State of Alaska av. Steven P. Case (12/13/96) ap-1506
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correction before publication in the Pacific
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THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Court of Appeals No. A-5968
Appellant, ) Trial Court No. 1SI-S95-134CR
)
v. ) O P I N I O N
)
STEVEN P. CASE, )
)
Appellee. ) [No. 1506 - December 13, 1996]
______________________________)
Appeal from the Superior Court, First Judicial
District, Sitka, Michael A. Thompson, Judge.
Appearances: James P. Doogan, Jr., Assistant
District Attorney, Harry L. Davis, District
Attorney, Fairbanks, and Bruce M. Botelho,
Attorney General, Juneau, for Appellant.
James W. McGowan, Sitka, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
COATS, Judge.
MANNHEIMER, Judge, concurring.
A grand jury indicted Sitka Police Sergeant Steven P.
Case for assault in the second degree, a class B felony, and
tampering with public records in the first degree, a class C
felony. AS 11.41.210(a); AS 11.56.815(a). Case filed a motion to
dismiss the indictment. Superior Court Judge Michael A. Thompson
granted Case's motion. The state has appealed to this court. We
reverse.
On November 15, 1994, Sitka Police Department (SPD)
Officers Teague Widmier and Mark Haywood arrested Melinda Wright
for misdemeanor assault and criminal trespass at a local bar.
Wright was very intoxicated and became verbally abusive towards
both officers during booking procedures at the police station.
Sergeant Steven Case, the shift supervisor, began arguing with
Wright, who threatened to kill Case, his family, and his dog. She
said, "If I wasn't handcuffed to this bar, I'd knock your head
off." Case replied, "Well, if you weren't handcuffed to the bar,
I'd knock yours off." Case threatened to have the other officers
leave the room so that he and Wright could "deal with this" without
witnesses. Case purposely bumped Wright twice with his shoulder,
causing her to stumble.
As Officer Widmier escorted Wright from the booking area
to the jail cell, she continued to yell at Case. Case, without
being requested by Widmier, grabbed Wright's free arm and applied
leverage to it, forcing her head down. Case and Widmier then
escorted her to a cell. Widmier and Case released Wright in her
cell, at which point Wright and Case continued to argue. Wright
then slapped Case, knocking off his glasses. As Widmier bent down
to pick up the glasses, Case grabbed Wright in a headlock and
propelled her headfirst into the concrete wall. Case and Wright
then fell to the floor, with Case on top. Case grabbed Wright and
banged the back of her head and shoulders against the wall again
while stating "Do you want to try that again?" at least twice.
Officer Haywood rushed in and had to forcibly pull Case off of
Wright. Wright was taken to the hospital where a doctor examined
her and concluded that there was no evidence of serious injury.
Widmier and Haywood reported the incident to Lt. Nick
Ward of SPD the next morning when he arrived. Case wrote a report
claiming that Wright grabbed and bent his thumb and pulled him into
the wall of the jail rnal investigation during which he interviewed
Widmier, Haywood, Wright, the dispatcher on duty, and Case. Lt.
Ward concluded that Case acted improperly and recommended his
termination. SPD Chief John Newell agreed and forwarded the
investigation to the municipal attorney. Lt. Ward also notified
the Juneau District Attorney's Office, prompting the Alaska State
Troopers to begin a criminal investigation. In early 1995, after
the Troopers' investigation was completed, the state presented the
matter to a grand jury. The grand jury indicted Case for assault
in the second degree and tampering with public records in the first
degree.
Case moved to suppress statements which he made to Lt.
Ward during the administrative investigation. He argued they were
compelled statements which were inadmissible against him under
Garrity v. New Jersey, 385 U.S. 493 (1967). Case then moved to
dismiss the indictment, contending that since the state had
presented these statements to the grand jury, the state had used
inadmissible evidence to obtain the indictment. He contended that
since these statements had been obtained in violation of his
constitutional rights, Judge Thompson should apply the standard set
forth in Chapman v. California, 386 U.S. 18 (1967), which requires
the court to apply a harmless beyond a reasonable doubt test.
The state did not contest the fact that Sergeant Case's
statements to Lt. Ward during the administrative investigation were
compelled statements which are generally not admissible. However,
the state argued that Case's statements to Lt. Ward could be
considered exculpatory evidence which the state was obligated to
present to the grand jury. Frink v. State, 597 P.2d 154, 164-65
(Alaska 1979) (holding the prosecutor is required to present
exculpatory evidence to the grand jury). The state pointed out
that it had contacted Case's attorney before presenting the case to
the grand jury and had offered to present the statements which Case
made to Lt. Ward to the grand jury if Case would waive any
constitutional claims. When Case did not respond, the state
contended that it was in an impossible dilemma: if it presented
Case's statements to Lt. Ward to the grand jury, Case would claim
that the evidence was inadmissible; if the state did not present
this evidence, Case would claim that the state had not presented
exculpatory evidence to the grand jury.
In his decision addressing Case's pretrial motions, Judge
Thompson granted Case's motion to suppress the use of statements
which he made to Lt. Ward during the administrative investigation,
finding that this was required under Garrity v. New Jersey, and
noting that the state did not oppose this motion. Judge Thompson
then turned to Case's motion to dismiss the indictment. He
concluded that Case's statements to Lt. Ward during the
administrative investigation were not legally admissible at trial
and therefore the state should not have presented this evidence to
the grand jury. Alaska R. Crim. P. 6(r)(1). He found that þthere
is no doubt that sufficient otherwise admissible evidence was
introduced to support the indictment.þ He concluded, however, that
since the inadmissible evidence was evidence which the state had
obtained in violation of Case's constitutional rights, the court
could only uphold the indictment if it found that admission of the
evidence was harmless beyond a reasonable doubt, applying the
Chapman harmless error test. Applying this test, he concluded that
the indictment should be dismissed.
In Stern v. State, 827 P.2d 442, 445-46 (Alaska App.
1992), we discussed the standard which a court should apply in
determining whether the admission of improper evidence before the
grand jury requires the court to dismiss the indictment:
[W]hen a defendant proves that the grand jury
heard improper evidence, the superior court
must engage in a two-part analysis. The
superior court first subtracts the improper
evidence from the total case heard by the
grand jury and determines whether the
remaining evidence would be legally sufficient
to support the indictment. If the remaining
evidence is legally sufficient, the court then
assesses the degree to which the improper
evidence might have unfairly prejudiced the
grand jury's consideration of the case. The
question the court must ask itself is whether,
even though the remaining admissible evidence
is legally sufficient to support an
indictment, the probative force of that
admissible evidence was so weak and the unfair
prejudice engendered by the improper evidence
was so strong that it appears likely that the
improper evidence was the decisive factor in
the grand jury's decision to indict.
(Citations omitted.)
On appeal, Case argues that Judge Thompson correctly
applied the Chapman beyond a reasonable doubt standard in
determining whether to dismiss the indictment. However, Case has
not cited any authority directly supporting his argument, and all
of the authority of which we are aware supports the application of
the standard which we set out in Stern. The Chapman test applies
only where an error of constitutional dimension has occurred at
trial. (EN1) We therefore apply the Stern standard to this case.
Under Stern, our first task is to subtract the improper evidence
from the total case heard by the grand jury to determine whether
the remaining evidence would be legally sufficient to support the
indictment. Judge Thompson's finding that þthere is no doubt that
sufficient otherwise admissible evidence was introduced to support
the indictmentþ appears to be uncontested. Therefore, the only
remaining question is whether þthe probative force of the
admissible evidence was so weak and the unfair prejudice engendered
by the improper evidence was so strong that it appears likely that
the improper evidence was the decisive factor in the grand jury's
decision to indict.þ A review of the grand jury transcript
convinces us that Judge Thompson erred in dismissing the
indictment. As we set out in the statement of facts, the evidence
against Case was primarily eyewitness testimony from his fellow
police officers. It seems clear that the grand jury would make its
decision to indict based upon this testimony. Not surprisingly, in
his administrative interview with Lt. Ward, Case gave a version of
the encounter which generally appears favorable to him. Case did
admit making statements, however, in which he admitted becoming
very agitated at Wright. The various eyewitnesses testified either
to these statements or to other similar statements which Case made
which showed that he became extremely agitated. We therefore do
not believe that Case's statements to Lt. Ward could properly be
considered þthe decisive factor in the grand jury's decision to
indict.þ We accordingly conclude that Judge Thompson erred in
ordering the indictment against Case to be dismissed.
REVERSED.MANNHEIMER, Judge, concurring.
I write separately to explain in more detail why I
conclude that the trial judge erred by applying a "harmless beyond
a reasonable doubt" test to this grand jury error.
The principle behind any harmless-error rule (no matter
how formulated) is the idea that the presence of error, by itself,
is not sufficient to invalidate the result reached in a judicial
proceeding. Error having been proved, the reviewing court must
still determine whether the losing side was prejudiced by this
error. Love v. State, 457 P.2d 622, 630 (Alaska 1969).
When error arises in a criminal prosecution from a violation of the
defendant's rights under the United States Constitution, federal law requires reversal of
the defendant's conviction unless the government shows that the error is harmless beyond
a reasonable doubt. Chapman v. California, 386 U.S. 18, 23-24; 87 S.Ct. 824, 827-28;
17 L.Ed.2d 705, 710-11 (1967). But the states are free to apply their own harmless-
error rules when an error does not violate a defendant's federal constitutional rights.
Love, 457 P.2d at 631.
The question, then, is whether a criminal defendant has a federal
constitutional right to require the exclusion of illegally obtained evidence from a grand
jury proceeding. "Although the Supreme Court has not answered this precise question,
there is little doubt from the manner in which the Court has dealt with very similar issues
that the answer is no." Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth
Amendment (3rd ed. 1996), sec. 1.6(c), Vol. 1, p. 163. See United States v. Calandra,
414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974) (indicating that a defendant is not
entitled to challenge an indictment on the ground that the grand jury heard evidence
obtained in violation of the Fourth Amendment); United States v. Blue, 384 U.S. 251,
86 S.Ct. 1416, 16 L.Ed.2d 510 (1966) (indicating that a defendant is not entitled to
challenge an indictment on the ground that the grand jury heard evidence obtained in
violation of the Fifth Amendment privilege against self-incrimination); Lawn v. United
States, 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958) (indicating the same). See
also Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed.2d 397 (1956)
(upholding an indictment based entirely on hearsay evidence against a challenge under
the confrontation clause of the Fifth Amendment).
Thus, even though evidence in this case was obtained in violation of Case's
privilege against self-incrimination, the introduction of that evidence at a grand jury
proceeding (as distinct from a criminal trial) did not violate Case's federal constitutional
rights. This being so, the courts of this state are free to use Alaska's own standard of
harmless error. The standard for determining the harmfulness or harmlessness of grand
jury error is described in Stern v. State, 827 P.2d 442, 445-46 (Alaska App. 1992).
Use of the Stern test to assess grand jury errors makes sense even when the
error is of constitutional dimension. When a court assesses whether an error was
prejudicial, the essential question to be asked is whether the error might have affected
the result. "[T]he pivotal question is what the error might have meant to the jury."
Love, 457 P.2d at 630.
In judging whether a verdict might have been different, one important factor
to consider is the degree of proof required by law to sustain that verdict. To return a
guilty verdict in a criminal prosecution, the trier of fact (whether judge or jury) must be
satisfied that the government has proved its case beyond a reasonable doubt. On the
other hand, the government's burden at grand jury is substantially lower. See Sheldon
v. State, 796 P.2d 831, 837 (Alaska App. 1990) (a grand jury
"should not return an indictment unless ... satisfied that the
evidence presented, if unexplained or uncontradicted, establishe[s]
a probability of [the defendant's] guilt").
Because of this difference in the standards of proof, the power of a given
error to alter the verdict in these two types of proceedings is likewise different. An error
may be prejudicial in a criminal trial (where a reasonable possibility of innocence is
sufficient to acquit the defendant) but nevertheless be harmless in a grand jury context
(where the same reasonable possibility of innocence is not sufficient to defeat an
indictment).
Thus, the potential prejudice of erroneously admitted evidence at grand jury
should be judged under the standard described in Stern. This is the standard that the
superior court should have applied in the present case.
ENDNOTES:
1. For example, in Cole v. State, 923 P.2d 820 (Alaska App.
1996), we concluded that the defendant's confession was
involuntary. We reversed Cole's conviction because þwe are not
persuaded that admission of Cole's confession at trial was harmless
beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18
(1967).þ However, we dismissed Cole's indictment because we found
that his confession had þ'an overriding influence on the [grand]
jury's decision.' See Boggess v. State, 783 P.2d 1173, 1176
(Alaska App. 1989).þ Cole, 923 P.2d at 832 n.20. Thus, in Cole,
we applied the Chapman standard in deciding whether Cole's
confession at his trial was harmless error, but ordered the
indictment dismissed because we found that Cole's confession
probably would have had an overriding influence on the grand jury's
decision.
