THE COURT OF APPEALS OF THE STATE OF ALASKA
JOSEPH J. HAZELWOOD, )
) Court of Appeals No. A-3452
Appellant, ) Trial Court No. 3AN-S89-7217CR
) t/w 3AN-S89-7218CR
v. )
) OPINION ON REMAND
STATE OF ALASKA, )
)
Appellee. ) [No. 1465 - March 15, 1996]
______________________________)
Appeal from the Superior Court, Third
Judicial District, Anchorage, Karl S.
Johnstone, Judge.
Appearances: Richard H. Friedman,
Friedman, Rubin & White, Anchorage, for
Appellant. Cynthia M. Hora, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, Coats,
Judge, and Hodges, Superior Court Judge.*
[Mannheimer, Judge, not participating.]
BRYNER, Chief Judge.
Joseph J. Hazelwood was convicted by a jury of
negligent discharge of oil. This court reversed his conviction
on appeal; we held that Hazelwood was immune from prosecution and
directed that the charge be dismissed. Hazelwood v. State, 836
P.2d 943 (Alaska App. 1992). The Alaska Supreme Court
subsequently reversed our decision and remanded the case to us.
State v. Hazelwood, 866 P.2d 827 (Alaska 1993). On remand, we
hold that Hazelwood's prosecution was permissible under the
inevitable discovery doctrine, but we conclude that the trial
court erred in ruling that certain items of
evidence were admissible under the doctrine and in instructing
the jury on civil, rather than criminal negligence. We thus
reverse Hazelwood's conviction and remand for a new trial.
BACKGROUND
Shortly after midnight on March 24, 1989, the Exxon
Valdez, an oil tanker operated by the Exxon Shipping Company, ran
aground on Bligh Reef, spilling eleven million gallons of oil
into Prince William Sound. Joseph J. Hazelwood, the vessel's
captain, was convicted by a jury of negligent discharge of oil, a
class B misdemeanor. See AS 46.03.740; former AS 46.03.790(a).
Hazelwood appealed to this court, contending that the
trial court erred in denying his motion to dismiss on grounds of
immunity, in failing to suppress certain evidence of his
intoxication, and in instructing the jury on the applicable
culpable mental state for his offense. Hazelwood also challenged
his sentence as excessive.
In Hazelwood v. State, 836 P.2d 943 (Alaska App. 1992),
we reversed Hazelwood's conviction, holding that, under Section
311 of the Federal Water Pollution Prevention and Control Act, 33
U.S.C. ' 1321(b)(5) (1988), Hazelwood was entitled to use and
derivative use immunity as a result of his immediate oil-spill
report.1 In reaching this conclusion, we considered and
rejected two exceptions to the exclusionary rule that the trial
court had invoked in finding Hazelwood's prosecution permissible
despite the statutory grant of immunity he received by virtue of
his oil-spill report. Hazelwood at 946-54.
The trial court had ruled that the prosecution's
evidence derived from a source wholly independent of Hazelwood's
oil-spill report and was thus admissible under the independent
source doctrine. We found, however, that essentially all of the
state's evidence against Hazelwood derived directly from his
immunized report of the oil spill, and not from any independent
source. We thus found that the record failed to support the
trial court's conclusion that prosecution was permissible under
the independent source doctrine. Id. at 948-50.
The trial court also had found that virtually all of
the evidence against Hazelwood would inevitably have been
discovered even if Hazelwood had not reported the spill; the
trial court thus had concluded that Hazelwood's prosecution was
warranted under the inevitable discovery rule. We rejected the
trial court's ruling. For purposes of our decision, we "assume[d]
that . . . Judge Johnstone's factual findings concerning the
inevitability of the Exxon Valdez's discovery are supported by
the record." Id. at 951. We nevertheless held, as a matter of
state law, that the inevitable discovery doctrine did not extend
to congressionally enacted grants of immunity. Id. at 954.
The Alaska Supreme Court subsequently reviewed, and
eventually reversed, our decision. State v. Hazelwood, 866 P.2d
827 (Alaska 1993). Although the supreme court affirmed our
ruling that the record failed to justify application of the
independent source rule in Hazelwood's case, id. at 831, the
court held that we had erred in holding the inevitable discovery
doctrine categorically inapplicable to cases of immunity. Id. at
834.
In reaching this conclusion, the supreme court first
disapproved this court's application of Alaska law to decide the
inevitable discovery issue; the court declared that federal law
applied: "The scope of immunity under 33 U.S.C. ' 1321(b)(5), and
its constitutionally permissible exceptions, are issues of
federal law. Thus United States Supreme Court precedent, rather
than our own precedent, controls our resolution of this case."
Id. at 829 n.1.2 The supreme court went on to decide, as a
matter of federal law, that the inevitable discovery doctrine
does extend to cases (like Hazelwood's) involving statutory
grants of use and derivative use immunity. Id. at 834. Noting
that it "express[ed] no view as to the admissibility of any
particular portion of the State's evidence against Hazelwood" and
that "[s]uch evidentiary questions remain for resolution by the
court of appeals," id. at 831 n.7, the supreme court remanded the
case to us for further proceedings:
We therefore hold, in accordance with
the applicable U.S. Supreme Court precedent,
that the court of appeals erred in ruling
that the inevitable discovery doctrine has no
application in the context of this statutory
grant of immunity. Since our reading of
Kastigar and Nix impels us to the conclusion
that application of the doctrine of
inevitable discovery to the use and
derivative use immunity provided for in 33
U.S.C. ' 1321(b)(5) is permissible, we remand
this case to the court of appeals for further
proceedings.
Id. at 834.3
Upon remand of Hazelwood's case by the supreme court,
the parties filed supplemental briefs with this court, and the
case was submitted to us for renewed consideration.
INEVITABLE DISCOVERY
The supreme court's decision initially calls upon us to
address the inevitable discovery issue we previously left open:
whether the trial court's findings applying the doctrine to
Hazelwood's case are supported by the record.4 This requires a
threshold consideration of the scope of the inevitable discovery
doctrine itself.
As we said in our initial opinion, the inevitable
discovery doctrine, as approved in Nix v. Williams, 467 U.S. 431
(1984), works "to avoid suppressing illegally obtained evidence
when the prosecution has demonstrated that, although its evidence
actually derived from a source tainted by illegality, the same
evidence would inevitably have been discovered through lawful,
untainted means had the illegality not occurred." Hazelwood v.
State, 836 P.2d at 950 (citing Wayne R. LaFave, Search and
Seizure ' 11.4(a) at 378-88 (2d ed. 1987)). Federal courts have
been circumspect in interpreting and applying the doctrine; they
have construed it as a narrow exception to the general rule of
suppression -- an exception under which the hypothetical inevita
bility of a lawful discovery must be inferred from evidence
relating to the situation actually existing at the time of the
unlawful discovery, not from after-the-fact testimony speculating
about what might have been had no unlawful discovery occurred.
Nix itself involved a situation in which the police
discovered a murder victim's body after being directed to it by a
defendant whose cooperation had been obtained in violation of his
Sixth Amendment right to counsel. At the time of the violation,
however, a lawful search in the vicinity of the body was already
underway. Finding that the previously initiated search
inevitably would have led to the body, the Court invoked the
inevitable discovery doctrine. 467 U.S. at 449-50.
Following Nix's lead, some federal courts have been
willing to apply the inevitable discovery doctrine only when an
investigation was already underway before the occurrence of the
unlawful act in question. This line of cases, exemplified by
United States v. Satterfield, 743 F.2d 827, 846 (11th Cir. 1984)
(emphasis in original), holds that "the prosecution must
demonstrate that the lawful means which made discovery inevitable
were possessed by the police and were being actively pursued
prior to the occurrence of the illegal conduct."5
Other federal courts, including those of the Ninth
Circuit, have enlarged the doctrine by accepting proof that
"pursuant to some standardized procedures or established routine
a certain evidence-revealing event would definitely have occurred
later." 5 Wayne R. LaFave, Search and Seizure ' 11.4(a), at 249-
50 (3d ed. 1996). See, for example, United States v. Ramirez-
Sandoval, 872 F.2d 1392, 1399 (9th Cir. 1989) (citation omitted):6
[T]his circuit does not require that the
evidence be obtained from a previously
initiated, independent investigation. The
government can meet its burden by
establishing that, by following routine
procedures, the police would inevitably have
uncovered the evidence.
Courts in this category, however, have required the
government to prove the existence of "an invariable, routine
procedure," United States v. Gorski, 852 F.2d 692, 696 (2d Cir.
1988), or to demonstrate that "policy dictated" the action that
would have inevitably resulted in discovery, United States v.
Infante-Ruiz, 13 F.3d 498, 504 (1st Cir. 1994).7 The government
must show not only that the procedure would inevitably have
disclosed the evidence but also that the procedure was in place
and would have been followed.8
Absent proof that discovery of evidence was inevitable
in light of either events already in progress or procedures
already in place when an unlawful discovery occurred, federal
courts faced with tainted evidence have uniformly declined to
apply the inevitable discovery doctrine.9 In the present case,
the state has cited no federal or state rulings that apply the
doctrine based on hindsight testimony concerning circumstances
never in existence, actions never actually initiated, or
investigative procedures never firmly in place.10
The federal courts' circumspection in applying the
inevitable discovery doctrine is readily understood. Professor
LaFave explains that the dangers of the doctrine are not
intrinsic, but arise instead from the potential for its
"application in a loose and unthinking fashion." LaFave, supra,
at 244. LaFave thus cautions that, "[i]n carving out the
'inevitable discovery' exception to the taint doctrine, courts
must use a surgeon's scalpel and not a meat axe." Id. For if
hindsight optimism were accepted as a substitute for hard facts
in proof of inevitable discovery, the prosecution could almost
always find witnesses to venture confident assurances --
unimpeachable in retrospect -- that, but for the illegality in
question, any number of steps could have, and probably would
have, resulted in the discovery of the same evidence. Virtually
any investigative misconduct might then be rationalized -- and
suppression often be avoided -- by after-the-fact hypothesizing
of alternative, lawful means for discovering the same evidence.
So construed, the inevitable discovery exception would simply
swallow the general rule of suppression.
This is clearly not what the United States Supreme
Court had in mind when it decided Nix v. Williams. Indeed, the
Court in Nix expressly called for the narrow forms of proof that
ensuing federal decisions have exactingly required. In refusing
to subject the inevitable discovery doctrine to a quantum of
proof more stringent than preponderance of the evidence -- the
standard commonly applied in matters involving the suppression
rule -- the Nix court took pains to emphasize that "inevitable
discovery involves no speculative elements but focuses on
demonstrated historical facts capable of ready verification or
impeachment." Nix v. Williams, 467 U.S. at 444 n.5.
For purposes of the present case, we must take Nix at
face value. Thus, in reviewing the record to determine whether
the trial court's inevitable discovery findings are supported, we
must focus on evidence of "demonstrated historical facts capable
of ready verification or impeachment." The case law of the Ninth
Circuit, although somewhat broader in its application of the
inevitable discovery doctrine than the case law of some federal
circuits, is consonant with Nix. Alaska finds itself situated in
the Ninth Circuit. Accordingly, to the extent that federal cases
evidence any conflict, we think it appropriate to take guidance
from the Ninth Circuit.
As interpreted by federal case law, the inevitable
discovery doctrine provides no easy cure for the problems
engendered by the statutory grant of use and derivative use
immunity Hazelwood received in the present case. Because
Hazelwood's immunized report triggered the investigation that led
to his conviction, virtually all of the prosecution's evidence
derived from the initial report and fell within its cloak of
statutory immunity. The trial court found, however, that
virtually all of the evidence apart from Hazelwood's immunized
report inevitably would have been discovered:
The defendant's report of the
grounding notwithstanding, the state
inevitably would have discovered the
grounding of the Exxon Valdez and initiated
the investigatory process by not later than
12:45 a.m. on March 24, 1989. The court
further concludes, based on the facts, that
the investigating team of Falkenstein,
Delozier, Lawn, and Fox, would have arrived
at approximately the same time as they, in
fact, did. Any observation made or
investigation actually commenced would have
been made or commenced at approximately the
same time.
As a result of the inevitable
discovery and the substantially identical
investigation which would have occurred, the
court finds that all evidence gathered was
derived from a wholly independent source
other than the defendant's report.
Defendant's report that "evidently we're
leaking some oil" will be excluded. All
other evidence will be admitted, subject to
other proper objections.
Under the more restrictive federal test articulated in
cases such as United States v. Satterfield, the trial court's
inevitable discovery finding might be questioned in its entirety,
since it is doubtful whether "the lawful means which made
discovery inevitable were . . . being actively pursued prior to"
Hazelwood's radioed report of the Exxon Valdez's grounding. 743
F.2d at 846 (emphasis in original). The same is not true under
the broader standard applied in the Ninth Circuit, which allows
inevitable discovery to be predicated on proof that the evidence
would have been found "by following routine procedures." United
States v. Ramirez-Sandoval, 872 F.2d at 1399.
The Exxon Valdez's passage out of Valdez was monitored
by the Coast Guard's Vessel Traffic Center [the VTC] in Valdez.
The vessel departed the harbor between 9:00 p.m. and 9:30 p.m. on
March 23, 1989. At approximately 11:30 p.m., Hazelwood called
the VTC from Rocky Point, a mandatory reporting point for vessels
exiting Valdez, and obtained permission to deviate from his
traffic lane to avoid ice. He informed the VTC that the Exxon
Valdez's estimated time of arrival at Naked Point, the next
mandatory reporting point, was 1:00 a.m.; he said he would call
the VTC again with a new estimated time of arrival for Naked
Point after he was clear of ice. Providing an updated estimated
time of arrival was evidently a usual, but not mandatory
procedure. At 12:07 a.m., about a half-hour after leaving its
traffic lane, the Exxon Valdez ran aground on Bligh Reef and
began leaking oil. Hazelwood radioed the VTC to report the
grounding and spill nineteen minutes later, at 12:26 a.m.
When Hazelwood's report came in, Bruce Blandford, a
vessel traffic controller, was on duty at the VTC. Blandford had
worked at the VTC for more than two years and had "pretty much of
a feel for when people are going to call you[.]" Blandford knew
that Hazelwood had said he would call with a new estimated time
of arrival for Naked Point after the Exxon Valdez was clear of
ice. At the time he received Hazelwood's report of the grounding
and spill, Blandford "was beginning to wonder why I hadn't heard
from them." The Exxon Valdez was out of range of the VTC's radar
when Hazelwood's report was received. By changing the radar
settings after receiving Hazelwood's call, however, Blandford
located the vessel in the vicinity of Bligh Reef. He notified
his superiors.
The record is undisputed that the VTC was responsible
for both tracking the Exxon Valdez out of Valdez and initiating
an immediate investigation in the event of either a grounding or
an oil spill. Blandford and other Coast Guard witnesses
testified that an array of investigative options would have been
available to Blandford had the Exxon Valdez failed to report.
The record unquestionably supports the conclusion that, in the
routine course of his duties, by pursuing these options,
Blandford would have discovered that the Exxon Valdez was aground
on Bligh Reef. He would then have been required to do precisely
what he did upon hearing Hazelwood's own report: notify his Coast
Guard supervisors. They, in turn, would have launched an
immediate investigation of the grounding and spill.
Given these circumstances -- particularly in light of
the nature and magnitude of the events surrounding the Exxon
Valdez's grounding -- the record clearly supports the trial
court's general finding that the vast bulk of evidence at trial
would inevitably have been discovered if Hazelwood had failed to
report his vessel's grounding. It seems beyond reasonable
dispute that, "pursuant to . . . standardized procedures or
established routine," LaFave, supra, at 249, the Coast Guard and
the state would have ended up with almost the same evidence that
they acquired as a result of Hazelwood's immunized report. Thus,
in large measure, the court's inevitable discovery findings must
be upheld.
In two specific respects, however -- the first
pertaining to certain evidence surrounding Hazelwood's blood-
alcohol content; the second pertaining to the discovery of
Hazelwood's own statements -- the trial court's inevitable
discovery findings are problematic.
Blood and urine samples were collected from Hazelwood
on the morning of his vessel's grounding; these samples were
subsequently tested and found to contain traces of alcohol. The
precise timing of the investigation plays a critical part in
resolving whether this evidence would have been inevitably
discovered. As previously indicated, Judge Johnstone found that
"the state inevitably would have . . . initiated the
investigatory process by not later than 12:45 a.m. on March 24,
1989." (That is, within approximately nineteen minutes of the
time Hazelwood actually submitted his report.) This finding led
the judge to further find that the same team of investigators who
actually first boarded the Exxon Valdez would inevitably have
boarded the vessel at about the same time had Hazelwood failed to
report the spill.
In fixing the precise time for the inception of the
investigation, Judge Johnstone relied on testimony given by
Blandford and his supervisors, who all believed that, had
Blandford failed to hear from the Exxon Valdez, he would have
called the vessel before 12:45 a.m. and, failing contact by
radio, would have quickly located the vessel on radar and
realized it was aground. However, the testimony given by these
witnesses concerning the timing of events was based on their
retrospective assessment of what likely would have happened, not
on the existence of a specific procedure or routine that required
Blandford to call the vessel by 12:45 a.m.
As already indicated, Blandford and his superiors made
it clear that the Coast Guard was responsible for tracking the
Exxon Valdez and for investigating any failure by the vessel to
maintain required communications or procedures with the VTC. And
they all testified about various routine procedures -- some more
time- consuming than others -- that were available to Blandford
if a vessel did not communicate on schedule. But nobody
testified that any specific priority had been established among
the array of investigative options open to Blandford or, more to
the point, that any then-existing procedures required Blandford
to contact the Exxon Valdez before 12:45 a.m. if Hazelwood failed
to check in.
To the contrary, Blandford readily acknowledged that
the timing and choice of options was essentially a matter within
his discretion and that no set procedure existed:
Q. If you lost such communication
where the vessel was not responding, for
whatever reason, what steps could you take to
locate it?
A. If we suspected that -- if we had
made repeated calls to the vessel, and with
no response. If he were in radar coverage
area we might look to find him on the radar.
We might make calls to other vessels in the
area to ascertain where this vessel may be
and be headed.
Commander Thomas Falkenstein, the officer to whom Blandford
reported at the VTC, confirmed this testimony:
Q. You indicated that ordinarily they
report but there is no set procedure if they
don't report?
A. Not that I'm aware of, sir.
Hence, the testimony of Blandford and other witnesses
about the likely time it would have taken to discover the
grounded vessel consisted of subjectively based supposition. No
evidence in the record establishes the existence of "an
invariable, routine proceeding," United States v. Gorski, 852
F.2d at 696, from which it could be inferred that Blandford would
have discovered the grounding of the Exxon Valdez by 12:45 a.m.;
nor does the record demonstrate that such prompt action was
something that "policy dictated," United States v. Infante-Ruiz,
13 F.3d 498, 504 (1st Cir. 1994). In short, we find no
"demonstrated historical facts capable of ready verification or
impeachment" to support the trial court's findings that discovery
no later than 12:45 a.m. was inevitable. Nix v. Williams, 467
U.S. at 444 n.5.
The record amply establishes that set procedures would
have led Blandford to do something that would have led to his
discovery of the grounding within a time frame that would
inevitably have preserved investigative evidence that was not
particularly time sensitive; but apart from Blandford's and
others' opinions on the matter, the record does not establish
precisely what he would have done and when he would have done it.
Indeed, in its opening brief on appeal, the state effectively
concedes the point:
The state agrees that Mr. Blandford
was not able to state precisely what steps he
would have taken had Hazelwood not reported
the grounding. . . . When one is faced by
hypotheticals, the only sensible answer to
questioning on how one would react is by
answering that he would have considered all
options and acted accordingly. Although Mr.
Blandford could not testify that he would
have undertaken any particular action, his
testimony is clear that he inevitably would
have done something which would have led to
the discovery of the tanker on Bligh Reef.
Plausible as it may seem in retrospect, Blandford's testimony
cannot support the trial court's finding that the Exxon Valdez's
grounding would inevitably have been discovered and reported
within nineteen minutes of Hazelwood's actual report.
Because the precise timing of the investigation is
speculative, the inevitability of obtaining blood and urine
samples from Hazelwood -- particularly time-sensitive evidence --
cannot be established. The state argues that, even if some delay
in initiating an investigation had occurred, investigators would
surely have obtained blood and urine samples from Hazelwood in
time to detect the presence of sufficient alcohol to allow
extrapolation back to the time of the grounding -- essentially
the same procedure the state relied on with the samples it
actually obtained. This argument misses the point: "It is
important to keep in mind that the question is whether that very
item of evidence would inevitably have been discovered, not
merely whether evidence roughly comparable would have been so
discovered." LaFave, supra, at 243. Samples of blood or urine
containing materially different concentrations of alcohol might
have amounted to comparable evidence, permitting comparable
inferences to be drawn, but they would not have been the same
evidence.
Moreover, the state's argument presupposes that investi
gators operating on a different timeline would have been equally
motivated to gather the same evidence and equally capable of
obtaining it. The record supports neither of these conclusions.
For instance, Mark Delozier, the Coast Guard officer at
the VTC in charge of marine casualty investigations when the
grounding occurred, testified that upon boarding the Exxon Valdez
he encountered Hazelwood on the bridge and detected an odor of
alcohol on his breath. Delozier's testimony makes it clear that
this observation prompted him to arrange for samples of
Hazelwood's blood and urine to be obtained. No one capable of
drawing blood samples was on the vessel at the time. After
considerable delay, arrangements were made to bring a qualified
person aboard; yet according to the record this person might not
have been available had he been contacted even several minutes
later. Furthermore, Hazelwood himself was the person who
informed Delozier that urine specimen kits were available on
board the vessel -- information that led to the collection of
Hazelwood's own urine sample.
Nothing in the record establishes the inevitability of
a discovery comparable to Delozier's almost immediate observation
of alcohol on Hazelwood's breath. And while the record might
support the conclusion that investigators would sooner or later
have attempted to collect blood or urine samples from Hazelwood,
there is nothing to assure that they would have been as prompt or
successful if their efforts were delayed or lacked the impetus
provided by Delozier's initial encounter with Hazelwood.11 By the
same token, there is nothing to show that Hazelwood himself would
have been as compliant and forthcoming if he had failed to report
the spill and had not believed himself immune from prosecution.12
This lack of evidence weighs heavily against the state. For in
order to meet its burden under the inevitable discovery rule,
"the prosecution should be required 'to prove exactly how [the
evidence] would have been discovered.'" LaFave, supra, at 248
(footnote containing citation omitted). Without evidence of the
precise nature and sequence of investigative efforts that would
have been undertaken had Hazelwood's report not been received,
any effort to determine exactly what might have been collected
from Hazelwood, or when it might have been collected, becomes a
venture so speculative as to preclude confident, let alone
inevitable, prediction. We conclude that, on the current record,
evidence of the alcohol Delozier smelled on Hazelwood's breath
and evidence stemming from the blood and urine samples Delozier
subsequently obtained from him do not fall within the scope of
the inevitable discovery doctrine and were improperly admitted at
trial.
For somewhat similar reasons, we reach the same
conclusion with regard to various statements that Hazelwood made
to investigators. It is undisputed that these statements were
made to or elicited by persons whose contact with Hazelwood
resulted from Hazelwood's report of the oil spill. The
statements thus clearly fell within the scope of the use and
derivative use immunity that Hazelwood received by reporting the
spill; they could be admitted under the inevitable discovery
doctrine only if the state proved that it would have obtained
them regardless of Hazelwood's initial report.
The state argues that, in the routine course of
investigating the spill, it would have asked Hazelwood similar
questions and would have obtained substantially the same
information. But, as we have already pointed out, for inevitable
discovery purposes, "the question is whether that very item of
evidence would inevitably have been discovered, not merely
whether evidence roughly comparable would have been so
discovered." LaFave, supra, at 243. To meet the requirements of
the inevitable discovery doctrine, it was incumbent on the state
to prove, not only that it would have asked Hazelwood the same
questions, but also that he would have given the same answers.
See United States v. Ramirez-Sandoval, 872 F.2d at 1399-1400;
State v. McKendall, 584 P.2d 316, 320 (Or. App. 1978); cf. United
States v. Eng, 971 F.2d 854, 860-61 (2d Cir. 1992); United States
v. Roberts, 852 F.2d 671, 676 (2d Cir. 1988).
According to the record, Hazelwood was aware that he
was entitled to immunity from prosecution because he had
immediately reported that his vessel was aground and leaking oil.
Hazelwood thus had little reason to fear criminal prosecution
when he dealt with investigators. Had Hazelwood failed to
report, he would have had no reason to consider himself immune
from prosecution. One who speaks in fear of criminal prosecution
is likely to be more cautious and less forthcoming than one who
has been promised immunity; this is precisely why immunity is
given. We cannot simply presume that Hazelwood would have made
the same statements without immunity as he did after immunity had
been statutorily granted. Cf. LaFave, supra, at 252-53. Here,
even assuming that investigators might have asked exactly the
same questions, the record contains no assurance that Hazelwood
would have given exactly the same answers -- or any answers at
all. Hazelwood's statements are not admissible under the
inevitable discovery doctrine.
The state argues that any error in admitting
Hazelwood's statements against him at trial was harmless, since
those statements were essentially cumulative of other evidence.
Likewise, the state argues that the admission of evidence derived
from Hazelwood's blood and urine samples was harmless, since the
jury acquitted Hazelwood of operating a watercraft while
intoxicated and thus presumably found that he was not
intoxicated. Because we decide below that Hazelwood's conviction
must be reversed on independent grounds, we need not consider the
harmless error issue.13
As we have already held, apart from Hazelwood's
statements and the evidence of intoxication derived from the
taking of his blood and urine samples, the trial court was
correct in finding the remaining prosecution evidence to be
admissible under the inevitable discovery doctrine. Since this
remaining evidence is plainly sufficient to support the charge on
the offense for which Hazelwood was convicted -- negligent
discharge of oil -- we conclude that the trial court properly
ruled that Hazelwood's prosecution was not barred by immunity,
and that it properly denied his motion to dismiss the charge.
In originally ruling on Hazelwood's appeal, because we
decided that all of the charges against Hazelwood were barred by
immunity, we did not need to resolve Hazelwood's other points on
appeal. Since we have now decided that Hazelwood's prosecution
was not barred by immunity, we must take up his remaining claims
of error.
His first such claim -- that his blood and urine
samples were seized by the government in violation of state law
and should therefore have been suppressed -- has been rendered
moot by our conclusion that this evidence was in any event
erroneously admitted under the inevitable discovery doctrine. We
thus turn to Hazelwood's next claim.
CIVIL NEGLIGENCE INSTRUCTION
Hazelwood was convicted of negligent discharge of oil,
in violation of AS 46.03.740 and former AS 46.03.790(a). At
trial, the state proposed that the jury be given an instruction
incorporating the standard definition of civil negligence.
Hazelwood argued that the jury should be given a negligence
instruction incorporating the Alaska criminal code's definition
of criminal negligence. The trial court was persuaded by the
state's argument and ruled that the offense was governed by the
civil negligence standard.
Alaska Statute 46.03.740 reads:
A person may not discharge, cause to be
discharged, or permit the discharge of
petroleum, acid, coal or oil tar, lampblack,
aniline, asphalt, bitumen, or a residuary
product of petroleum, into, or upon the
waters or land of the state except in
quantities, and at times and locations or
under circumstances and conditions as the
department may by regulation permit or where
permitted under art. IV of the International
Convention for the Prevention of Pollution of
the Sea by Oil, 1954, as amended.
At the time of the alleged crime, former AS 46.03.790(a) provided
that a person who "negligently" violated any provision in chapter
46.03 of the Alaska Statutes was guilty of a class B misdemeanor;
this penalty provision did not specify whether the word
"negligently" referred to civil or criminal negligence.14 On
appeal, we are faced with interpreting the penalty statute's
ambiguous and undefined use of the term "negligently."15
Over Hazelwood's objection, the court instructed the
jury:
A person acts "negligently" with respect
to a result described by a provision of law
defining an offense when the person fails to
perceive an unjustifiable risk that the
result will occur; the risk must be of such a
nature and degree that the failure to
perceive it constitutes a deviation from the
standard of care that a reasonable person
would observe in the situation.
In contrast to this definition of negligence, the
statutory definition of criminal negligence set forth in AS
11.81.900(a)(4) would have required the jury to find, not just
that Hazelwood's conduct amounted to a "deviation" from the
standard of care that a reasonable person would have observed in
the same situation, but a "gross deviation" from this standard.
The distinction between the two standards is highlighted by the
Alaska Pattern Criminal Jury Instruction on criminal negligence,
which, in addition to incorporating the statutory definition of
criminal negligence, expressly cautions that criminal negligence
"is something more than the slight degree of negligence necessary
to support a civil action for damages and is negligence of a
degree so gross as to be deserving of punishment."16
Hazelwood contends that the trial court erred in
interpreting former AS 46.03.790(a) to allow his conviction for
negligent discharge of oil based on proof of civil, rather than
criminal negligence. Hazelwood relies on Speidel v. State, 460
P.2d 77, 80 (Alaska 1969), where the Alaska Supreme Court held it
impermissible to convict a person of a crime for acting
"unwittingly or inadvertently or negligently," or for a "simple
neglectful or negligent" act. The court indicated the need for
some greater awareness or consciousness of wrongdoing.
Subsequently, in Alex v. State, 484 P.2d 677, 681 (Alaska 1971),
the court found it "imperative . . . that an accused's act be
other than simply inadvertent or neglectful."
The state, for its part, points to cases in which this
court has approved simple negligence as an appropriate culpable
mental state for a criminal act. See Beran v. State, 705 P.2d
1280, 1284 (Alaska App. 1985); Reynolds v. State, 655 P.2d 1313,
1315 (Alaska App. 1982). The state argues that there is nothing
per se impermissible about simple negligence as a culpable mental
state for criminal misconduct, and it urges us to construe former
AS 46.03.790(a) as requiring nothing more.
Cases such as Beran and Reynolds, however, stand merely
for the proposition that "simple negligence would suffice to
impose [criminal] liability for a commercial violation in a
heavily regulated industry." Gregory v. State, 717 P.2d 428, 431
(Alaska App. 1986). We have recently emphasized that "our
willingness to adopt negligence as the culpable mental state for
. . . [such] offenses indicates that this standard should be
applied only for offenses dealing with heavily regulated
activities for which permits or licenses are required." Cole v.
State, 828 P.2d 175, 178 (Alaska App. 1992). Even as to
regulated activities that require licenses but are not
commercial, such as driving, we have held that, "in the absence
of legislative direction, something greater than proof of simple
negligence should be required for conviction" of a criminal
offense. Gregory, 717 P.2d at 431.
The offense for which Hazelwood was convicted --
negligent discharge of oil -- was unquestionably a crime: it was
classified as a class B misdemeanor and, upon conviction, entails
the possibility of incarceration. See AS 46.03.740; former AS
46.03.790(a); AS 12.55.135(b). Although Hazelwood's conduct
actually involved his participation in a commercial, heavily
regulated activity for which he was required to be licensed, the
statute under which Hazelwood was convicted does not restrict
itself to this type of commercial activity; rather, it subjects
to criminal penalties all members of the general public who
discharge a broad range of common, though potentially hazardous,
substances anywhere "upon the waters or land of the state except
in quantities, and at times and locations or under circumstances
and conditions as the department may by regulation permit." AS
46.03.740. It is the nature of the statute, and not of
Hazelwood's activity, that we are concerned with here, for a
statute cannot be construed to have different meanings for
different defendants. Civil negligence cannot be relied on to
define "standard criminal offenses such as this." Cole, 828 P.2d
at 179. To convict Hazelwood of a crime, the jury should have
been required to find him criminally negligent.
We thus hold that the trial court erred in instructing
the jury on civil, rather than criminal negligence. This error
cannot be deemed harmless, because it resulted in the jury being
given an incorrect definition of an essential element of the
offense. Hazelwood's conviction must therefore be reversed, and
his case remanded for a new trial.17
CONCLUSION
For the foregoing reasons, except as to the blood-
alcohol evidence and Hazelwood's own statements, we AFFIRM the
superior court's inevitable discovery findings. We hold that
Hazelwood's prosecution is not barred by immunity. However,
because the jury was instructed on civil, rather than criminal
negligence, we REVERSE the conviction and remand for a new trial.
_______________________________
*Sitting by assignment made pursuant to article IV, section 16 of the Alaska
Constitution.
1. At the time of the alleged offense, paragraph (b)(5) of 33 U.S.C. ' 1321
required "Any person in charge of a vessel" such as the Exxon Valdez to
notify the government immediately of "any discharge of oil or a hazardous
substance from such vessel"; the paragraph went on to confer use and
derivative use immunity on any person who complied with this requirement:
Notification received pursuant to this paragraph or information obtained by
the exploitation of such notification shall not be used against
any such person in any criminal case, except a prosecution for
perjury or for giving a false statement.
Id.
2. The supreme court also commented:
The court of appeals appears to have weighed whether Alaska law, rather
than federal law, should recognize inevitable discovery in immun
ity cases. See Hazelwood, 836 P.2d at 951 ("For present
purposes, we may assume that the inevitable discovery doctrine
would be adopted in Alaska in appropriate cases...."). The
court's reliance on Justice Marshall's dissent in Kastigar, see
Hazelwood, 836 P.2d at 952 (quoting Kastigar, 406 U.S. at 470-71,
92 S.Ct. at 1669-70 (Marshall, J., dissenting)), would be
appropriate had the court of appeals been deciding Alaska law.
But in this case we are interpreting federal law, and thus are
bound by the acceptance of the inevitable discovery rule in Nix
and the constitutionality of use and derivative use immunity in
Kastigar.
State v. Hazelwood, 866 P.2d at 833 n.12.
3. The supreme court also directed us to address, as necessary, other
unresolved issues that Hazelwood originally raised on appeal. Id. at 834
n.15.
4. On remand, citing State v. Gonzalez, 853 P.2d 526 (Alaska 1993), Hazelwood
has argued as a preliminary matter that this court should apply the Alaska
Constitution to hold that he is entitled to transactional immunity. We
decline to do so for two independent reasons.
In originally considering Hazelwood's appeal, neither this court nor the
supreme court interpreted his arguments to incorporate an independent state
constitutional claim on this ground. See Hazelwood v. State, 836 P.2d at
946 n.3; State v. Hazelwood, 866 P.2d at 833 n.12. We conclude that
Hazelwood's cursory mention in his original opening brief that the Alaska
Constitution is "at least as extensive [as the federal constitution], and
is also relied upon in this appeal" is not sufficient to preserve his
current state constitutional argument. See Wren v. State, 577 P.2d 235,
237 n.2 (Alaska 1978); see also State v. Wassillie, 606 P.2d 1279, 1281 n.7
(Alaska 1980). Plain error review might be appropriate if the statutory
grant of immunity in this case were clearly necessary to avoid
constitutional problems arising from the reporting requirement. Cf. In re
L.A.M., 727 P.2d 1057, 1059 (Alaska 1986). However, the federal reporting
requirement in this case applies to participants in a heavily regulated,
licensed activity; accordingly there is substantial doubt as to whether the
reporting requirement implicated Hazelwood's constitutional right against
self-incrimination. See, e.g., Bernard Penner, Immunity and Oil Spill
Reporting Statutes, 3 U. Balt. J. Envtl. L. 34 (1993). We note that, since
the grounding of the Exxon Valdez, the reporting statute has been amended
to delete the derivative use immunity provision. See 33 U.S.C.
' 1321(b)(5) (Supp. II 1990) ("Notification received pursuant to this
paragraph shall not be used against any such natural person in any criminal
case, except the prosecution for perjury or for giving a false
statement."). In sum, the interests of justice do not call for plain error
review of Hazelwood's state constitutional claim.
In any event, in reversing this court's decision, the supreme court
unequivocally held that "in this case we are interpreting federal law, and
thus are bound by the acceptance of the inevitable discovery rule in Nix
and the constitutionality of use and derivative use immunity in Kastigar."
State v. Hazelwood, 866 P.2d at 833 n.12. The court further made it clear
that: "The scope of immunity under 33 U.S.C. ' 1321(b)(5), and its
constitutionally permissible exceptions, are issues of federal law. Thus
United States Supreme Court precedent, rather than our own precedent,
controls our resolution of this case." Id. at 829 n.1. The supreme
court's decision on this point stands as the law of the case; we interpret
that decision as foreclosing this court from adjudicating the merits of
Hazelwood's state constitutional claim.
Hazelwood has alternatively argued that, even if this court rejects his
state constitutional claim, the Alaska Supreme Court's decision in Gonzalez
in effect precludes the state from establishing inevitable discovery in
this case. Hazelwood points out that in deciding that the Alaska
Constitution requires transactional immunity, Gonzalez expressly concluded
that use and derivative use immunity can never adequately protect against
the potential danger of nontestimonial use of immunized statements. 853
P.2d at 532. Hazelwood thus reasons that under Gonzalez, the danger of
nontestimonial use must always preclude a finding of inevitable discovery.
But Hazelwood's primary and alternative arguments are simply the same top
spun in different directions. These arguments both revolve around the same
fundamental premise: that the Alaska Constitution assures Hazelwood
protection against use and derivative use immunity. As indicated above, if
Hazelwood's arguments are to be addressed at all, the Alaska Supreme Court
must address them.
5. See also United States v. Seals, 987 F.2d 1102, 1107-08 (5th Cir. 1993);
United States v. Lamas, 930 F.2d 1099, 1102-04 (5th Cir. 1991); United
States v. Evans, 848 F.2d 1352, 1358 (5th Cir. 1988); United States v.
Whitehorn, 829 F.2d 1225, 1231 (2d Cir. 1987); United States v. Hernandez-
Cano, 808 F.2d 779, 783-84 (11th Cir. 1987); United States v. Owens, 782
F.2d 146, 152-53 (10th Cir. 1986); United States v. Cherry, 759 F.2d 1196,
1205-06 (5th Cir. 1985); United States v. Finucan, 708 F.2d 838, 844 (1st
Cir. 1983).
6. See also United States v. Zapata, 18 F.3d 971, 978-79 (1st Cir. 1994);
United States v. Perea, 986 F.2d 633, 644 (2d Cir. 1993); United States v.
George, 971 F.2d 1113, 1121-22 (4th Cir. 1992); United States v. Horn, 970
F.2d 728, 732 (10th Cir. 1992); United States v. Mancera-Londono, 912 F.2d
373, 375 (9th Cir. 1990); United States v. McConnell, 903 F.2d 566, 570
(8th Cir. 1990); United States v. Gorski, 852 F.2d 692, 696 (2d Cir. 1988);
United States v. Boatwright, 822 F.2d 862, 864 (9th Cir. 1987); United
States v. Andrade, 784 F.2d 1431, 1433 (9th Cir. 1986).
7. See also Davis v. State, 422 S.E.2d 546, 551 (Ga. 1992) (describing
required showing as one of "inevitable, routine procedure").
8. See LaFave, supra, at 248-50.
9. See, e.g., United States v. Ornelas-Ledesma, 16 F.3d 714, 721-22 (7th Cir.
1994); United States v. Infante-Ruiz, 13 F.3d at 504; United States v.
Thomas, 955 F.2d 207, 211 (4th Cir. 1992); United States v. Gorski, 852
F.2d at 696; United States v. Owens, 782 F.2d at 153; United States v.
Finucan, 708 F.2d at 844; United States v. Allen, 436 A.2d 1303, 1310-11
(D.C. 1981).
10. Two federal cases specifically holding the doctrine applicable to evidence
derived from immunized statements, United States v. Streck, 958 F.2d 141
(6th Cir. 1992), and United States v. Kiser, 948 F.2d 418 (8th Cir. 1991),
are unilluminating. In neither case does the issue of extending the
inevitable discovery doctrine to an immunity case appear to have been
actively contested. Neither case contains any explanation of the court's
reasons for deciding to apply the doctrine to an immunity situation. Both
involve circumstances in which the independent investigative efforts that
rendered lawful discovery inevitable had been undertaken before immunity
was granted, and in both cases the disputed evidence was evidently also
admissible under the independent source rule.
11. Moreover, the record indicates additional uncertainty as to who if anyone
might have taken the disputed blood sample if any appreciable delay had
occurred. As we have already noted, no one capable of drawing blood
samples was initially on board the vessel. A qualified person, Coast Guard
Corpsman Scott Conner, was eventually found in Valdez and flown aboard by
helicopter. By the time authorities conducting the investigation managed
to locate Conner, however, Conner was at the Valdez airport preparing to
board a flight to Anchorage; less than an hour remained before his
scheduled departure. There is nothing in the record to indicate the
availability of any other qualified persons who might have substituted for
Conner if he had departed for Anchorage before being located.
12. As we point out in connection with our discussion of the admissibility of
Hazelwood's statements, see text, infra at 23, because Hazelwood was aware
that he was entitled to immunity from prosecution by virtue of his
immediate report and thus had no reason to fear criminal prosecution, he
stood to lose little by being fully cooperative when he dealt with
investigators who responded to his report. Had the investigation been
initiated independently of the immediate report, Hazelwood would have had
no reason to consider himself immune from prosecution; consequently, he
might not have been motivated to be as cooperative with investigators as he
was when he believed himself immune. In particular, the record indicates
that Hazelwood helped investigators locate urine sampling kits, yet nothing
in the record provides assurance that he would have assisted in the same
manner had he not believed himself immune from prosecution.
13. Given that this case must be remanded for a new trial, we believe it
appropriate to emphasize that our disposition of the inevitable discovery
issues presented in this case is based on the factual record as it now
stands. At the time of the suppression hearing in the superior court, the
inevitable discovery doctrine had never been adopted in Alaska, and no
appellate decision by this court or the Alaska Supreme Court had addressed
the doctrine except in passing. Because no ground rules for proof of
inevitable discovery had been adopted in Alaska, the parties were left with
no clear guidelines for structuring their presentation of evidence at the
suppression hearing. We recognize that such factors may well have
influenced the presentation of evidence at the original suppression hearing
and may have resulted in a record that, in retrospect, is incomplete or
misleading. Our ruling is not meant to preclude either party from
requesting the superior court to hear additional evidence on the inevitable
discovery issue. In the event of a request by either party to reopen the
issue, the determination of whether and to what extent additional evidence
should be received will be a matter for the superior court's discretion.
We do not mean to suggest that the superior court must permit reopening of
the issue if, in its view, both parties have had a full and fair
opportunity to address it.
14. Subsection (b) of former AS 46.03.790 provided that a person who
knowingly violated the chapter was guilty of a class A misdemeanor. Former
AS 46.03.790 was rewritten in 1990 to punish as a class C felony an
unlawful discharge of 10,000 barrels or more of oil; a lesser discharge
amounts to a class A misdemeanor. Ch. 141, '' 2-5, SLA 1990. The
rewritten statute now specifically provides that criminal negligence is the
culpable mental state for either offense. AS 46.03.790(d).
15. The state maintains that use of the word "negligently" in AS 46.03.790(a)
creates no ambiguity and, on its face, constitutes a reference to ordinary
civil negligence rather than to criminal negligence. The state reasons
that, because subsection (a) was enacted when Alaska's revised criminal
code was already in effect, the legislature would have used the term
"criminal negligence" if it meant to adopt a culpable state more stringent
than civil negligence. We find this argument unpersuasive in context.
While the use of the word "negligently" in a setting where the statutorily
defined term "criminal negligence" would normally apply might indeed
signify an intent to adopt civil rather than criminal negligence, the term
"criminal negligence" set forth in AS 11.81.900(a)(4) is by its own
definition limited to the provisions of the revised criminal code. The
definition is inapplicable to Title 46. For this reason, the legislature's
use of "negligently," as opposed to "with criminal negligence," in Title 46
cannot in itself be taken as unambiguous evidence of its intent to adopt
civil negligence rather than criminal negligence. Moreover, we find
nothing in the context or legislative history of AS 46.03.790(a) to support
the state's contention that the word "negligently" was meant as a reference
to civil negligence. In these circumstances, the unadorned reference to
negligence creates an ambiguity that must be resolved through statutory
interpretation.
16. The Alaska Pattern Jury Instruction (Criminal) on criminal negligence thus
provides:
A person acts with "criminal negligence" with respect to a
[result][circumstance] described by the law when the person fails
to perceive a substantial and unjustifiable risk that [the result
will occur][the circumstance exists]. The risk must be of such a
nature and degree that the failure to perceive it constitutes a
gross deviation from the standard of care that a reasonable
person would observe in the situation. Criminal negligence is
something more than the slight degree of negligence necessary to
support a civil action for damages and is negligence of a degree
so gross as to be deserving of punishment.
17. Our disposition of this case makes it unnecessary to consider Hazelwood's
sentencing argument.
