Opinion
Court of Appeals No. A-10400.
August 3, 2011.
Appeal from the Superior Court, Third Judicial District, Anchorage, Michael Spaan, Judge, Trial Court No. 3AN-07-12934 CR.
Josie Garton, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Kenneth M. Rosenstein, 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
Following a jury trial conducted by Superior Court Judge Michael Spaan, Gabriel Myomick was convicted of assault in the first degree and tampering with physical evidence for stabbing Wilson Horn in the neck with a knife and then destroying physical evidence of the assault. On appeal, Myomick argues that Judge Spaan erred in refusing to dismiss the charges against him "in furtherance of justice" under Alaska Criminal Rule 43(c) after the State refused to grant transactional immunity to his niece, Wendy Shipton, whom Myomick contended was an important exculpatory witness. Myomick also claims that Judge Spaan erred in refusing to allow him to argue to the jury that the evidence suggested that Shipton might have been the person who assaulted Horn.
AS 11.41.200(a)(1).
AS 11.56.610(a)(1).
We conclude that Judge Spaan did not err in refusing to dismiss the case against Myomick under Criminal Rule 43(c). We conclude, however, that Judge Spaan erred in preventing Myomick from arguing to the jury that Shipton might have been the person who assaulted Horn.
Factual and procedural background
Horn testified that he was at Myomick's trailer, drinking with Myomick. Wendy Shipton, Myomick's niece, was also present in the trailer. Horn was sitting on the sofa when Myomick stabbed him in the neck. Horn fled the trailer and went next door, where he asked the neighbors for help.
About ten minutes earlier, the neighbors had seen Shipton and Myomick trying to push Horn out of the trailer. When the police arrived, they demanded that Myomick and Shipton come out of the trailer. Both Shipton and Myomick initially refused, but after about ten minutes, Shipton came out, and Myomick followed ten minutes after that. Horn, Myomick, and Shipton were intoxicated.
The police obtained a search warrant for the residence and discovered that a pair of black jeans was being washed, that a clean, wet knife was in the kitchen sink, and that the shower had recently been used and wet rags were hanging in it. At trial, Horn identified the jeans as those Myomick was wearing when he stabbed Horn.
Myomick called Shipton as a defense witness. Shipton testified that she observed a makeshift bandage on Horn's neck at about 11:00 in the morning, before the alleged assault. She also recalled wrestling with Horn, trying to get him out the door.
But when Myomick's counsel showed Shipton pictures of the knife that the police found in the sink, Shipton declared, "I don't want to incriminate myself." Judge Spaan adjourned the trial for the day. He later determined that Shipton had a valid Fifth Amendment claim. Myomick argued that the State should grant Shipton transactional immunity so she could testify. He argued that if the State did not grant Shipton transactional immunity, then the court should dismiss the case in furtherance of justice under Criminal Rule 43(c).
The State declined to grant immunity to Shipton. Judge Spaan denied the motion to dismiss and ordered Shipton's testimony stricken. The court did allow the defense to introduce Shipton's earlier statement that she had wrestled with Horn on the night in question. But Judge Spaan ruled that Myomick could not introduce Shipton's prior statement that Horn had a makeshift bandage on his neck before the assault, and that Horn had explained his injury by saying he had tried to kill himself.
Judge Spaan also ruled that Myomick could not argue that Shipton was an alternate suspect who could have been the person who had actually assaulted Horn. Judge Spaan gave two reasons for his ruling. First, he stated that Myomick was barred from presenting this argument because it was an affirmative defense and Myomick had not given the State notice of the defense under Criminal Rule 16(c)(5). Judge Spaan also stated that there was "no evidence to link Shipton to the crime but pure speculation." Relying on Smithart v. State, he concluded that there was insufficient evidence to allow Myomick to argue this alternative suspect theory to the jury.
988 P.2d 583 (Alaska 1999).
Following the presentation of the evidence, the jury convicted Myomick.
Judge Spaan did not err in refusing to dismiss the case under Criminal Rule 43(c)
In State v. Echols, we held that the trial court had the authority, under the extreme circumstances presented in that case, to dismiss a criminal case when the State refused to grant use immunity to a critical defense witness. These circumstances included the State's manipulation of the witness in order to obtain favorable testimony and, hence, the State's complicity in the witness's unavailability. We are unaware of any other case in which a trial court in this state has dismissed a prosecution on similar grounds. And, on appeal, we have upheld trial court decisions refusing dismissal.
793 P.2d 1066 (Alaska App. 1990).
Id. at 1074-75.
Id.
See Cogdill v. State, 101 P.3d 632, 636 (Alaska App. 2004); Blair v. State, 42 P.3d 1152, 1155 (Alaska App. 2002).
In Blair v. State, we pointed out that the "decision in Echols applies only to a narrow set of circumstances: instances where the State's refusal to grant immunity to a defense witness undermines the fundamental fairness of the trial." In Echols and Blair, we pointed out that "the court's ultimate power to dismiss a criminal prosecution must be exercised sparingly so as to preserve the basic rule that decisions involving witness immunity `lie within the exclusive province of the executive branch.'"
Id. at 1155 (footnote omitted).
Id. (quoting Echols, 793 P.2d at 1075).
We have also recognized that the State's obligation to provide immunity has changed since Echols was decided. The State cannot merely offer use immunity to a witness, but must offer transactional immunity. This change in the law provides a significant justification for the State's refusal to grant a witness immunity. In denying Myomick's motion to dismiss, Judge Spaan considered this factor. Judge Spaan concluded that the State had substantial reasons for refusing to grant Shipton transactional immunity for a potential class A felony offense.
State v. Gonzalez, 853 P.2d 526, 528, 532 (Alaska 1993).
Judge Spaan also concluded that there was no evidence that Shipton "had any critical testimony regarding [Myomick's] guilt or innocence."
We conclude that Judge Spaan did not err in denying Myomick's motion to dismiss. Given the evidence presented at trial, there was a significant possibility that Shipton might have been an accomplice to the assault or the evidence tampering. We have previously held that "in situations where an apparent accomplice to a criminal scheme indicates a desire to absolve other participants in the scheme, freely granting immunity would likely engender collusion and witness tampering." In addition, Myomick has not established that the State's refusal to grant Shipton immunity was one of the rare circumstances where the refusal to grant immunity would undermine the fundamental fairness of the trial. Judge Spaan erred in precluding Myomick from arguing that Shipton was an alternative suspect
Cogdill, 101 P.3d at 636; see also Blair, 42 P.3d at 1155-56.
Blair, 42 P.3d at 1155.
Judge Spaan ruled that Myomick could not argue that Shipton was possibly the one who committed the assault on Horn. Judge Spaan gave two reasons for his ruling. First, he concluded that Myomick was prohibited from making this argument because it was an affirmative defense and Myomick had not provided the State with advance notice of the defense under Criminal Rule 16(c)(5). He also concluded that there was insufficient evidence to link Shipton to the assault to support this argument. Criminal Rule 16(c)(5) requires that a defendant give the State notice within ten days of trial "of the defendant's intention to rely upon a defense of alibi, justification, duress, entrapment, or other statutory or affirmative defense." The argument that another person might have committed the crime is not an affirmative defense described within this rule; rather, it is simply the contention that the evidence presented at trial was insufficient to prove that the defendant was the person who committed the crime. The evidence need only tend to create a reasonable doubt that the defendant committed the offense.
Smithart, 988 P.2d at 588.
Judge Spaan apparently relied on Smithart in concluding that there was insufficient evidence for Myomick to argue that Shipton was an alternative suspect. In Smithart, the supreme court relied on its earlier case of Marrone v. State. In Smithart, the supreme court pointed out that Marrone only limits the ability of a defendant to introduce independent evidence of an alternative suspect's guilt, evidence that could be confusing to the jury or time-consuming. Neither Smithart nor Marrone limits the ability of the defendant to argue reasonable inferences from the evidence.
359 P.2d 969 (Alaska 1961).
Smithart, 359 P.2d at 589.
In the present case, it is undisputed that Shipton was intoxicated, was present at the scene, and was seen wrestling with Horn. Under these circumstances, Myomick was entitled to argue that Shipton was an alternative suspect, and that there was therefore a reasonable doubt as to his guilt.
Conclusion
We REVERSE Myomick's convictions.