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Blair v. State (03/08/2002) ap-1793
Blair v. State (03/08/2002) ap-1793
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: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
DONALD BLAIR, )
) Court of Appeals No.
A-7853
Appellant, )
Trial Court No. 3DI-00-157 Cr
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1793 March 8, 2002]
)
Appeal from the District Court, Third Judi
cial District, Dillingham, Fred Torrisi,
Judge.
Appearances: Joseph R. Faith, Dillingham,
for Appellant. John Skidmore, Assistant
District Attorney, Dillingham, and Bruce M.
Botelho, Attorney General, Juneau, for Appel
lee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Donald Blair was tried in the Dillingham district court
for fourth-degree assault upon his wife. Soon after the jury
retired to begin its deliberations, Blairs attorney told the
trial judge that he wished to be present for any playbacks of
testimony that the jury might request.
At 4:10 that afternoon, Blairs attorney telephoned the
court to inform the judge that he would be away from his office
for approximately forty-five minutes, picking up his wife and
grandchildren. Seventeen minutes later, at 4:27 p.m., the jury
requested a playback of a hotly disputed portion of the record a
tape recording in which Blairs wife either exclaimed You have no
right to strike me, Donald! (the prosecution version) or You have
no right to grab me, Donald! (the defense version).
The judge telephoned the defense attorneys office to
let him know about the jurys request. As just explained, the
defense attorney was out, so the judge left a message on the
attorneys answering machine. Then, without waiting for Blairs
attorney to return, the judge directed the in-court clerk to
proceed with the playback.
Blairs attorney returned to his office at around 4:40
p.m.. Soon after, he received word from the court that the jury
had reached a verdict. The attorney went directly to the
courthouse without checking his messages and, thus, he did not
learn of the playback until the next morning. When Blairs
attorney discovered that a playback had occurred in his absence,
he asked the judge to order a new trial. The trial judge denied
this motion, and Blair now appeals.
Blair and his attorney had a right to be present during
the playback of testimony. As the Alaska Supreme Court explained
in Dixon v. State, 605 P.2d 882 (Alaska 1980):
A jurys request to review evidence
during its deliberations obviously raises
questions of great importance to a criminal
defendants rights, as [such a request]
generally reflects doubt or disagreement on
the part of at least some jurors as to the
nature of evidence presented at trial. While
the final decision as to the appropriate
response to such a jury request is left to
the trial courts discretion, we think it
critically important that the defendant and
his counsel be notified of the request. They
should be allowed to consult with the trial
court and to offer comments, suggestions, and
objections to guide both the substance and
phrasing of the courts response to the jurys
request.
Id. at 887.
The State concedes that the trial
court committed error in holding the playback
without Blair and his attorney. The
remaining question is whether this error
requires reversal of Blairs conviction and a
new trial. Dixon holds that, in these
circumstances, it is the States burden to
show that the error was harmless beyond a
reasonable doubt.1
The State has not met that burden.
As already noted, the jury asked to rehear a
portion of the evidence that was hotly
contested. It is a fair inference that at
least some jurors believed that Blairs wife
had said grab rather than strike and that
these jurors thought that their decision
might turn on resolution of this factual
issue.
As Blair points out, when the court
conducted the playback, the jurors did not
hear the original tape recording of Blairs
wifes exclamation. Rather, they heard a
playback of the in-court clerks tape
recording of the portion of the trial in
which the original tape was played. In other
words, the jury reached its decision after
listening to a tape of a tape. Had Blairs
attorney been notified of the jurys request,
he might well have convinced the trial judge
to let the jury hear the original tape.
Of course, we do not know whether
the trial judge would have granted such a
request. But the point is that Blair was
entitled to make the request and to argue in
support of it. He was denied this right, and
the evidence at issue appears to have been
critical to the jurys decision. We therefore
conclude that there is a reasonable
possibility that the verdict was affected by
the trial courts error in holding the
playback without Blair and his attorney.
Blair is entitled to a new trial.
Even though we have decided that
Blair must receive a new trial, we must now
address two other issues raised in this
appeal because they will probably arise
during any retrial.
The first issue is whether the
trial judge abused his discretion when he
ruled that Blairs wifes exclamation was
admissible as an excited utterance under
Alaska Evidence Rule 803(2). Blairs wife
made this statement as she was watching the
police take her husband into custody. In the
district court, Blair pointed out that he was
taken into custody ten to fifteen minutes
after the alleged assault, thus giving his
wife ample time to think about her words.
Blair argued that, under these facts, his
wife was no longer under the stress of
excitement caused by the alleged assault when
she made her statement.
The trial judge took a different
view of the matter. The judge concluded
that, despite the passage of ten or fifteen
minutes, Blairs wife was still under the
stress of excitement engendered by the
incident and that she blurted out the
statement without conscious reflection as she
watched her husband being escorted to the
patrol car.
The ultimate question is whether
Blairs wifes statement [was] the product of
her conscious reflection about what she
should say.2 The theory behind Evidence Rule
803(2) is that circumstances may produce a
condition of excitement which temporarily
stills the [speakers] capacity of reflection
and produces utterances free of conscious
fabrication.3 This is a question of fact,
and a trial judges conclusion on this issue
is to be upheld on appeal unless it is
clearly erroneous.4 Based on the
circumstances of this case, we conclude that
the trial judge was not clearly wrong when he
concluded that Blairs wifes statement was an
excited utterance.
The second issue is whether the
trial judge abused his discretion when he
refused to dismiss the prosecution against
Blair or, alternatively, order the State to
grant immunity to Blairs wife after she
claimed her privilege against self-
incrimination and refused to testify at
Blairs trial.
With a very few exceptions,
virtually every American jurisdiction that
has considered this issue has concluded that
a court has no authority to immunize a
witness or to order the government to
immunize a witness.5 Blair has not convinced
us to depart from that rule.
However, even though a court may
have no power to order the government to
grant immunity to a witness, this court held
in State v. Echols, 793 P.2d 1066 (Alaska
App. 1990), that a court has the authority,
in certain extreme circumstances, to dismiss
a criminal case unless the government grants
immunity to a defense witness. Blair
suggests that his case required this type of
remedy that the trial judge should have
dismissed the case when the State refused to
grant immunity to his wife.
But this courts decision in Echols
applies only to a narrow set of
circumstances: instances where the States
refusal to grant immunity to a defense
witness undermines the fundamental fairness
of the trial.6 As the two concurring judges
in Echols noted, the courts ultimate power to
dismiss a criminal prosecution must be
exercised sparingly so as to preserve the
basic rule that decisions involving witness
immunity lie within the exclusive province of
the executive branch.7
Blairs trial judge concluded that
the State did not work manifest injustice by
declining to extend immunity to Blairs wife.
Having reviewed the record, we conclude that
the trial judge did not abuse his discretion.
The States refusal to grant immunity to
Blairs wife did not undermine the fairness of
Blairs trial.
It was not manifest that Blairs
wifes testimony would have led to his
acquittal. Blairs case presented an instance
where the purported victim of domestic
violence indicated her desire to retract her
earlier accusation. Assuming that Blairs
wife would have recanted her prior accusation
against her husband, she would certainly have
been impeached with her prior claims that she
had been assaulted.
Moreover, as the State points out,
the government has a strong interest in not
granting immunity to spouses and live-in
companions who later claim that their initial
accusations of domestic violence were false.
Freely granting immunity to recanting victims
in domestic violence cases would likely
engender collusion and witness-tampering.
For these reasons, we find Blairs
case significantly different from the facts
of Echols, and we hold that the trial judge
did not abuse his discretion when he declined
to dismiss the case when the State did not
grant immunity to Blairs wife.
Because Blair and his attorney were
denied the right to attend the jurys playback
of testimony, the judgement of the district
court is REVERSED. Blair is entitled to a
new trial.
At the same time, we uphold the
trial judges rulings (1) that Blairs wifes
statement was admissible under Evidence Rule
803(2) as an excited utterance and (2) that
the court could not order the State to grant
immunity to Blairs wife, and (3) that the
States decision not to grant immunity to
Blairs wife did not necessitate the dismissal
of the case.
_______________________________
1 See id. at 888.
2 Ryan v. State, 899 P.2d 1371, 1378 n.4 (Alaska App.
1995).
3 Id., citing the Commentary to Alaska Evidence Rule
803(1)-(2), third paragraph.
4 See Dezarn v. State, 832 P.2d 589, 591 (Alaska App. 1992)
(A trial judges ruling that a particular out-of-court
statement qualifies as an excited utterance depends on
the specific facts of the case and is, in effect, a
finding of fact regarding the declarants state of mind
at the time of the utterance. For this reason, the
trial courts ruling will not be reversed on appeal
unless it is shown to be clearly erroneous.)
5 See State v. Echols, 793 P.2d 1066, 1071 n.2 (Alaska App.
1990) (noting that the concept of inherent judicial
authority to grant immunity has not been widely
accepted). See also United States v. Anguilo, 897 F.2d
1169, 1191 (1st Cir. 1990) (noting that virtually every
court that has considered the issue has determined that
courts have no inherent authority to grant immunity)
(citing cases); United States v. Capozzi, 883 F.2d 608,
614 (8th Cir. 1989) (observing that nearly every
federal court of appeals that has considered the
question of court-granted immunity has rejected it as a
violation of the separation of powers doctrine) (citing
cases); United States v. Tindle, 808 F.2d 319, 325 n.4
(4th Cir. 1986) (noting that the concept of inherent
judicial authority to grant immunity has been soundly
criticized and is the minority view) (citing cases);
Carter v. United States, 684 A.2d 331, 338-39 (D.C.
App. 1996) (joining the overwhelming number of courts
that have rejected the concept of judicially imposed
immunity) (citing cases); Robert M. Schoenhaus,
Annotation, Right of Defendant in Criminal Proceeding
to Have Immunity From Prosecution Granted to Defense
Witness, 4 A.L.R.4th 617, 3, at 622-24 (1981)
(supplemented by 2001 pocket part 3, at 106-07)
(citing cases).
6 See id., 793 P.2d at 1074-75.
7 See id., 793 P.2d at 1075 (Bryner, C.J., and Singleton,
J., concurring).
