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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).