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Cogdill v. State (11/19/2004) ap-1957
Cogdill v. State (11/19/2004) ap-1957
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
JERRY DWIGHT COGDILL, )
) Court of Appeals No.
A-8541
Appellant, )
Trial Court No. 2BA-02-330 Cr
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1957 November 19, 2004]
)
Appeal from the Superior Court, Second Judi
cial District, Barrow, Michael I. Jeffery,
Judge.
Appearances: David D. Reineke, Assistant
Public Defender, and Barbara K. Brink, Public
Defender, Anchorage, for the Appellant. W.
H. Hawley Jr., Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Gregg D. Renkes, Attorney
General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Jerry Dwight Cogdill appeals his conviction for
bootlegging selling alcoholic beverages without a license in a
local option community (i.e., a community that has voted to
restrict the sale and/or possession of alcoholic beverages under
AS 04.11.491).1 Cogdill claims that the superior court was
obliged to dismiss the prosecution pursuant to Criminal Rule
43(c) because the district attorneys office refused to grant
immunity to a potential witness who asserted her privilege
against self-incrimination and declined to testify.
For the reasons explained here, we conclude that (1)
this witnesss testimony was not essential to a fair trial, and
(2) the State had a good reason not to grant immunity to the
witness. Accordingly, the superior court correctly refused to
dismiss the case against Cogdill.
Underlying facts
Cogdill was a bootlegger who was caught in a
sting operation. The police had information that
Cogdill was selling alcoholic beverages, but the police
were also told that Cogdill would not sell directly to
prospective customers; instead, Cogdill insisted on
selling the liquor only through a go-between, Eleanor
Merly. For this reason, police informant Bertha
Leavitt approached Merly. Leavitt asked Merly to
obtain a bottle of liquor for her, and Merly (who was
ignorant of the police investigation) agreed.
The police gave Leavitt a marked $100 bill to
use as the purchase money. Then, under police
surveillance, Leavitt took a cab to Cogdills residence.
When the cab arrived at Cogdills residence, Leavitt
handed the $100 bill to Merly. Merly went inside while
Leavitt waited in the cab. A little later, Merly
emerged from the residence with a bottle of vodka; she
gave this bottle to Leavitt.
Leavitt turned the bottle of vodka over to
the police, and the police then obtained a search
warrant for Cogdills residence. During the ensuing
search, the police found the marked $100 bill that
Leavitt had given Merly, as well as other bottles of
vodka. Under questioning by the police, Cogdill
admitted that he had just sold a bottle of vodka to
Merly. Based on this evidence, Cogdill was charged
with felony bootlegging.
The controversy surrounding Merlys proposed testimony
Merly was not charged with any crime, even
though the evidence suggested that Merly potentially
faced criminal liability for her role in this
transaction.2
Prior to trial, a defense investigator
interviewed Merly. During this interview, Merly denied
that Cogdill had sold the bottle of vodka. Merly
conceded that she had given Cogdill the $100 bill, but
she asserted that she gave him this money in order to
pay off a pre-existing debt. As to how Merly happened
to leave Cogdills residence carrying a bottle of vodka,
Merly explained that Cogdill had agreed to loan her a
bottle of vodka, with the understanding that she would
replenish Cogdills supply when she got her own next
shipment of liquor.
(In other words, Merly asserted that she had
embezzled Leavitts money. Instead of using the $100 to
purchase alcohol (the purpose for which Leavitt had
entrusted the money to Merly), Merly used the money to
pay off her own pre-existing debt to Cogdill. Then, in
order to conceal this embezzlement from Leavitt, Merly
borrowed a bottle of vodka from Cogdill and gave the
bottle to Leavitt. Thus, according to Merlys
description of these two transactions, she (Merly) was
the person who ultimately was going to pay for the
bottle of vodka that she delivered to Leavitt.)
Cogdills attorney wanted Merly to take the
stand and give this account of events, but Merly
invoked her privilege against self-incrimination.
Cogdills attorney then suggested that,
because Merly was unavailable as a witness, her
statement was admissible under Evidence Rule 804(b)(3)
as a statement against penal interest. But under Rule
804(b)(3), when a statement tending to [incriminate]
the declarant [is] offered to exculpate the accused,
the statement is not admissible unless corroborating
circumstances clearly indicate the trustworthiness of
the statement. Superior Court Judge Michael I. Jeffery
ruled that Merlys statement did not have sufficient
guarantees of trustworthiness to satisfy Rule
804(b)(3). Cogdill does not challenge this ruling.
In a final attempt to have Merlys version of
events presented to the jury, Cogdills attorney argued
that Merlys proposed testimony was essential to a fair
trial, and that the State should therefore grant Merly
immunity for her testimony. Relying on this Courts
decision in State v. Echols3 (which we discuss at
length later in this opinion), Cogdill argued that if
the State declined to immunize Merly, Judge Jeffery
should exercise his authority under Alaska Criminal
Rule 43(c) and dismiss the prosecution in furtherance
of justice.
Judge Jeffery concluded that Cogdills case
was materially different from the situation presented
in Echols, and he therefore refused to order the State
to immunize Merly or face dismissal of the indictment.
This is the ruling that Cogdill challenges on
appeal. Cogdill argues that Judge Jeffery abused his
discretion when he declined to dismiss the case after
the State refused to grant immunity to Merly.
Why we affirm the superior courts ruling
In State v. Echols, this Court recognized
that there are certain extreme circumstances in which a
trial judge can properly dismiss a criminal prosecution
under Criminal Rule 43(c) if the State refuses to
immunize a witness who has crucial exculpatory evidence
to offer.4 However, Echols provides uncertain guidance
concerning the precise circumstances that warrant this
type of judicial intervention.
The lead opinion in Echols lists several
factors that, in combination, were found to justify the
trial judges decision to dismiss the prosecution: (1)
the States evidence against the defendant was ambiguous
and uncertain;5 (2) the witness who was claiming the
Fifth Amendment privilege could be expected to provide
critical testimony regarding the defendants guilt or
innocence;6 (3) the State had no significant reason
for refusing to grant immunity to this
witness;7 and (4) the State would still have been able
to prosecute the witness, even if the witness received
immunity.8
(This last factor deserves special attention.
At the time Echols was decided, a witnesss privilege
against self-incrimination could be overridden by a
grant of use immunity. See AS 12.55.101(a). Thus,
even though the immunized witness would be protected
from the governments later use of their testimony, and
from the use of any information derived from that
testimony, the government would still be able to
prosecute the witness for crimes arising from the
events described in the witnesss testimony if the
governments case was based on pre-existing or
independently derived evidence.
Although AS 12.55.101(a) is still on the
books, that use immunity statute has been superseded by
the Alaska Supreme Courts decision in State v.
Gonzalez, 853 P.2d 526 (Alaska 1993). In Gonzalez, the
supreme court held that, under the Alaska Constitution,
use immunity is not an adequate substitute for a
witnesss privilege against self-incrimination; instead,
a witness must receive transactional immunity before
the government can require the witness to give self-
incriminating testimony.9 To date, this Court has not
addressed the question of whether Echols retains the
same vitality now that any grant of immunity will
categorically preclude the State from prosecuting the
immunized witness for any crimes arising from the
transaction that the witness is forced to testify
about.)
The totality of the circumstances approach
adopted by the lead opinion in Echols is undercut to a
certain extent by the fact that two members of the
court (i.e., a majority) wrote separately to give their
own rationale for the decision. In a concurring
opinion, Judges Bryner and Singleton stated that, in
their view, [t]he simple and exclusive basis for the
dismissal of the prosecution was that under the unique
circumstances of the ... case, it would have been
fundamentally unfair to subject [the defendant] to the
possibility of conviction on the disputed charges [in]
the absence of [the witnesss] exculpatory testimony.10
According to these two concurring judges, the
trial judges decision to dismiss the prosecution was
justified by two factors: (1) the absent witnesss
testimony had crucial exculpatory value,11 and (2) the
district attorneys office was inextricably involved in
the circumstances that led [this witness] to invoke her
privilege not to testify.12 Indeed, the two concurring
judges declared,
the record establishes that the [State] did
everything in its power to avail itself of
[this witnesss] testimony when it appeared
likely [that the testimony would] be
favorable [to the State,] and [did everything
in its power] to assure that the testimony
would not be heard when it appeared likely
[that the testimony would] be unfavorable [to
the State].
Echols, 793 P.2d at 1077 (Bryner, C.J., and
Singleton, J., concurring).
Thus, even though the lead opinion
in Echols is grounded on a totality of
circumstances approach, the two concurring
judges appear to have reached their decision
on the basis that the State engaged in unfair
manipulation of the evidentiary process:
threatening prosecution of a crucial defense
witness when the States sole motive for this
threat was to deter the witness from
testifying for the defense.
We have never been called upon to
resolve the potential differences between
these two approaches. In our one published
case construing Echols, we noted merely that
the Echols decision 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. Blair v. State, 42 P.3d 1152,
1155 (Alaska App. 2002).
In Blair, the defendant was charged
with assaulting his wife.13 In advance of
trial, Blairs wife indicated that she wished
to recant her accusation of assault. But
rather than testify at her husbands trial,
she asserted her privilege against self-
incrimination (apparently out of concern that
she might be charged with making a false
report or with having committed perjury at an
earlier court hearing).14 When the State
declined to grant immunity to Blairs wife,
Blair asked the trial judge to dismiss the
case under Criminal Rule 43(c). The judge
refused to dismiss the prosecution, and we
upheld the judges decision on appeal.
In Blair, we gave two reasons for
upholding the trial judges decision. First,
we concluded that the absence of the wifes
testimony did not undermine the fairness of
Blairs trial because [i]t was not manifest
that Blairs wifes testimony would have led to
his acquittal:15
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.
Blair, 42 P.3d at 1155.
Second, we noted that the State had a valid reason for
declining to grant immunity to Blairs wife:
[T]he 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.
Blair, 42 P.3d at 1155-56.
We uphold Judge Jefferys decision in Cogdills case for
both of these same reasons.
First, Cogdill has failed to show that the absence of
Eleanor Merlys proposed testimony undermined the fundamental
fairness of his trial. Even though Merly was apparently willing
to give a version of events that exculpated Cogdill, it was not
manifest that Merlys proposed testimony would have led to
Cogdills acquittal. Given the circumstances of this case
particularly, given the fact that Cogdill ended up with the
marked $100 bill, and that he confessed to selling the bottle of
vodka when he was interviewed by the police Merlys proposed
testimony does not appear to have been crucial, verdict-altering
evidence. We further note that Cogdill does not challenge Judge
Jefferys ruling that Merlys out-of-court statements did not carry
sufficient guarantees of trustworthiness to merit admission under
Evidence Rule 804(b)(3).
Second, the State had a valid reason for declining to
grant immunity to Merly. Given the evidence in this case, the
district attorney could reasonably conclude that Merly was an
accomplice to Cogdills bootlegging operation. It is true that
the district attorney apparently decided not to charge Merly for
her role in the bootlegging scheme. Nevertheless, in situations
where an apparent accomplice to a criminal scheme indicates a
desire to absolve other participants in the scheme, freely
granting immunity would likely engender collusion and
witness-tampering.
Finally, if as suggested by the concurring judges in
Echols the test is whether the State was inextricably involved
in the circumstances that led [the witness] to invoke her
privilege not to testify,16 there is no evidence of this in
Cogdills case. The record does not show that Merly belatedly
chose to invoke her privilege against self-incrimination in
response to overt threats by the State. Rather, Merlys
invocation of her privilege could reasonably be anticipated,
because the content of her proposed testimony was obviously self-
incriminatory.
Nothing in the record suggests the type of
prosecutorial manipulation present in Echols where, according to
the concurring judges, the State encouraged the witness to
testify when it appeared that the witnesss testimony would favor
the State, and then started doing everything in its power
(including threatening the witness with prosecution) to assure
that the [witnesss] testimony would not be heard when it appeared
likely [that this testimony would] be unfavorable [to the
State].17
For these reasons, we conclude that Judge Jeffery
properly refused to dismiss the prosecution against Cogdill under
Criminal Rule 43(c).
Conclusion
The judgement of the superior court is
AFFIRMED.
_______________________________
1 AS 04.11.010(a); AS 04.16.200(b).
2 See the cases discussed in State v. Burden, 948 P.2d 991,
993 (Alaska App. 1997).
3 793 P.2d 1066 (Alaska App. 1990).
4 Echols, 793 P.2d at 1072-75.
5 Id. at 1074-75.
6 Id. at 1074.
7 Id. at 1075.
8 Id.
9 Gonzalez, 853 P.2d at 530-32.
10 Echols, 793 P.2d at 1076.
11 Id. at 1077.
12 Id.
13Blair, 42 P.3d at 1153.
14Id. at 1155.
15Id.
16 Echols, 793 P.2d at 1077.
17 Id.
