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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JOHN TODD RANTALA,
Appellant, Court of Appeals No. A-
9769
v. Trial Court No. 3HO-
04-140 Cr
STATE OF ALASKA,
Appellee. O P I N I
End of Caption O N
No. 2236 September 18, 2009
Appeal from the Superior Court, Third Judi
cial District, Homer, Harold M. Brown, Judge.
Appearances: Marjorie Allard, Assistant
Public Defender, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellant.
Blair M. Christensen, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Talis J. Colberg,
Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Bolger, Judges.
MANNHEIMER, Judge.
BOLGER, Judge, dissenting in part.
John Todd Rantala appeals his conviction for witness
tampering.1 This charge was based on three telephone
conversations between Rantala and his domestic partner, Terri
Mischler. Rantala, who was in jail on a charge of burglary,
telephoned Mischler three times on the day before his burglary
case was scheduled to come before the grand jury. The State
alleged, and the trial jury found, that during these three
telephone conversations Rantala attempted to induce [Mischler] to
testify falsely, [or] offer misleading testimony, or unlawfully
withhold testimony at the grand jury proceeding.
Rantala was originally charged with three separate
counts of witness tampering, one count for each of the three
telephone conversations. His trial on these charges ended
without a decision, after the jury declared themselves hung on
all three counts and Rantalas attorney requested a mistrial.
Eight months later, the State filed a superseding information
which contained a single, consolidated charge of witness
tampering based on all three telephone conversations. At
Rantalas second trial, he was convicted of this superseding
count.
In the present appeal, Rantala claims that the trial
judge at his first trial engaged in misconduct, and that the
judges actions misled the defense attorney into seeking a
mistrial. Based on the assertion that his attorney was misled
about the need for, or the advisability of, a mistrial, Rantala
argues that the double jeopardy clause barred the State from
bringing him to trial a second time for witness tampering.
Rantala also argues in this appeal that the evidence
presented at his trial was legally insufficient to establish the
crime of witness tampering.
As we explain more fully in this opinion, we reject
Rantalas double jeopardy claim. However, we also conclude that
the evidence presented at Rantalas trial, even when viewed in the
light most favorable to the jurys verdict, is insufficient as a
matter of law to support a conviction for witness tampering. We
must therefore reverse Rantalas conviction.
Rantalas double jeopardy claim
As we noted earlier, Rantalas first trial
ended in a mistrial after the jurors returned to court
and announced that they were hung on all three counts.
In a note that the foreman handed to the trial judge
when the jurors came back to the courtroom, the jurors
gave the following breakdown of their position: on
Count I, they were split 6 to 6; on Count II, they were
| split 6 for conviction, 3 for acquittal (with 3 apparently undecided | ); and on Count III, they were split 9 for conviction and 3 for acquittal. |
| Based on this information, both the prosecutor and the defense attorney agreed that the jurors would be unable to reach any verdicts, and the defense attorney requested a mistrial. The trial judge, Superior Court Judge Harold M. Brown, granted this request. | |
| However, a few minutes before the jury returned to court and told Judge Brown that they were unable to reach a verdict on any of the three counts, the jury took an action that was seemingly inconsistent with their later declaration that they were hung: they sent the judge a completed verdict form on one of the counts (Count I | ). This verdict form declared that the jurors had found Rantala Not Guilty on Count I. |
| Judge Brown notified the parties that he had received this completed verdict form, and that this form apparently contained the jurys verdict on Count I, but Judge Brown did not tell the parties what that verdict was. Instead, the judge told the parties that he intended to send the verdict form back to the jury, with an instruction that the jurors should submit their verdicts on all three counts at the same time. | |
| The prosecutor immediately responded, I agree. Rantalas attorneys only response was to point out that it was ten minutes before 9:00 p.m., the time at which Judge Brown intended to let the jurors go home for the night. | |
| There was a pause in the proceedings while Judge Brown composed his note to the jurors. When the judge was finished, he read the note aloud to the two attorneys. Neither attorney objected to (or even commented on | ) what the judge had written. Judge Brown then sent the following note to the jury: |
| Jurors: I am returning the verdict form to you. I have not announced your verdict to the parties. You should return your verdict on all counts at the same time. I will ask you as a group to come back into court at 9 p.m. to consider whether it would be fruitful to continue deliberations tonight or whether we should return at 9 a.m. tomorrow to continue deliberations. | |
This note
bears the time 8:50 p.m., but the log notes
of the proceeding show that the court went
off-record (assumedly, so that this note
could be sent to the jury) at 8:55 p.m..
Just under ten minutes later, at 9:04 p.m.,
the court reconvened with the jurors present
in the courtroom. At that time, the jury
foreman handed Judge Brown the note which
declared that the jurors were split along the
lines described in the first paragraph of
this section. We note, in particular, the
fact that the jurors declared themselves
split 6 to 6 on Count I the very count on
which the jurors, seemingly, had been in
unanimous agreement only minutes before.
Moreover (as Judge Brown
immediately revealed to the parties), the
jury foreman made a verbal comment when he
handed Judge Brown the note that contained
the breakdown of the jurors positions: the
foreman told the judge that, in his opinion,
the jury was hopelessly hung.
When the prosecutor and the defense
attorney were apprised of the jurys numerical
breakdown, and of the foremans comment, they
agreed that it was pointless to ask the
jurors to continue deliberating. The defense
attorney then moved for a mistrial, which
Judge Brown granted.
Two weeks later, Rantala (now
represented by a new attorney) filed a motion
in which he argued that, under the double
jeopardy clause, Count I had to be dismissed.
Rantala asserted that Judge Brown committed
error by failing to inform the parties of the
content of the jurys premature verdict on
Count I i.e., by failing to inform the
parties that the jury had apparently voted to
acquit Rantala on this count. Rantala argued
that if his defense attorney had been aware
of the apparent acquittal on Count I, the
defense attorney either would not have
requested a mistrial when the jury returned
to court ten minutes later and declared
themselves hung, or the defense attorney at
least would have insisted on polling the
jurors before he asked for the mistrial.
Based on the foregoing argument,
Rantala asserted that his defense attorneys
request for a mistrial did not constitute a
knowing or intelligent waiver of Rantalas
double jeopardy rights on Count I and that,
therefore, the State was barred from bringing
Rantala to trial again on Count I.
Rantala did not offer an affidavit
from his trial attorney in support of this
motion, nor did he seek an evidentiary
hearing. Judge Brown denied the motion
without comment.
As explained above, Rantala was
later tried a second time this time, on the
single consolidated count and the jury found
him guilty.
On appeal, Rantala renews his
argument that Judge Brown should have
apprised the parties that the jury foreman
had written Not Guilty on the verdict form
for Count I. This time, however, Rantala
argues that he is entitled to more than
simply dismissal of the charge in former
Count I (the charge based on the first
telephone conversation). Rantala now argues
that he is entitled to dismissal of the
entire case, and to an order barring the
State from reinstituting the charges based on
the second and third telephone conversations.
Rantalas briefs to this Court
present the argument that Judge Brown had no
authority to reject what was apparently a
valid verdict on Count I. According to this
argument, Judge Brown was obligated to enter
judgement on this verdict, even though it was
only a partial resolution of the charges, and
the judge therefore acted illegally when he
sent the verdict form back to the jury and
directed the jury to return all three
verdicts at the same time. However, Rantalas
attorney withdrew this claim at the oral
argument in this case.
Rantalas briefs also present an
alternative argument that was not raised in
the superior court: the argument that even
if Judge Brown had the authority to ask the
jurors to return their verdicts on all three
counts at the same time, the judges note to
the jury was worded improperly worded in
such a way as to imply that the judge refused
to accept the jurors apparent decision on
Count I, and that the judge was ordering the
jurors to reconsider that decision.
We reject this alternative
argument. The text of Judge Browns note does
not appear coercive on its face; it merely
informs the jurors that they should return
all three of their verdicts at the same time.
Moreover, as we explained earlier, Judge
Brown read the content of this note,
verbatim, to the two attorneys before he sent
the note to the jury, and Rantalas defense
attorney had no objection to either the
substantive content of the note or to the
judges wording. Judge Brown committed no
error, much less plain error, when he
composed this note and sent it to the jury.
This leaves Rantalas last claim:
that Judge Brown, by failing to disclose the
content of the verdict form on Count I,
unlawfully misled Rantalas defense attorney
about the status of the jurys deliberations
thus preventing the defense attorney from
making an informed decision about whether to
seek a mistrial when, ten minutes later, the
jury announced that they were hopelessly
divided on all three counts.
We reject this argument because it
is not supported by the record. There is no
indication that the defense attorney was
misled.
The defense attorney knew that the
jurors declared themselves unable to decide
Rantalas case. In particular, the defense
attorney knew that the jurors declared
themselves split 6 to 6 on Count I. The
defense attorney also knew that, ten minutes
before the jurors returned to court and
announced themselves deadlocked, the jury had
sent Judge Brown a verdict form that
apparently contained the jurys verdict on
this same count. The defense attorney knew
this because, as soon as Judge Brown received
the verdict form, he announced this fact in
open court.
The defense attorney also knew what
had happened to that verdict: he was aware
of (and apparently approved of) Judge Browns
decision to return the verdict form to the
jurors, accompanied by an instruction that
they should return their verdicts on all
three counts at the same time.
Generally, litigants waive their
right to challenge a verdict procedure unless
they raise their objection before the jury is
discharged.2 If Rantalas trial attorney
thought that he needed to know the content of
the verdict form before he decided whether to
seek a mistrial, he could have asked Judge
Brown to reveal that information.
Alternatively, the defense attorney could
have requested Judge Brown to ask the jurors
why they now declared themselves hung when,
only minutes before, they had returned a
verdict on one of the counts.
But the defense attorney chose not
to pursue this matter in either of the ways
suggested in the preceding paragraph, or in
any other fashion. Instead, he pronounced
himself satisfied that the jury was truly
deadlocked, and he asked for a mistrial.
On appeal, Rantala implies that his
trial attorney acted incompetently when he
asked Judge Brown to declare a mistrial even
though he did not know the content of the
verdict form. According to Rantala, this
information was crucial to any informed
decision on the matter of a mistrial.
An attorneys decision to ask a
trial judge to declare a mistrial is
obviously a tactical decision. The law
presumes that an attorneys decisions are
competent, and that they are motivated by
sound tactical considerations.3 Thus, it is
Rantalas burden to affirmatively establish
that no competent defense attorney would have
decided to seek a mistrial without knowing
the content of the previously submitted
verdict form.
As we noted earlier, Rantala has
not offered an affidavit from his trial
attorney, or any other evidence, to support
the assertion that his attorney was misled or
that his attorney was otherwise unable to
make a competent tactical decision regarding
whether to request a mistrial. Rantala rests
his claim solely on the record of the trial
proceedings.
That record does not address or
explain the defense attorneys tactical
analysis of the situation. Moreover, it was
not patently incompetent for Rantalas
attorney to seek a mistrial in this
situation. Accordingly, Rantala failed to
rebut the presumption that his attorney acted
competently when he asked for a mistrial.
For these reasons, we reject
Rantalas claim that his second trial was held
in violation of the double jeopardy clause.
The sufficiency of the evidence to support Rantalas
conviction for witness tampering
At Rantalas second trial (the trial that led
to the judgement that Rantala challenges in this
appeal), the prosecution and the defense each presented
one witness. The prosecution presented the testimony
of the state trooper who arrested Rantala for burglary
and who later obtained the search warrant that
authorized the seizure of the recordings of Rantalas
three telephone calls to Terri Mischler from jail. The
defense presented the testimony of Mischler, who
asserted that Rantala never asked her to testify
falsely or to withhold testimony. However, the primary
evidence in the case was the audio recordings and
accompanying transcripts of Rantalas three telephone
calls to Mischler.
Here is the factual background of these
telephone calls: Rantala and Mischler had been living
together, along with Mischlers two children from a
prior relationship. Rantala moved out of the residence
after the state Office of Childrens Services obtained a
restraining order that prohibited Rantala from
contacting Mischlers two children. This restraining
order was issued in November 2003, and it was valid for
the next six months in other words, until May 2004.
On March 12, 2004, Rantala returned to
Mischlers house. When Mischler refused to let him
inside, Rantala entered through a window. Mischler
took her two children to a friends house, where she
called the state troopers. The trooper who responded
to the scene found Rantala hiding underneath Mischlers
house; the trooper had to use pepper spray to get
Rantala to surrender. Based on this incident, Rantala
was arrested and charged with burglary (a felony) as
well as six misdemeanors.
Rantalas burglary charge was scheduled to be
heard by the grand jury on March 19, 2004. Rantala
called Mischler from jail three times on March 18th:
one call at 9:32 in the morning, another at 10:16, and
a third at 1:25 in the afternoon. All told, these
three phone calls comprise 36 minutes of conversation
between Rantala and Mischler.
In each of these conversations, Rantala and
Mischler discussed the impending grand jury hearing.
Rantala told Mischler that, even though he broke into
her house, he was not a bad person and he did not
deserve to be convicted of a felony (i.e., the burglary
charge). Rantala repeatedly appealed to Mischlers
sympathies, urging her not to cooperate with the
authorities in their attempts to pursue the burglary
charge.
Standing alone, these statements do not
constitute the crime of witness tampering as defined in
AS 11.56.540(a)(1). Under this statute, the State was
required to prove that Rantala attempted to induce
Mischler to testify falsely, or to offer misleading
testimony, or to unlawfully withhold testimony at the
grand jury proceeding.
During the States summation to the jury at
Rantalas trial, the prosecutor asserted that Rantala
violated this statute when he said three different
things to Mischler during the telephone conversations.
On appeal, the State again relies on these same three
statements as constituting the actus reus of the crime.
The State first asserts that Rantala violated
the witness tampering statute when, during his second
conversation with Mischler, he told Mischler that she
did not have to testify against him at all if she had
not been subpoenaed to appear before the grand jury:
Rantala: Did they subpoena you?
Mischler: No.
Rantala: Then you dont even have to say
anything to them.
[Rantala and Mischler then engage in a
discussion about what the Office of Childrens
Services was likely to do if they learned
that Mischler was not cooperating in the
prosecution of Rantala.]
Rantala: Thats why you should have
never called the Troopers.
Mischler: Well, you know what? I did.
All right? So dont sit [t]here and say, You
shouldnt have done this or shouldnt have
[done] that. ... All right?
Rantala: You still dont have to testify
in front of the grand jury if they didnt
subpoena you. You just tell them, No, I dont
have anything to say. That way, they wont
indict me [on] this.
. . .
Rantala: You dont have to say anything.
Just say, I dont wish to testify. They didnt
subpoena you; you dont have to testify.
The State asserts that, by making
these statements to Mischler, Rantala was
attempting to induce Mischler to withhold
testimony in violation of the statute. But
contrary to the States position, Rantalas
statements do not constitute the crime of
witness tampering.
The witness tampering statute does
not forbid attempts to induce a witness to
withhold testimony. Rather, the statute
forbids attempts to induce a witness to
unlawfully withhold testimony. It is not
unlawful for a person to decline to testify
if they have not been subpoenaed or otherwise
ordered to appear. Therefore, it is not
witness tampering to advise a person of this
fact, or to encourage a person to exercise
their right to decline to testify if they
have not been subpoenaed.
The legislative commentary to AS
11.56.540 addresses the related issue of
whether it is witness tampering to try to
convince a prospective witness to avoid the
service of a subpoena (so that the witness
will not have to testify). The commentary
expressly declares that it is not a violation
of the witness tampering statute for a person
[to] attempt to induce a prospective witness
to avoid process. The commentary explains:
While AS 11.56.510 [i.e., the
Interference with Official Proceedings
statute] makes it unlawful to use a bribe or
threat to induce a witness to avoid legal
process, AS 11.56.540 does not bar an attempt
to achieve that objective by persuasion or
argument. A defense attorney, for example,
would not be prohibited from attempting by
persuasion or pleading to induce a witness to
avoid [service of] process by leaving the
state.
1978 Senate Journal, Supplement No. 47 (June
12), pp. 81-82.
Based on this commentary, we
conclude that Rantala did not violate the
witness tampering statute either when he
advised Mischler that she did not have to
testify before the grand jury if she had not
been subpoenaed, or when he urged Mischler
not to testify voluntarily.
The State next asserts that Rantala
violated the witness tampering statute when,
during his second conversation with Mischler,
he urged Mischler to tell the authorities
that she did not wish to pursue the
prosecution against him:
Rantala: You could say, Well, I dont
even want to pursue this. And they cant do
anything about it. Then I can go to court
... [and] plead guilty to [the related]
misdemeanors, and youll be out of it. You
wont have to deal with this anymore. You
understand what I want, [what Im] trying to
do here?
Again, the State asserts that this
statement was an attempt to induce Mischler
to unlawfully withhold testimony. This is
simply wrong. In the above-quoted statement,
Rantala did not say anything about whether
Mischler should testify. Rather, Rantala
asked Mischler to tell the authorities
(whether she testified or not) that she did
not wish to pursue the case against Rantala.
The Supreme Court of Washington
confronted this same issue in State v.
Rempel, 785 P.2d 1134 (Wash. 1990). The
defendant in Rempel was arrested for
attempting to rape a female acquaintance; he
called the victim from jail several times
following his arrest.4 During these phone
conversations, Rempel told the victim that he
was sorry, that he would never do it again,
and that the rape charge would ruin his
life.5 He repeatedly asked her to drop the
charges.6
Under Washingtons witness tampering
statute, RCW 9A.72.120, it is a crime to
induce a witness to testify falsely or to
unlawfully withhold testimony.7
Rempel was prosecuted under the theory that
he violated this statute when he asked the
victim to drop the charges. The Washington
Supreme Court held that, given the context of
Rempels conversation with the victim, his
statements did not (as a matter of law)
constitute witness tampering:
[Rempels] words do not contain a request
to withhold testimony. ... The words drop
the charges reflect a lay persons perception
that the complaining witness can cause a
prosecution to be discontinued. [Rempel]
maintained this [false] belief even after
[the victim] told him that she did not have
any control over the matter.
[We acknowledge that] an attempt to
induce a witness to withhold testimony does
not depend only upon the literal meaning of
the words used. The State is entitled to
rely on the inferential meaning of the words
and the context in which they were used ...
includ[ing] the prior relationship between
[the defendant] and [the witness], and [the
witnesss] reaction to the [words]. [But the]
entire context [in this case] negates any
inference that [Rempels] request to drop the
charge was in fact an inducement to withhold
testimony from a later trial.
. . .
We do not hold that the words drop the
charges [cannot] sustain a conviction [for
witness tampering,] if uttered in a factual
context that would lead to a reasonable
inference that the speaker actually attempted
to induce a witness to [unlawfully] withhold
testimony. Given the context here, however,
we conclude that no such inference can be
drawn. The evidence does not support
[Rempels] conviction.
Rempel, 785 P.2d at 1137.
Rantalas statement to Mischler was
analogous to the drop the charges request
made by the defendant in Rempel. Rantala
told Mischler, You could say, Well, I dont
even want to pursue this. And they cant do
anything about it. Like the defendant in
Rempel, Rantala apparently believed that the
burglary prosecution could not go forward
without Mischlers consent.
But asking the victim of a crime to
tell the authorities, I dont even want to
pursue this [criminal prosecution] is not the
same thing as asking the victim to testify
falsely or to unlawfully withhold testimony
if the victim is subpoenaed and called to the
stand. There is no inconsistency between a
victims publicly declaring that they do not
wish to see the defendant prosecuted, and the
victims honoring their duty to testify.
Like the Washington Supreme Court,
we do not say that Rantalas words to Mischler
(or similar words) could never sustain a
conviction for witness tampering. Sometimes,
the context of a conversation will add layers
of meaning that would not ordinarily be
present in the words themselves.
See, for instance, State v. Frank,
unpublished, 1999 WL 155946 (Wash. App.
1999), a case in which a nine-year-old boy
was being sexually abused by his parents.
The boys mother told him that he would go to
jail if he kept on telling lies or making
stuff up about the abuse.8 The Washington
Court of Appeals held that, even though the
mothers words, taken literally, were an
admonition not to tell lies, the real import
of the mothers words given the context of
the conversation and the relationship between
the two participants was to communicate a
threat whose purpose was to induce her son to
testify falsely or unlawfully withhold
testimony.9
But Rantalas words to Mischler do
not support any inference of a hidden
subtext. Like the defendant in Rempel,
Rantala essentially asked Mischler to tell
the authorities that she wanted to drop the
burglary charge. This statement was not a
request, or even a suggestion, that Mischler
lie about what happened or that she
unlawfully withhold testimony if the burglary
case went forward and she was subpoenaed to
testify. Accordingly, we conclude that
Rantala did not violate the witness tampering
statute when he made this request to
Mischler.
Finally, the State asserts that
Rantala violated the witness tampering
statute when, during the second and third
phone conversations, he suggested that if
Mischler decided to testify at the grand
jury, she should confine herself to yes or no
answers and should not volunteer information
that was not directly solicited by the
prosecutors questions:
Rantala: Just say yes or no to them.
. . .
[W]hatever you do, dont elaborate on
anything. If youre going to say anything,
just say yes or no.
. . .
Just answer yes or no. Dont go into a
whole bunch of if you do [testify], do that.
The State asserts that when Rantala
advised Mischler to confine herself to yes or
no answers, and not to volunteer information,
he was in effect asking Mischler to offer
misleading testimony or to unlawfully
withhold testimony. The State offers two
arguments as to why Rantalas advice to
Mischler constituted witness tampering.
The States first argument is that
Rantalas words, taken literally, constituted
a request that Mischler answer only yes or no
to any and all questions even questions that
clearly called for a narrative answer
(questions such as What happened next?).
This suggested interpretation of Rantalas
words is simply not reasonable.
As can be seen from the above-
quoted excerpts, Rantala did not ask Mischler
to answer only yes or no to any and all
questions. Rather, he urged Mischler to
answer as simply and concisely as possible:
[D]ont elaborate on anything. If youre going
to say anything, just say yes or no. ...
Just answer yes or no. Dont go into a whole
bunch of ... (apparently, a whole bunch of
explanation or detail).
We acknowledge that the State is
entitled to rely on any reasonable inference
from the evidence. But in this instance, the
States suggested interpretation of Rantalas
words is not plausible. It is simply
unreasonable to interpret Rantalas words as a
request for Mischler to confine herself to
yes or no answers even when, given the
prosecutors question, such an answer would be
nonsensical or non-responsive.
The States second argument is that,
when Rantala asked Mischler to refrain from
elaborating when she answered questions, and
to simply answer yes or no to the extent
possible, Rantala was effectively asking
Mischler to unlawfully withhold testimony.
The State contends that if Mischler followed
Rantalas suggestion, she would be violating
her oath as a witness her oath to tell the
whole truth.
In the courts of Alaska, witnesses
are required (before they commence their
testimony) to take an oath or to otherwise
affirm (i.e., declare without swearing an
oath to a deity) that they will testify
truthfully. Alaska Evidence Rule 603.
Alaska law does not prescribe an
exact formula for this oath or affirmation;
rather, Evidence Rule 603 merely states that
the oath or affirmation shall be administered
in a form calculated to awaken the witness
conscience and impress the witness mind with
the duty to [testify truthfully]. However,
Alaska courts traditionally employ the
formula, You do solemnly swear [or affirm]
that, in the cause now before this Court, you
will tell the truth, the whole truth, and
nothing but the truth ... ?10
This formula is several centuries
old.11 It is, of course, designed to remind
witnesses to answer truthfully, and to
encourage witnesses to be open and honest in
their testimony. However, the States
argument in Rantalas case requires us to
examine whether witnesses, when they swear to
tell the whole truth, undertake a legal duty
to answer all questions as fully as possible
or whether, as suggested by the wording of
Evidence Rule 603, witnesses have the more
circumscribed duty to testify truthfully.
The answer to this question has
implications far beyond Rantalas case.
This Court takes judicial notice
that, when attorneys prepare friendly
witnesses for cross-examination at a trial or
evidentiary hearing, the attorneys will often
advise their witnesses to follow the approach
that Rantala suggested to Mischler in this
case. That is, the attorneys will advise
their witnesses to testify truthfully, but to
answer yes or no to the extent possible, and
to refrain from volunteering information that
is not actually required by the cross-
examiners questions.
This Court also takes judicial
notice that the success or impact of cross-
examination often hinges on getting an
adverse witness to answer the lawyers
questions directly and simply, without
qualification or elaboration. Lawyers will
often direct adverse witnesses to confine
themselves to yes or no answers, even when
the witness clearly wants to qualify or
elaborate on their answer. Indeed, trial
judges will often come to the aid of the
cross-examiner in these instances, ordering a
witness to refrain from adding explanations
or qualifications, and directing the witness
to simply answer yes or no unless the
question can not fairly be answered in that
manner.
Under the States suggested
interpretation of the law, all three of these
participants in the legal process the
attorney preparing a witness for cross-
examination, the cross-examiner, and the
trial judge would apparently be subject to
prosecution for witness tampering under the
theory that they were trying to induce the
witness to refrain from divulging the whole
truth.
The fact that the States suggested
interpretation of the law leads to this odd
result a result so inconsistent with current
litigation practices is probably a
sufficient reason, in and of itself, to
reject the States approach to this issue.
There is, moreover, a United States Supreme
Court decision on a related issue (the
definition of perjury) that counsels us to
reject the States suggested interpretation of
the witness tampering statute. The case is
Bronston v. United States, 409 U.S. 352, 93
S.Ct. 595, 34 L.Ed.2d 568 (1973).
The defendant in Bronston was the
sole owner of a company that declared
bankruptcy.12 During a hearing in bankruptcy
court, while Bronston was being questioned
about the extent and location of his companys
assets, he gave an answer that was literally
true, but not responsive to the question.
Moreover, the implications of Bronstons
answer were misleading:
Attorney for a creditor: Do you have
any bank accounts in Swiss banks, Mr.
Bronston?
Bronston: No, sir.
Attorney: Have you ever?
Bronston: The company had an account
there for about six months, in Zurich.
Attorney: Have you any nominees [i.e.,
agents] who have bank accounts in Swiss
banks?
Bronston: No, sir.
Attorney: Have you ever?
Bronston: No, sir.
Bronston, 409 U.S. at 354, 93 S.Ct. at 598.
In fact, although Bronston stated
truthfully that he had no Swiss bank account
at the time of the bankruptcy court hearing,
Bronston had previously maintained a personal
Swiss bank account for nearly five years.
Based on this fact, and based on the above-
quoted answers, Bronston was convicted of
perjury. Id.
The legal problem that prompted the
Supreme Court to review Bronstons case was
this: Bronston was asked whether he had ever
had a Swiss bank account. His answer to this
question was non-responsive: he replied that
his company had had an account in Switzerland
for six months. This answer was literally
true, but it did not answer the attorneys
question, and it could be interpreted as
implying that Bronston had never had a Swiss
bank account.
The government based its perjury
prosecution on the theory that, even though
Bronstons answer to the question was true,
Bronston intended to mislead his creditors
and the bankruptcy court by unresponsively
addressing his answer to his companys bank
accounts rather than his own.13 In
conformity with the governments theory of
prosecution, the jury at Bronstons trial was
instructed that Bronston could properly be
convicted of perjury if his answer,
[although] not literally false, nevertheless
constitute[d] a false statement when
evaluated in the context in which it was
given.14
The Supreme Court concluded that
this was not a proper basis for a perjury
conviction under the federal statute, 18
U.S.C. 1621. The Court first noted that,
although the federal perjury statute
prohibits a witness from willfully making
false statements under oath, it does not
prohibit a witness from willfully making a
true statement that implies any ... matter
that [the witness] does not believe to be
true. Bronston, 409 U.S. at 357-58, 93 S.Ct.
at 599 (emphasis in the original quote).
The Court acknowledged that the
governments suggested reading of the perjury
statute might advance the accuracy of the
fact-finding process,15 but the Court
concluded that other important policies
required a narrower definition of perjury.
The Court first noted that it was
doubtful whether Congress intended the
federal government to employ perjury
prosecutions to cure ... testimonial
mishap[s] that could readily [be corrected]
with a single additional question by counsel
alert as every examiner ought to be to the
incongruity of [a witnesss] unresponsive
answer.16
Next, the Court observed that most
unresponsive answers do not stem from a
witnesss desire to subvert justice, but
rather from the pressures and tensions of
interrogation:
[I]t is not uncommon for the most
earnest witnesses to give answers that are
not entirely responsive. Sometimes the
witness does not understand the question, or
[the witness] may[,] in an excess of caution
or apprehension[,] read too much or too
little into it. [And it] should come as no
surprise that a participant in a bankruptcy
proceeding may have something to conceal and
consciously [try] to do so, or that a debtor
may be embarrassed at his plight and yield
information reluctantly.
Bronston, 409 U.S. at 358, 93 S.Ct. 600. The
Court declared that our legal systems primary
cure for these problems is the adversarial
process itself:
It is the responsibility of the lawyer
to probe[.] ... [I]nterrogation, and cross-
examination in particular, is a probing,
prying, pressing form of inquiry. If a
witness evades, it is the lawyers
responsibility to recognize the evasion and
bring the witness back to the mark, to flush
out the whole truth with the tools of
adversary examination.
Bronston, 409 U.S. at 358-59, 93 S.Ct. at
600.
The Court recognized that, in some
instances, a witness who fails to give a
responsive answer may be consciously
attempting to mislead their examiner and the
court or jury.17 But the Court concluded
that [a] jury should not be permitted to
engage in conjecture [as to] whether an
unresponsive answer, true and complete on its
face, was intended to mislead or divert the
examiner.18 The Court explained:
To hold otherwise would be to inject a
new and confusing element into the adversary
testimonial system we know. Witnesses would
be unsure of the extent of their
responsibility for the misunderstandings [or
the] inadequacies of examiners, and might
well fear having that responsibility tested
by a jury [in a perjury prosecution] under
the vague rubric of intent to mislead or
perjury by implication. ... [T]he measures
taken against the offense [of perjury] must
not be so severe as to discourage witnesses
from appearing or testifying. ... [T]he
obligation of protecting witnesses from
oppression ... by charges, or threats of
charges, of having borne false testimony, is
far paramount to that of giving ... perjury
its deserts.
Bronston, 409 U.S. at 359, 93 S.Ct. at 600
(citations and internal quotation marks
omitted).
For these reasons, the Supreme
Court concluded that the federal perjury
statute should not be construed so broadly as
to allow the government to [invoke it] simply
because a wily witness succeeds in derailing
the questioner [by] speak[ing] the literal
truth.19 Rather, [t]he burden is on the
questioner to pin the witness down to the
specific object of the questioners inquiry.20
For state court decisions that have
adopted the Bronston approach when
interpreting their own perjury statutes, see
In re Rosoto, 519 P.2d 1065, 1071-72; 112
Cal.Rptr. 641, 647-48 (Cal. 1974); Cabe v.
Superior Court, 74 Cal.Rptr.2d 331, 336-38
(Cal. App. 1998); State v. Forbes, 918 S.W.2d
431, 444 (Tenn. Crim. App. 1995); People v.
Neumann, 417 N.E.2d 69, 72; 435 N.Y.S.2d 956,
959-960 (N.Y. 1980); State v. Olson, 594 P.2d
1337, 1340 (Wash. 1979); State v. Stump, 870
P.2d 333, 335 (Wash. App. 1994).
In general, see the Annotation,
Incomplete, Misleading, or Unresponsive But
Literally True Statement as Perjury, 69
A.L.R.3d 993 (1976).
Our purpose in undertaking this
lengthy review of the Bronston decision is
not to adopt a similar interpretation of
Alaskas perjury statute; that issue is not
before us. Rather, we have discussed
Bronston because we believe that the Supreme
Courts reasoning in Bronston is an apt
response to the States argument in this case.
As we explained earlier, the State
argues in this case that a witness violates
their oath if their answers fail to disclose
the whole truth (i.e., all details of the
witnesss knowledge that are relevant to the
questions asked) and, thus, anyone who
advises or encourages a witness to give such
answers is guilty of witness tampering.
If we were to adopt this view of
the law, we would (in the words of Bronston)
inject a new and confusing element into our
legal system. The people who prepare and
advise witnesses (for instance, attorneys,
business associates, family members, and
friends) would operate under the fear of
criminal penalties, or at least the threat of
criminal prosecution, for saying things which
might later be construed as advising or
encouraging the witness not to volunteer some
aspect of their knowledge even if these
people unequivocally advised the witness to
tell the truth.
Such a rule would fundamentally
alter our adversarial process. Obviously,
there are many instances when a witnesss
honest answers will not reveal the whole
truth known to the witness. But that is what
direct examination and cross-examination are
for.
For these reasons, we reject the
States argument that a person commits witness
tampering, as defined in AS 11.56.540(a)(1),
if the person advises the witness to give yes
or no answers whenever reasonably possible,
and not to volunteer information or elaborate
on their answers if this extra information is
not solicited by the examiners questions.
We have now examined and rejected
all of the States arguments as to why the
evidence at Rantalas trial might be
sufficient to support his conviction for
witness tampering. We now address the
additional argument raised by our dissenting
colleague.
In Judge Bolgers dissent, he argues
that Rantala could properly be convicted of
witness tampering because he advised Mischler
that she could just tell them, No, I dont
have anything to say. Judge Bolger suggests
that, in the light most favorable to the
State, Rantalas words could be likened to the
conduct that was deemed sufficient to support
a witness-tampering charge in Boggess v.
State, 783 P.2d 1173 (Alaska App. 1989).
The defendant in Boggess urged his
wife to improperly claim the Fifth Amendment
privilege (i.e., claim the privilege against
self-incrimination even though her answers
would not tend to incriminate her). He also
asked his wife to just break down and cry
rather than answer questions that would
elicit information unfavorable to him. Id.
at 1175. We held that this conduct was a
proper basis for a witness-tampering
conviction. Id. at 1181.
It is true that Rantala said to
Mischler, You just tell them, No, I dont have
anything to say. But those words must be
read in context. What Rantala said to
Mischler is this:
Rantala: You still dont have to testify
in front of the grand jury if they didnt
subpoena you. You just tell them, No, I dont
have anything to say. That way, they wont
indict me [on] this.
In other words, Rantala was urging Mischler
to tell the authorities that, absent a
subpoena, she had nothing to say to them.
It is true, as Judge Bolger notes,
that when we assess the sufficiency of the
evidence to support a criminal charge, we are
obliged to view the evidence in the light
most favorable to sustaining the jurys
verdict.21 But in fulfilling this
obligation, we must confine ourselves to
reasonable interpretations of the evidence.22
And in deciding what Rantala might have meant
by this one particular sentence, we must not
take that one sentence in isolation. Rather,
we must interpret that sentence in light of
Rantalas statements to Mischler as a whole.
Viewing Rantalas words as a whole,
the only reasonable interpretation is that
Rantala was urging Mischler to tell the
authorities that she would not voluntarily
cooperate in the proposed burglary
prosecution that she had nothing to say in
the absence of a subpoena. It is simply
unreasonable to take one sentence from the
middle of Rantalas statement and interpret it
as a request for Mischler to unlawfully
refuse to answer questions under different
circumstances that is, refuse to answer in
the event that she was later subpoenaed and
called as a witness before the grand jury.
Judge Bolger also relies on the
fact that, at one point in Rantalas
conversation with Mischler, Rantala told her,
If you dont want to answer, say no. Judge
Bolger suggests that this statement could be
interpreted as a request for Mischler to
simply refuse to answer unfavorable
questions, even if she chose to testify under
oath to the grand jury. Again, we do not
believe that this suggested interpretation is
reasonable.
All told, Rantala spoke with
Mischler for more than half an hour. He
repeatedly asked Mischler not to cooperate
with the burglary investigation, and not to
testify voluntarily to the grand jury if she
had not been subpoenaed. Alternatively,
Rantala urged Mischler if she chose to
testify to refrain from elaborating or from
volunteering information that was not
solicited by the questions, and to confine
herself to yes or no answers to the extent
possible. As we have already explained, all
of this was lawful; it did not constitute
witness tampering.
Against this backdrop, and in the
midst of their conversation, Rantala uttered
one sentence If you dont want to answer, say
no. that might be interpreted as a request
for Mischler to unlawfully withhold
testimony. But this interpretation would
require us to ignore the context of the
lengthy conversation as a whole.
Our conclusion, that it would be
unreasonable to interpret Rantalas one
isolated sentence in the manner suggested by
Judge Bolger, is bolstered by the fact that,
when the prosecutor argued Rantalas case to
the jury, she never mentioned this particular
sentence. From the prosecutors silence on
this subject, one can infer that the
prosecutor did not view this isolated
sentence as a substantive departure from what
Rantala had been saying to Mischler. Rather,
the prosecutor viewed this sentence as simply
part of Rantalas three main requests to
Mischler: urging Mischler not to testify
voluntarily, asking Mischler to tell the
authorities that she did not want to pursue
the charge, and asking Mischler to give yes
or no answers.
As the prosecutor made clear in her
summation, the States theory of this case was
that these three requests were the conduct
that violated the witness tampering statute.
The prosecutor never argued that Rantalas one
sentence, If you dont want to answer, say no,
constituted a new and different actus reus.
In other words, the prosecutor never argued
the theory now advanced by Judge Bolger:
that this one isolated sentence constituted a
direct request for Mischler to simply refuse
to answer questions under oath if she did not
wish to answer them.
We further note that, even if this
one isolated sentence could reasonably be
interpreted as Judge Bolger suggests, Rantala
would still be entitled to a reversal of his
conviction, although the State would be
entitled to re-try him. Rantalas conviction
would still have to be reversed because the
prosecutor never argued that Rantala should
be convicted based on the one sentence that
Judge Bolger has identified. Rather, the
prosecutor argued that Rantala should be
convicted under the three theories that we
have discussed and rejected in this opinion.
The jurors in Rantalas case
returned a general verdict. They were not
asked to specify the precise conduct that
they relied on when they found Rantala guilty
of witness tampering. Even if the one
sentence identified by Judge Bolger
conceivably might have been a proper basis
for finding Rantala guilty, there would still
be a substantial chance that the jury
convicted Rantala based on one or more of the
three erroneous theories that the prosecutor
argued in her summation. Rantala would
therefore be entitled to a reversal of his
conviction. See State v. Lobe, 167 P.3d 627,
631-32 (Wash. App. 2007). See also Love v.
State, 457 P.2d 622, 634 (Alaska 1969) (the
test for harmless error is whether the
appellate court can fairly say that the error
did not appreciably affect the jurys
verdict).
Conclusion
None of the three theories that the State
relied on to prosecute Rantala for witness
tampering were valid. Accordingly, we conclude
that Rantalas conviction is unlawful.
The judgement of the superior court is
REVERSED.
BOLGER, Judge, dissenting in part.
I agree with the majority opinions resolution
of John Rantalas double jeopardy claim. But I
respectfully dissent from the portion of the opinion
addressing the sufficiency of the evidence supporting
Rantalas conviction for tampering with a witness. I
conclude that the record supports Rantalas conviction
on the charge that he knowingly induce[d] or
attempt[ed] to induce a witness to testify falsely,
offer misleading testimony, or unlawfully withhold
testimony in an official proceeding.1
As noted in the majority opinion, Teri
Mischler told Rantala during their second telephone
conversation that she had not yet received a subpoena.
Rantala then told Mischler:
Then you dont even have to say
anything to them. You could just
say, Oh yeah he came in through the
window, but ... just say yes or no
to them. In fact, you could say
well, I dont even want to pursue
this. And they cant do anything
about it. Then I can go to court
[on the additional misdemeanor
charges] and Ill plead guilty to
[them] and youll be out of it. You
wont have to deal with this
anymore. You understand what I
want, trying to do here?
Rantala stressed that Mischler should refuse to testify
in front of the grand jury because she had not received
a subpoena, and that she should just tell them no, I
dont have anything to say, and that way they wont
indict me. Toward the end of the call, Rantala told
Mischler, if they didnt subpoena you, you dont have to
say anything. And whatever you do, dont elaborate on
anything. If youre going to say anything, just say yes
or no. You know what I mean? If you dont want to
answer, say no.
It is possible that Rantala merely intended
to tell Mischler that she was not required to testify
without a subpeona and that she should not elaborate if
she chose to do so. But in determining the sufficiency
of the evidence, we must view the evidence and the
inferences to be drawn from that evidence in the light
most favorable to upholding the verdict.2 Viewed in
this light, Rantalas statements could also be
reasonably interpreted to mean that, even if Mischler
chose to take the stand, she should refuse to answer or
simply answer no if she did not want to answer a
question.
The prosecutor relied on this interpretation
of the evidence during her closing argument. She
contended that Rantalas suggestion that Mischler should
tell the grand jury, I dont even want to pursue this,
amounted to unlawful withholding of testimony. She
followed this contention with a legitimate conclusion:
If you havent been subpoenaed, you dont have to appear.
But once you appear, whether or not you have a
subpoena, you have to testify truthfully.
We have previously held similar evidence to
be sufficient to support a conviction for witness
tampering. In Boggess v. State, the sole evidence
supporting a conviction was the testimony that the
defendant told his wife that instead of answering
questions before the grand jury, she should plead the
fifth or break down and cry.3 We concluded that this
testimony was sufficient to establish that the
defendant was guilty of attempting to induce his wife
to unlawfully withhold evidence in an official
proceeding.4
The same is true in the present case: The
jury could have reasonably concluded that Rantala was
attempting to persuade Mischler that, if she chose to
appear before the grand jury, she should testify in a
misleading manner, or illegally withhold testimony.
This conclusion would support Rantalas conviction for
witness tampering.
_______________________________
1 AS 11.56.540(a)(1).
2See Griffith v. Taylor, 12 P.3d 1163, 1169 (Alaska 2000);
Gravel v. State, 499 P.2d 1022, 1025 (Alaska 1972);
Roberts v. State, 680 P.2d 503, 507 (Alaska App. 1984).
3Smith v. State, 185 P.3d 767, 768 (Alaska App. 2008); State
v. Jones, 759 P.2d 558, 569 (Alaska App. 1988).
4Rempel, 785 P.2d at 1135.
5Id.
6Id. at 1135-36.
7This statute is quoted in Rempel, 785 P.2d at 1136 n. 1.
8Id., 1999 WL 155946 at *12.
9Id.
10 Quoted in Flores v. State, 443 P.2d 73, 75 (Alaska 1968).
11 For example, the English Book of Oaths dated 1649
contains the following Oath of Evidence upon the
Arraignement of the Prisoner at the Barre: The
evidence that you shall give to this inquest against
the prisoner at the barre, shall be the truth, and the
whole truth, and nothing but the truth as neere as God
shall give you grace. (Quoted in John Henry Wigmore,
Evidence in Trials at Common Law (Chadbourn revn,
1976), 1818, Vol. 6, p. 389.)
12 Bronston, 409 U.S. at 353, 93 S.Ct. at 597.
13 Id., 409 U.S. at 355, 93 S.Ct. at 598.
14 Id.
15 Id., 409 U.S. at 358, 93 S.Ct. at 600.
16 Id.
17 Id., 409 U.S. at 359, 93 S.Ct. at 600.
18 Id.
19 Id., 409 U.S. at 360, 93 S.Ct. at 601.
20 Id.
21 See, e.g., Newsom v. State, 199 P.3d 1181, 1188 (Alaska
App. 2009).
22 See, e.g., Hinson v. State, 199 P.3d 1166, 1170 (Alaska
App. 2008); Dailey v. State, 65 P.3d 891, 898 (Alaska
App. 2003).
1 AS 11.56.540(a)(1).
2 Tipkin v. Anchorage, 65 P.3d 899, 901 (Alaska App. 2003).
3 783 P.2d 1173, 1181 (Alaska App. 1989).
4 Id.
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