Hazelwood v. State, 1232

Citation836 P.2d 943
Decision Date10 July 1992
Docket NumberNo. 1232,1232
PartiesJoseph J. HAZELWOOD, Appellant, v. STATE of Alaska, Appellee.
CourtCourt of Appeals of Alaska

Richard H. Friedman and Jeffrey K. Rubin, Friedman and Rubin, Anchorage, Michael G. Chalos and Thomas Russo, Chalos, English & Brown, New York City and Dick L. Madson, Fairbanks, for appellant.

Samuel D. Adams, Asst. Dist. Atty., Edward E. McNally, Dist. Atty., Anchorage, and Charles E. Cole, Atty. Gen., Juneau, for appellee.

Before BRYNER, C.J., and COATS, J. and HODGES, Superior Court Judge. *


BRYNER, Chief Judge.

Joseph J. Hazelwood was convicted by a jury of negligent discharge of oil, a misdemeanor. See AS 46.03.740 and .790(a)(1). Superior Court Judge Karl S. Johnstone sentenced Hazelwood to ninety days in jail and a $1000 fine, suspending both on condition that Hazelwood complete one year of probation, perform 1000 hours of community work, and pay $50,000 in restitution. Hazelwood appeals, contending that the trial court erred in denying his motion to dismiss on grounds of immunity, in failing to suppress certain evidence of intoxication, and in instructing the jury on the applicable culpable mental state for his offense. Hazelwood also appeals his sentence. Because we find Hazelwood's prosecution to have been barred by immunity, we reverse his conviction. 1


Shortly after midnight on March 24, 1989, the Exxon Valdez, an oil tanker operated by the Exxon Shipping Company, ran aground on Bligh Reef, spilling eleven million gallons of oil into Prince William Sound. Hazelwood, the vessel's captain, was in his cabin; he had turned the helm over to Third Mate Gregory Cousins a short time earlier. Cousins immediately summoned Hazelwood to the bridge. Approximately twenty minutes after the grounding, Hazelwood reported the incident by radio to the Coast Guard Traffic Center in Valdez, stating:

Ah, it's Valdez back. Ah, we've--ah, should be on your radar there--we've fetched up, ah, hard aground north of, ah, Goose Island off Bligh Reef. And, ah, evidently, ah, leaking some oil, and, ah, we're going to be here for awhile.

And, ah, if you want, ah, so you're notified. Over.

Hazelwood's report sparked an immediate investigation by federal and state officials; the investigation yielded evidence that eventually led the state to indict Hazelwood for reckless endangerment, operating a watercraft while intoxicated, and negligent discharge of oil. Hazelwood moved to dismiss the charges, contending, among other things, that he was immune from prosecution because he had immediately reported the Exxon Valdez 's grounding and its discharge of oil to the Coast Guard, in compliance with Section 311 of the Federal Water Pollution Control Act, 33 U.S.C. § 1321. Paragraph (b)(5) of this statute requires "Any person in charge of a vessel" such as the Exxon Valdez to notify the government immediately of "any discharge of oil or a hazardous substance from such vessel"; the paragraph goes on to confer immunity on any person who complies with this requirement:

Notification received pursuant to this paragraph or information obtained by the exploitation of such notification shall not be used against any such person in any criminal case, except a prosecution for perjury or for giving a false statement.

Id. 2

In moving to dismiss on grounds of immunity, Hazelwood argued that he had complied with the federal statute's immediate notice requirement by calling the Coast Guard on the radio to report that the Exxon Valdez was aground and leaking oil. Hazelwood asserted that the statutory grant of immunity was applicable to his case because his report to the Coast Guard had directly triggered the government's investigation of the spill, and because the state had gathered its evidence against him in the course of that investigation. Hazelwood maintained that his prosecution was therefore based on "information obtained by the exploitation of such notification," in violation of 33 U.S.C. § 1321(b)(5). To support his motion to dismiss, Hazelwood submitted an affidavit stating that, when he called the Coast Guard to notify it of the spill, he was aware such notice was required under 33 U.S.C. § 1321(b)(5), and he believed that he could not be prosecuted for the spill if he reported it.

The state did not dispute Hazelwood's claim of compliance with the immediate notice requirement of 33 U.S.C. § 1321(b)(5), nor did the state dispute that its evidence derived from the investigation triggered by Hazelwood's call to the Coast Guard. The state nevertheless asserted two alternative grounds for rejection of Hazelwood's claim of immunity: the independent source rule and the inevitable discovery doctrine. Following an evidentiary hearing, Judge Johnstone adopted the state's immunity argument, finding both the independent source rule and the inevitable discovery doctrine applicable to Hazelwood's case. Accordingly, Judge Johnstone denied Hazelwood's motion to dismiss.


On appeal, Hazelwood argues that Judge Johnstone erred in invoking the independent source rule and the inevitable discovery doctrine to nullify the grant of immunity set out in 33 U.S.C. § 1321(b)(5). Renewing the arguments it raised below, the state contends that Judge Johnstone properly decided the issue. In resolving the parties' arguments, we will separately consider the two theories relied on by the superior court, turning first to the independent source rule and then to the inevitable discovery doctrine.

A. Independent Source Rule

The independent source rule is intrinsically related to the concept of use and derivative use immunity. The fifth amendment to the United States Constitution provides that no person "shall be compelled in any criminal case to be a witness against himself." Despite this constitutional command, it is well-settled that the government may compel a person to furnish potentially incriminatory testimony or information in exchange for immunity from future prosecution. See State v. Gonzalez, 825 P.2d 920, 923 (Alaska App.1992). In Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), the United States Supreme Court held that the demands of the fifth amendment can be satisfied by "use and derivative use immunity"--a form of immunity prohibiting the use of immunized testimony or any information derived therefrom against the witness from whom it was compelled. 3

Since this form of immunity protects only against the use of compelled testimony and information derived therefrom, it does not categorically bar the state from prosecuting an immunized witness for crimes as to which the witness was compelled to testify; the state remains free to prosecute if it possesses evidence from an "independent source," that is, a source entirely untainted by the compelled testimony.

To protect against any infringement of the accused's constitutional privilege against self-incrimination in such cases, however, the law imposes on the state the burden of proving the source of its evidence. Under the independent source rule, "[o]nce immunity is shown, the prosecutor has the burden of demonstrating that its use of the immunized testimony has not tainted any aspect of the case." United States v. De Diego, 511 F.2d 818, 821 (D.C.Cir.1975), quoted in United States v. North, 910 F.2d 843, 865 (D.C.Cir.1990). To meet its burden, "the State must prove that [its] ... evidence was developed or obtained from sources or by means entirely independent of and unrelated to the earlier compelled testimony." State v. Strong, 110 N.J. 583, 542 A.2d 866, 872 (1988).

This burden of proof ... is not limited to a negation of taint; rather, it imposes on the prosecution the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony.

Kastigar v. United States, 406 U.S. at 460, 92 S.Ct. at 1665. Because the government always bears the burden of affirmatively proving a wholly independent source, courts "may not infer findings favorable to the government." United States v. North, 910 F.2d at 867. See also United States v. Rinaldi, 808 F.2d 1579, 1583-84 (D.C.Cir.1987).

We must assess the superior court's reliance on the independent source rule in light of these principles. It is undisputed here that the applicable federal statute, 33 U.S.C. § 1321(b)(5), confers use and derivative use immunity on any person who complies with its mandate to provide the government with immediate notice of any discharge of oil. It is further undisputed that Hazelwood, as captain of the Exxon Valdez, became obligated to provide notice under this statute when his ship ran aground and began to discharge oil into the waters of Prince William Sound. Additionally, as we have previously indicated, the state has acknowledged that Hazelwood's radio communication to the Coast Guard complied with the immediate notice requirement and that virtually all of its evidence against Hazelwood actually derived from Hazelwood's report. Under the circumstances, Hazelwood plainly made a threshold showing that his report to the Coast Guard fell within the federal statute's immunity provision; the state thus bore the burden of affirmatively proving an independent source for its evidence.

In advancing its independent source theory, the state relied primarily on a regulation dealing with the reporting of marine casualties. Under 46 CFR § 4.05-1, "The owner, agent, master or person in charge of a vessel involved in a marine casualty" must "give notice as soon as possible" to the Coast Guard if the casualty creates an environmental hazard (46 CFR § 4.05-1(a)), adversely affects the vessel's seaworthiness (46 CFR § 4.05-1(c)), or results in property damage of more than $25,000 (46 CFR § 4.05-1(f)). 4 This regulation is part of a larger regulatory scheme promulgated "to increase the likelihood of timely assistance to vessels in...

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