fact that Ray ultimately did not testify. After the opening statement, the jurors were not given any further information about Ray's possible testimony or the reasons why he did not testify at trial. Under these circumstances, the effect of the court's refusal to give a neutralizing instruction is uncertain.
If the jury had been allowed to speculate about Ray's failure to testify, then some jurors might have surmised that Ray could have given the testimony that Hesch's attorney described. Other jurors might have speculated that the judge had excluded Ray's testimony. And yet other jurors might have speculated that Ray was not called as a witness because his testimony did not actually support Hesch's defense.
But the court specifically instructed the jury to avoid any of this speculation. The judge instructed the jury that "arguments of counsel are not evidence and cannot rightly be considered as such." If the jurors had improperly speculated that the judge had excluded Ray's testimony, then they were told not to let that speculation affect their verdict: "You may not speculate as to why . . . evidence was excluded or what it may have been." And the judge instructed the jury that they must determine the facts "by relying solely upon the evidence received in this trial." We assume that the jury followed these instructions, and thus Ray's absence from the trial had no effect on their deliberations.
See Dailey v. State, 65 P.3d 891, 897 (Alaska App. 2003) ("Ordinarily we presume that a jury follows the court's limiting instructions.").
Moreover, the jury heard strong evidence of Hesch's guilt. Andrews gave detailed testimony that Hesch intentionally stabbed her in the restaurant and that he detained her both in the restaurant and later as they drove around in his car. Much of Hesch's testimony was consistent with Andrews's account. And the medical evidence suggested that Andrews had been stabbed with considerable force, causing wounds that were inconsistent with Hesch's testimony that Andrews was cut accidentally. Thus, any speculation about Ray's absence had no appreciable effect on the guilty verdict.
Conclusion
We therefore AFFIRM the superior court's judgment.