Anthony v. State
| Decision Date | 01 April 1974 |
| Docket Number | No. 1774,1774 |
| Citation | 521 P.2d 486 |
| Parties | Dennis Ray ANTHONY, Appellant, v. STATE of Alaska, Appellee. |
| Court | Alaska Supreme Court |
Lyle R. Carlson, Merdes, Schaible, Staley & DeLisio, Fairbanks, for appellant.
Monroe Clayton, Dist. Atty., Fairbanks, John E. Havelock, Atty. Gen., Juneau, for appellee.
Before RABINOWITZ, Chief Justice, and CONNOR, ERWIN, BOOCHEVER and FITZGERALD, Justices.
Appellant Dennis Ray Anthony was convicted by a jury of first degree murder 1 after a trial lasting five days. From multiple assignments of error we find controlling an issue pertaining to the failure to give a cautionary instruction with reference to the testimony of an alleged accomplice. 2
La Wayne Hofhines died in the late evening hours of January 21, 1972, the victim of seven gunshot wounds. Two of the seven bullets entered from the front, one piercing his chest and the other, his right forehead. The remaining five entered from the rear at the base of the skull. All seven shots were fired at close range.
Verna Louise Hofhines 'discovered' her husband's death and reported it to a neighbor who called the police. Evidence developed at trial indicated that on the night of the murder Anthony was in possession of a .22 caliber Colt automatic pistol which the ballistics tests of the Federal Bureau of Investigation demonstrated was the weapon used to fire the empty shell casings found at the scene of the death.
A complaint was filed against the appellant and Verna Louise Hofhines and a joint preliminary hearing was held. Six witnesses were called, and the FBI ballistics reports were introduced. The state's theory at the time of the hearing was that Verna Hofhines killed her husband with a weapon procured for her by Anthony. Based upon the testimony at the hearing, Verna Hofhines was held for trial, and Anthony was discharged, the district judge finding insufficient evidence of guilt to bind him over for trial as an aider or abettor.
Grand jury proceedings against Anthony were commenced March 17, 1972. The only witness before the grand jury was one Cpl. Swackhammer of the Alaska State Troopers. His testimony amounted to a summary of the same evidence which had been adduced at the preliminary hearing; 3 he added only a statement that one Katie Williams told him that she saw a brief meeting between Anthony and Verna Hofhines in a bar on the night before the killing. During the grand jury proceedings, the state persisted in its theory that Anthony aided and abetted Verna Hofhines in the murder of her husband. The grand jury returned murder indictments against both Hofhines and Anthony.
A joint jury trial of the two defendants commenced on June 12, 1972. Soon after the selection of the jury, Verna Hofhines entered a plea of guilty to the murder charge, 4 and she subsequently became the principal witness for the state. She testified that she first met Anthony in November 1971. She said that her relationship with Anthony was casual and that she had seen him at a local nightclub quite often. She related that approximately a week before the killing she asked Anthony for help because she 'wanted to be a widow'. She further testified that she had no money to pay Anthony, and in fact did not pay Anthony any money, but that Anthony nonetheless agreed to find somebody who could 'do the job' for the sum of $5,000, to be paid after settlement of the deceased's insurance.
Verna Hofhines said she saw Anthony again in the French Quarter Bar approximately two days before her husband died, at which time he told her to 'leave everything to him.' She saw Anthony again at approximately 5:30 p. m. at her home on the evening of her husband's death. When her husband came home, Anthony left. Verna Hofhines testified that she then met Officer Clements of the Fairbanks Police Department, with whom she worked as a narcotics agent. She and Officer Clements went to the Flame Lounge where a 'buy' was supposed to occur. When the seller did not arrive, she left the Flame Lounge and arrived home at 8:34 p. m. She discovered upon entry that her husband was not dead as she had thought he would be. She returned to the Flame, where she met Anthony at around midnight, at which time he advised her that she was a widow. She said that she remained at the Flame Lounge until approximately 2:30 a. m., when she returned home to find her husband dead on the living room floor. She testified that upon arriving home she saw some shell casings near her husband's body, and she picked one up and put it into her diaper bag.
The state adduced considerable evidence in corroboration of Hofhines' testimony. Katie Williams confirmed that Hofhines and Anthony had conversed together in the French Quarter Bar. Steve Carlin testified that he loaned a .22 caliber semi-automatic Colt pistol to Anthony at 4:30 or 5:00 p. m. on the day of the murder because Anthony said he wanted to go rabbit hunting. Carlin said that when the weapon was returned at about midnight, there were only one or two shells in it, but that there had been eight at the time of the loan. An FBI ballistics expert testified that he had conducted tests which indicated that Carlin's pistol was the weapon which had fired the six empty shell casings found by the police in the Hofhines' living room. A neighbor was able to identify as gunshots two 'cracks' heard between 8:00 and 9:30 p. m. on the evening of the killing, thus establishing a probable time of death.
We first consider Anthony's contention that the failure to give the mandatory instruction that the testimony of an accomplice ought to be viewed with distrust was an error which we must consider on appeal despite the failure of trial counsel to request the instruction or object to the trial court's omission of it.
Based upon her testimony, Hofhines was an accomplice in the killing of her husband. Accordingly, the failure to give the instruction constitutes error. 5 Criminal Rule 30(b)(2) 6 requires the trial court, whether or not requested to do so, to instruct on all proper occasions that the testimony of an accomplice ought to be viewed with distrust. Ordinarily, this court will not notice errors in jury instructions unless timely request is made for an omitted instruction or timely objection made to an erroneous one. 7 We have previously stated, however, that the express language of Criminal Rule 30(b)(2) makes a request for the cautionary instruction unnecessary. For example, in Beavers v. State, we said:
(D)espite the fact that an instruction as to the weight to be given an accomplice's testimony was not requested, it is not necessary for such a request to have been made. 8
Despite our disinclination to reverse where counsel for the defense has not aided the trial judge in properly applying the law to the facts of his client's case, we reluctantly conclude that the failure of the court to give the cautionary instruction is an error which we must notice on appeal.
We must now consider whether the omission of the cautionary instruction was a prejudicial error requiring reversal or was merely harmless error. 9 We look first to those cases interpreting similar mandatory accomplice instruction rules. Construing a territorial statute similar to Rule 30(b), two pre-statehood cases held that wherever the primary evidence supporting conviction is the testimony of an accomplice, the failure to give the instruction is prejudicial error. 10 Here, where the only evidence placing Anthony at the scene of the crime or reliably demonstrating motive or guilty knowledge was the testimony of the accomplice, one is hard pressed to argue (and the state does not argue) that conviction was not substantially procured by Verna Hofhines' testimony.
Recent federal decisions have held that failure to give a cautionary instruction where an accomplice gives testimony crucial to conviction is prejudicial error. 11 The state in its brief all but concedes that reversible error was committed, stating:
In cases involving accomplice testimony the jury is unaware of all the deals, prejudice and distrust between the criminal parties and it becomes becessary to instruct the jury concerning an accomplice, the necessary corroboration required of such accomplice testimony and the weight to be afforded it by the jury.
It is therefore, the logical purpose of Rule 30(b), and other instructions pertaining to accomplice testimony, to inform the jury of such intrigue, contrivance, distrust and prejudice to afford fundamental fairness to the parties consistent with due process of law.
The state seeks to avoid the impact of the concededly applicable rule by arguing that the cross-examination of Verna Hofhines and defense counsel's closing argument sufficiently apprised the jury of the lack of reliability of accomplice testimony, 12 so that the failure of the court to give the accomplice instruction was harmless. Although the state relies upon the questions asked on cross-examination, Verna Hofhines' answers are material in assessing its impact. For instance, in response to a general question regarding her reasons for changing her plea and testifying for the state, Verna Hofhines was allowed to relate at length a story of her own contrition and feeling that Anthony was 'more animalistic than human', 'need(ed) to be punished as well as myself' and was a substantial contributing cause of her own criminal behavior. These responses made the need for the cautionary instruction manifest. But even supposing cross-examination and closing argument to have been devastating, the purpose of the rule is to raise the issue of accomplice credibility above mere adversary colloquy. The giving of the instruction to view the testimony of an accomplice with distrust clothes the issue with the cloak of the judge's impartial authority and thus mandates application of that criterion in the jury's deliberation. For this reason alone, the failure...
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