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Taylor v. State (3/19/99) ap-1625
NOTICE: The text of this opinion can be corrected before the opinion is published in the
Pacific Reporter. Readers are encouraged to bring typographical or other formal errors to
the attention of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: twhitman@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JERRY WAYNE TAYLOR, )
) Court of Appeals No. A-6872
Appellant, ) Trial Court Nos. 3AN-96-4971 &
) 3AN-96-6299 Cr
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1625 - March 19, 1999]
______________________________)
Appeal from the Superior Court, Third Judicial
District, Anchorage, Eric T. Sanders, Judge.
Appearances: Larry Cohn, Anchorage, for
Appellant. Douglas H. Kossler, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and Bruce
M. Botelho, Attorney General, Juneau, for
Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Under Alaska Criminal Rule 38(a), a criminal defendant
has a right to be present "at every stage of the trial". When a
witness in a criminal trial asserts a privilege not to testify, may
the trial judge allow the witness to explain the basis of the
privilege in an ex parte hearing? Or does Criminal Rule 38(a)
require the defendant's presence at such a hearing and guarantee
the defendant's right to cross-examine the witness regarding the
claim of privilege? For the reasons explained in this opinion, we
hold that, notwithstanding Criminal Rule 38(a), a trial judge has
the authority to hear the witness's explanation ex parte.
Jerry Wayne Taylor was indicted for three separate
assaults on his wife, Barbara. These assaults were alleged to have
occurred on June 30, July 1, and August 15, 1996. Taylor was also
indicted for assaulting a police officer and a hotel security guard
who tried to stop Taylor from assaulting his wife on August 15th.
Finally, Taylor was indicted for assaulting a police officer in a
separate incident on July 1, 1996. This assault occurred at
Providence Hospital, where Taylor had gone in search of his wife.
When a police officer confronted Taylor, Taylor aimed a handgun at
the officer.
These various charges were set for trial in front of
Superior Court Judge Eric T. Sanders, sitting without a jury. But
when Barbara Taylor was called to the stand, she declared that she
would refuse to testify. Through an attorney, Ms. Taylor claimed
that her testimony would tend to incriminate her. When the State
opposed this claim of privilege, Ms. Taylor requested an ex parte
hearing to explain why she feared self-incrimination.1 Jerry Taylor
objected to his wife's request. Taylor claimed that the proposed
hearing would be a critical stage of the proceedings against him, thus
entitling him to be present when his wife explained her claim of
privilege. Taylor also asserted that his right of confrontation
entitled him to cross-examine his wife concerning her claim of
privilege.
Judge Sanders overruled Taylor's objections and allowed
Barbara Taylor to present her claim of privilege ex parte. After
hearing Barbara Taylor's ex parte presentation, Judge Sanders ruled
that Ms. Taylor's claim of privilege was valid and that she could
not be compelled to testify.
Following this ruling, the State dismissed two counts of
the indictment (the assaults on Barbara Taylor that were alleged to
have occurred on June 30th and July 1st). Judge Sanders then held
a bench trial on the charges stemming from the August 15th incident
(the assaults on Barbara Taylor, the security guard, and the police
officer). The judge acquitted Taylor of assaulting the security
guard, but he found Taylor guilty of assaulting his wife and the
police officer. In a separate trial, Judge Sanders found Taylor
guilty of assaulting the police officer at Providence Hospital.
On appeal, Taylor contends that Judge Sanders should have
allowed him to attend and participate in the hearing concerning his
wife's claim of privilege. He asserts that his presence at this
hearing was guaranteed by Alaska Criminal Rule 38(a) as well as his
constitutional rights of due process and confrontation.2 Taylor
also contends that Judge Sanders failed to tape record this
hearing, thus preventing meaningful review of Taylor's claim of
error.3
Taylor's contention regarding the superior court's
failure to tape record the proceeding is easy to resolve. Judge
Sanders's in-court clerk did make a tape recording of the ex parte
hearing. This court has a copy of the tape, and we have reviewed
it as part of our deliberations in this case.
Taylor's contention regarding the right of confrontation
is likewise easy to resolve. Article I, Section 11 of the Alaska
Constitution guarantees criminal defendants the right "to be
confronted with the witnesses against [them]". But Barbara Taylor
gave no testimony against her husband. Indeed, Ms. Taylor's
successful assertion of her privilege against self-incrimination
guaranteed that she would not testify against her husband. Taylor
himself concedes (in his brief to this court) that "the defense
hoped that the court [would accept Barbara Taylor's claim of
privilege and] would not compel [her] to testify against her
husband." It would thus appear that Judge Sanders's decision to
hear Barbara Taylor's claim of privilege ex parte did not involve
Jerry Taylor's right of confrontation.4
Taylor argues, however, that a potential confrontation
problem arises under the facts of his case. The distinguishing
features of his case, Taylor asserts, are (1) that the witness
claiming the privilege was his wife, and (2) that the judge
deciding the claim of privilege was also the trier of fact at
Taylor's trials.
Taylor points out that, when his wife explained how her
proposed testimony might incriminate her, it is at least
conceivable that she told Judge Sanders that she had engaged in
criminal conduct jointly with Taylor. Taylor argues that if Judge
Sanders was in fact exposed to prejudicial information about Taylor
during the ex parte hearing, this might have affected the judge's
deliberations when he rendered his verdicts at the end of Taylor's
bench trials. Thus, Taylor concludes, he was entitled to be
apprised of his wife's allegations and to confront his wife
concerning them.
We find that we need not resolve this issue. We have
examined the tape of the proceedings, and the prejudice that Taylor
feared did not occur. At this hearing, Barbara Taylor's attorneys
gave only a vague description of her potential criminal liability;
they provided no details of her conduct, and they made no
assertions about Taylor. These facts negate any potential claim
based on Taylor's right of confrontation.
We turn now to Taylor's remaining contentions: that
Judge Sanders violated Taylor's right to due process and his right
to be present guaranteed by Criminal Rule 38(a) when the judge
allowed Barbara Taylor to argue her claim of privilege ex parte.
One of the primary principles of Anglo-American criminal
procedure is that, after an indictment is returned, no stage of the
proceedings should take place in the defendant's absence.5 In
Alaska, this principle "is founded on the state constitutional
rights of the accused to due process [of law] and to confront the
witnesses against him."6
A defendant's right to be present during criminal
proceedings is codified in Alaska Criminal Rule 38(a). With
certain exceptions not pertinent here, Criminal Rule 38(a) requires
a defendant's presence "at every stage of the trial". In fact, the
Alaska Supreme Court has indicated that Rule 38(a) embodies a
broader right of presence than is conferred by the due process and
confrontation clauses of the Federal Constitution.7
The question presented in Taylor's appeal is whether a
defendant's right to be present at all proceedings must yield when
a witness asserts the privilege against self-incrimination and
wishes to explain the basis of their claim to the court in private.
There are, in fact, times when Alaska law authorizes a
court to conduct proceedings without the defendant. Some of these
exceptions are codified in Criminal Rule 38 itself. But another
exception, one more pertinent to the case at hand, is codified in
Alaska Evidence Rule 509(c).
Evidence Rule 509 is pertinent to Taylor's case because
it governs situations in which a party (the State) asserts the
right to keep certain information secret from another party. Rule
509 defines the government's privilege to withhold the identity of
an "informer" - a person who has furnished information relating to
a possible violation of the law or who is assisting an official
investigation into a possible violation of the law.8
Rule 509(c)(2) governs situations in which the informer's
testimony may be needed to insure that the underlying litigation is
fair. Upon request of a party, the court must determine whether
there is a reasonable possibility that the informer possesses
information necessary to a fair determination of the litigation.
If the court concludes that the informer's testimony is required,
then the government faces a choice: reveal the informer's
identity, or maintain this secret and forfeit the litigation.9
Rule 509(c)(3) governs situations in which the court may
need to know the informer's identity and background in order to
assess whether a search warrant was supported by probable cause
under the Aguilar-Spinelli test.10 If the court determines that
disclosure of this information is required, the State is authorized
to make the disclosure ex parte - that is, to the court alone.11
Both Rule 509(c)(2)(ii) and Rule 509(c)(3)(ii) provide
that, when a judge is assessing whether to require disclosure of
the informer's identity, the judge is authorized to conduct a
hearing and receive testimony outside the presence of the parties.
12 That is, even though a criminal defendant is generally entitled
to be present at all stages of the prosecution, these two sections
of Rule 509(c) allow the judge to examine witnesses outside the
defendant's presence and then rule on the State's claim of
privilege based on the witnesses' testimony.
The Commentary to Rule 509(c) recognizes that when a
judge conducts such an in camera hearing, it is conceivable that
the judge might fail to perceive all the ways in which an
informer's testimony might be relevant to deciding the merits of
the litigation.13 On the other hand, the Commentary also
recognizes that the informer's privilege would evaporate if this
speculative possibility (that the judge had somehow failed to
perceive the potential relevance of the informer's information)
were enough to require disclosure of the informer's identity to the
other party.14 The Commentary declares that the in camera inquiry
codified in Rule 509(c) is "calculated to accommodate the
conflicting interests involved".15
Somewhat surprisingly, Evidence Rule 509 stands alone in
its specification of the procedures for asserting and deciding a
claim of privilege. The underlying problem - how to explain a
claim of privilege without revealing privileged information -
presumably arises from time to time when people assert the other
codified evidentiary privileges, but the other evidence rules
contain no provisions similar to Rule 509(c)(2)-(3). The Evidence
Rules contain only one other reference to a court's authority to
hold ex parte hearings to resolve a claim of privilege, and that
reference is found in the Commentary to the Evidence Rules, not in
the rules themselves.
Evidence Rule 508 governs the trade secrets privilege.
Paragraph three of the Commentary to Rule 508 states that, when a
court is asked to assess whether information is a protected trade
secret, "[t]he most common technique is to take testimony in camera
with perhaps a requirement for sealed records. This preserves
secrecy while allowing the court to reach a decision on all the
facts."16
Other than these two references in the Evidence Rules,
the Alaska Rules of Court contain only scattered authority for
in camera proceedings at which a criminal defendant is not present.
The most notable is found in Alaska Criminal Rule 16(d), the rule
authorizing the courts to deny or place conditions on pre-trial
discovery in criminal cases. Under Criminal Rule 16(d)(6), a court
is empowered to hear such requests ex parte (whether the request is
made by the government or the defense).
But while the rules contain only sparse explicit
authority for such ex parte proceedings, the Alaska Supreme Court
and this court repeatedly have acknowledged a trial judge's power
to resolve claims of privilege by holding in camera hearings at
which privilege-claimers are allowed to present their arguments ex
parte.
In Capital Information Group v. Office of the Governor17,
the Governor of Alaska asserted the deliberative process privilege
in opposition to a request for disclosure of documents. The
supreme court approved the trial court's decision to examine the
documents in camera when assessing the claim of privilege.18 In
Matter of Mendel19, the supreme court directed trial judges to
conduct ex parte hearings to resolve claims of the attorney-client
privilege and the attorney work-product privilege.20 And in
Central Construction Co. v. Home Indemnity Co.21, the supreme court
approved an ex parte proceeding as the proper mechanism to resolve
a party's claim that an ostensible attorney-client privilege should
be invalidated under the "crime or fraud" exception.22
These cases were all civil cases; for that reason, it
might be argued that these cases do not really answer the question
of how to weigh a privilege-claimer's need for confidentiality
against a criminal defendant's right to be present. But the Alaska
appellate courts have been just as ready to endorse ex parte
proceedings in criminal cases.
In Braham v. State23, the State opposed a defense request
for disclosure of information concerning a witness's relationship
with the police. At an ex parte hearing, the prosecutor informed
the trial judge that the witness was working as an undercover agent
in an ongoing investigation; the prosecutor claimed that premature
disclosure of this relationship would jeopardize the success of the
investigation.24 Although the supreme court ultimately rejected
the trial judge's resolution of this issue, the court approved the
procedure specified in Criminal Rule 16(d)(6) - the rule which
allows the government to present its claim to the court ex parte.25
Similarly, in Gunnerud v. State26, where the State
claimed that disclosure of a witness's psychiatric records would
constitute an unwarranted infringement of her privacy, the supreme
court approved the trial judge's decision to review the records
privately to assess whether they were relevant to the defendant's
case.27 Although the supreme court did not cite the Commentary to
Evidence Rule 509(c), the court's decision echoes the policy
embodied in that commentary. It is conceivable that a judge
reviewing a witness's psychiatric records might fail to perceive
all the ways in which these records might be relevant to the
defendant's case. It is possible that a defense attorney, given
access to the records, might be able to convince an otherwise
unconvinced judge that the records were relevant. But if the law
required disclosure of confidential records based on this
possibility, witnesses would have no privacy. Thus, the ex parte
inquiry approved in Gunnerud was "calculated to accommodate the
conflicting interests involved".28
In Balentine v. State29, this court followed the supreme
court's lead and upheld a trial judge's decision to deny a defense
request for disclosure of certain documents relating to the "Crime
Stoppers" program. The trial judge allowed the State to argue the
matter ex parte and, after examining the documents in camera, the
judge concluded that they were not relevant to the defense. This
court ruled that "the trial court followed the correct procedure".
30
Thus, when a court is called upon to decide a claim of
privilege, both the Alaska court rules and various Alaska appellate
decisions endorse the trial court's authority to allow the
privilege-claimer to argue the matter ex parte. This authority has
been recognized not only in civil cases but also in criminal cases,
where Criminal Rule 38(a) guarantees the defendant's right to be
present "at every stage of the trial".
We do not say that a trial judge must always hear an
assertion of privilege ex parte; the supreme court has held the
opposite.31 Nor do we say that the privilege-claimer has a right
to be heard ex parte. The supreme court has been chary of
recognizing such a right.32 In order to resolve Taylor's appeal,
we need decide only whether a trial judge has the discretion to
hear a witness's claim of privilege ex parte, outside the presence
of the defendant. We conclude that a judge has this authority, and
that such an ex parte hearing does not violate either Criminal Rule
38(a) or the due process clause of the Alaska Constitution.
A final caution: the fact that a person claims a
testimonial privilege does not automatically authorize a judge to
hold all related proceedings in private. A judge has the
discretion to allow the matter to be argued ex parte, but that
discretion must be exercised with due regard for the defendant's
right to be present during every stage of the trial, the victim's
co-extensive right to be present (now guaranteed by Article I,
Section 24 of the Alaska Constitution), and the public policy
codified in Administrative Rule 21(a) that, "[s]o far as prac-
ticable, all judicial business involving the trial of causes ...
shall be ... transacted in open court."
When deciding whether to allow a person to present a
claim of privilege ex parte, a judge must weigh these competing
interests: (1) the privilege-claimer's interest in explaining the
basis of the privilege without revealing protected information to
others, (2) the defendant's and the victim's interests in being
present during the various stages of the proceedings, and (3) the
public's interest in assuring that the justice system operates in
the public view and subject to public scrutiny.
At times, the basis (or lack of basis) for the claimed
privilege will be obvious from the existing record, and no ex parte
hearing will be needed. See, for example, the supreme court's
decision in Christensen v. NCH Corp..33 At other times, a court
will be unable to decide a claim of privilege unless the court
hears a confidential explanation of the basis for the claim or
unless the court conducts a private inspection of the assertedly
privileged materials. But even in such circumstances, a judge
should be mindful to conduct as much of the proceeding as
reasonably possible in open court and in the defendant's presence.
In the circumstances of this case, we find that the
superior court did not violate either Criminal Rule 38(a) or
Taylor's right to due process when the court allowed Barbara
Taylor's attorneys to explain ex parte the basis of her claimed
privilege against self-incrimination. Accordingly, we uphold
Taylor's convictions.
The judgement of the superior court is AFFIRMED.
Footnotes
1 The term "ex parte" refers to a proceeding in which a court
hears from only one litigant or one allied group of litigants;
other litigants with adverse interests are not allowed to
participate. See Black's Law Dictionary (6th ed. 1990), p. 576.
The term "in camera" refers to proceedings that are not open to
the public - for example, proceedings held in an anteroom, or in
the judge's chambers, or in the courtroom after the public is asked
to leave. Id. at 760.
The Alaska Rules of Court (and Alaska appellate cases)
sometimes use the term "in camera" in a second, somewhat different
sense - referring to a proceeding which the judge conducts
in private, with no party present. See, for instance, Evidence
Rule 509(c), which authorizes a judge to examine witnesses outside
the presence of both the State and the defense in order to resolve
the government's claim of the "informer" privilege.
Many ex parte hearings will be held in camera (that is, they
will be closed to the public) because, often, the rationale for
allowing a litigant to present their claim ex parte is to preserve
confidentiality. However, not all ex parte proceedings are closed
to the public. For instance, the superior and district courts are
authorized to hear ex parte petitions for domestic violence
restraining orders, see AS 18.66.110(a), but these petitions are
usually heard in open court.
By the same token, although in camera proceedings sometimes
involve ex parte motions or applications for relief, a great many
in camera proceedings are attended by all the litigants interested
in the outcome. For example, judges sometimes decide to hold in
camera proceedings when individual prospective jurors must be
questioned about sensitive matters, or when a litigant asks the
court to bar public dissemination of information that might
jeopardize the fairness of an upcoming trial if it became known to
the community. These hearings are held in camera, but the matter
is not litigated ex parte.
As illustrated by some of the cases discussed in this opinion,
judges and lawyers sometimes use the term "in camera" as a loose
substitute for "ex parte", especially when it is clear that the
whole purpose of closing the proceedings is to allow a litigant to
argue a matter ex parte. But these terms do refer to different
concepts. In the present appeal, Taylor does not challenge Judge
Sanders's decision to hear Barbara Taylor's assertion of privilege
in camera (that is, the judge's decision to exclude the public).
Rather, Taylor challenges Judge Sanders's decision to hear the
assertion of privilege ex parte (that is, the judge's decision to
exclude Taylor from the proceeding).
2 See Alaska Constitution, Article I, Sections 7 (due process)
and 11 (confrontation).
3 See Alaska Administrative Rules 21(a) and 35 (which, in
combination, require the electronic recording of "all judicial
business involving the trial of causes and conferences with
[attorneys] or litigants" to the extent practicable); Shadle v.
Anchorage, 941 P.2d 904, 905 (Alaska App. 1997) ("[W]hen there is
no electronic record of the pertinent lower court proceedings, ...
[and] when the missing record can not be adequately reconstructed
to allow meaningful appellate review of the defendant's claims of
error, the lower court's decision must be reversed and the
defendant must receive a new hearing or trial.")
4 See Henry v. State, 861 P.2d 582, 592-93 (Alaska App. 1993)
(a criminal defendant's exclusion from the sentencing hearing did
not violate his right of confrontation because "[t]he State did not
present evidence at [the] sentencing").
5 See Noffke v. State, 422 P.2d 102, 104 (Alaska 1967); Henry,
861 P.2d at 592.
6 Wamser v. State, 652 P.2d 98, 101 n.10 (Alaska 1982).
7 See the discussion of this issue in Henry, 861 P.2d at 593.
Neither we nor the Alaska Supreme Court has decided whether Rule
38(a) confers a broader right than the due process and
confrontation clauses of the Alaska Constitution.
8 See Evidence Rule 509(a).
9 See Evidence Rule 509(c)(2)(i) & (iii).
10 See Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509,
12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410,
89 S.Ct. 584, 21 L.Ed.2d 637 (1969). See also State v. Jones, 706
P.2d 317, 324-25 (Alaska 1985) (holding that, as a matter of state
law, the Aguilar-Spinelli test continues to govern the evaluation
of hearsay information offered to support a search or seizure).
11 See Evidence Rule 509(c)(3)(i)-(iii).
12 The pertinent part of Rule 509(c)(2)(ii) provides:
"Although the [government's] submission generally will consist of
affidavits, the judge may direct that witnesses appear before the
judge, without the government or the other party present, to give
testimony."
The pertinent part of Rule 509(c)(3)(ii) provides: "The judge
may, if necessary, examine the informant or other witnesses about
the informant, but such examination will be in camera and neither
the defendant nor the prosecution shall be present or represented."
13 See Commentary to Evidence Rule 509(c), ninth paragraph.
14 Id.
15 Id., eighth paragraph.
16 Commentary to Evidence Rule 508, third paragraph (quoting
J. Weinstein & M. Berger, Weinstein's Evidence (1979), Paragraph
508[03]).
17 923 P.2d 29 (Alaska 1996).
18 See id. at 37 n.5. See also Doe v. Superior Court, 721 P.2d
617, 626 (Alaska 1986) (directing trial judges to perform in camera
inspection of documents when the government claims that they are
protected by the executive privilege).
19 897 P.2d 68 (Alaska 1995).
20 See id. at 75.
21 794 P.2d 595 (Alaska 1990).
22 See id. at 598-99.
23 571 P.2d 631 (Alaska 1977).
24 See id. at 642.
25 See id. at 643.
26 611 P.2d 69 (Alaska 1980).
27 See id. at 72.
28 See Commentary to Evidence Rule 509(c), eighth paragraph.
29 707 P.2d 922 (Alaska App. 1985).
30 Id. at 929.
31 See Christensen v. NCH Corp., 956 P.2d 468, 473-74 (Alaska
1998) (holding that a trial judge was not obliged to conduct an
in camera examination of assertedly privileged documents when the
basis of the privilege was obvious from the offer of proof and the
opposing party offered no specific basis for challenging the
assertion of privilege); Mogg v. National Bank of Alaska, 846 P.2d
806, 814 (Alaska 1993) (a trial judge has discretion whether to
grant in camera review of materials relevant to a claim of
privilege).
32 See Alaska Dept. of Revenue v. Oliver, 636 P.2d 1156,
1164 n.13 (Alaska 1981) ("We express no opinion whether either the
federal or state constitution guarantees an in camera hearing [to
a litigant claiming the privilege against self-incrimination]").
33 See footnote 31, above.
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