Hughes v. State, 1695

Citation513 P.2d 1115
Decision Date10 September 1973
Docket NumberNo. 1695,1695
PartiesEdgar Earl HUGHES, Appellant, v. STATE of Alaska, Appellee.
CourtSupreme Court of Alaska (US)

Herbert D. Soll, Public Defender, Michael L. Rubinstein, Friedman, Wagstaff, Ravin & Rubinstein, Anchorage, for appellant.

John E. Havelock, Atty. Gen., Juneau, Seaborn J. Buckalew, Jr., Dist. Atty., Stephen G. Dunning, Asst. Dist. Atty., Anchorage, for appellee.

Before RABINOWITZ, Chief Justice, and CONNOR, ERWIN and BOOCHEVER, Justices.

BOOCHEVER, Justice.

On October 27, 1971 Edgar Earl Hughes was convicted of the crime of manslaughter 1 for the death of his wife, Mabel. The case was tried by the court after jury trial had been waived. Hughes has appealed from the conviction and sentence of 15 years imprisonment contending that:

1. the court erred in finding him guilty beyond a reasonable doubt;

2. there was no valid and effective waiver of his right to be called as a witness in his own defense; and

3. the sentence was excessive.

I.

The evidence in the case was circumstantial and Hughes contends that there is a reasonable doubt as to his guilt. The standard for determining the sufficiency of the evidence in a case tried by the court is set forth in Beck v. State:

Appellant challenges the sufficiency of the evidence to support a finding that his guilt was proved beyond a reasonable doubt. In determining the issue raised by such challenge, the evidence and the inferences to be drawn therefrom are to be viewed in a light most favorable to the state. The question, then, is whether the finding of guilt is supported by substantial evidence, that is, such relevant evidence which is adequate to support a conclusion by a reasonable mind that there was no reasonable doubt as to appellant's guilt. (Citations omitted.) 2

The following facts were set forth in the court's detailed findings. 3 In May 1971 two rabbit hunters discovered a duffel bag in a wooded area near Mile 81 of the Glenn Highway. After ascertaining that the bag contained the partially decomposed body of a woman, they notified the State Police. The police investigation identified the body as that of Mable Hughes. The autopsy further revealed that she had been subject to severe blows to the head and body, and that the immediate cause of death was asphyxiation resulting from the flow of blood into the windpipe and lungs as a result of the facial beating.

According to the testimony of several witnesses, on the evening of March 26, 1971, the night on which the murder allegedly was perpetrated, Hughes was drinking in the Alley Cat bar at Anchorage in the company of his employer, his employer's wife and Hughes' girlfriend, Marcia. According to the testimony of his employer and Marcia, Hughes left the bar twice during the evening, once to change his clothes and later to see his wife. On the second occasion, he was gone two or three hours.

According to neighbors, living in a trailer next to that of Mabel Hughes, on a Friday evening late in March, first a 1963 Pontiac belonging to a regular male visitor of Mrs. Hughes arrived, then Hughes came to his estranged wife's trailer in a cab. The Pontiac left, and subsequently the neighbors heard a racket or banging going on in the Hughes' trailer which stopped occasionally and then continued for a substantial period of time. The noise sounded as if an object or someone was being banged against the floor and walls. Neither of the neighbors saw Mrs. Hughes again after that ninght. 4 The statement Hughes gave to the State Police was that he last saw his wife on the 24th or 25th of March at her trailer. Hughes said a boyfriend of his wife was present but left shortly after he arrived. Hughes told the State Police that he talked to his wife for a few minutes and then went back downtown to where he was drinking previously.

In May, a medical technologist inspected the Hughes' trailer at the request of the State Police, and found numerous stains, which tests revealed to be from human blood. The technologist could not determine the blood type from the tests. The person occupying the trailer subsequent to Mrs. Hughes testified that he had not caused the blood stains.

All of the facts found by the trial judge are supported by the evidence and the inferences to be drawn therefrom. Additional facts support the guilty verdict when viewed in the light most favorable to the State. 5 Mrs. Hughes was 5 3 tall and weighed about 110 pounds. Hughes is a well-proportioned 6 2 . Early on the morning of March 27, Hughes' employer went to the trailer to see if Hughes was there. No one answered his repeated knocks and he heard a baby crying. Later in the morning Hughes went to the trailer and took the baby to a friend's house. There was testimony that decedent always wore a watch with an unusual chain lock. Subsequent to March 26, 1971, the date of death as found by the judge, Hughes gave such a watch, with a broken band, to Marcia. Decedent's body was found in a duffel bag with a zipper on its side. Around March 26, Hughes brought two duffel bags to the place where he and Marcia were staying. One of the bags had a zipper on the side. Several nights after the March 26 incident Hughes came to the mobile home where Mabel had resided and took a lot of things to the garbage and to his car.

After carefully reviewing all of the evidence, including that summarized above, we hold that the finding of guilt was supported by substantial evidence, that is, such relevant evidence which is adequate to support a conclusion by a reasonable mind that there was no reasonable doubt as to appellant's guilt.

II.

Hughes did not testify at the trial and contends that he did not waive his right to take the stand in his own defense.

The accused did not have the right to testify at common law. 'The competency of accused persons was first declared in Maine, in 1864, and was not finally reached in England until 1898; it now remains unaccomplished in Georgia only.' 6 The delay in granting the right was due to the belief that subjecting the accused to cross-examination would be more injurious than any benefit gained by testifying. It was thought that if permitted to testify, the accused would be seriously prejudiced by failure to take the stand. 7 These theories are no longer accepted.

Alaska Criminal Rule 26 provides that the competency of witnesses shall be governed by Civil Rule 43, which in turn specifies in part:

The following persons are not disqualified to be witnesses.

(a) Parties or other persons who have an interest in the action. 8

In contrast to the right not to testify, there appears to be a paucity of authority with reference to the right to testify. 9 The United States Supreme Court has recently stated that: 'Every criminal defendant is privileged to testify in his own defense, or to refuse to do so.' 10 In United States v. Bentvena, the Second Circuit Court of Appeals referred to the federal statute removing the disability against a defendant testifying, stating:

This statutory 'privilege' to testify in one's own behalf has come to be recognized as having an importance similar to the right to be present at one's trial and to present a defense. . . .

The privilege has been described as one of 'inestimable value.' Yates v. United States, 227 F.2d 844, 846 (9th Cir. 1955). The statute renders the accused competent 'provided only that he testifies at his own request.' Heitler v. United States, 244 F. 140, 141 (7th Cir. 1917) (emphasis supplied). See also Brown v. United States, 56 F.2d 997 (9th Cir. 1932); Wolfson v. United States, 101 F. 430 (5th Cir. 1900). It has been held by at least one state court that denial of the privilege deprives the accused of a fair trial. People v. Rakiec, 260 App.Div. 452, 23 N.Y.S.2d 607 (1940), aff'd 289 N.Y. 306, 45 N.E.2d 812 (1942). See also People v. Rosenzweig, 135 Misc. 324, 239 N.Y.S. 358 (Sp.Sess.1929). 11

In Bentvena one of the accused had requested to testify but was denied that right due to his prior disruptive conduct. The appellante court reversed his conviction stating: 'In view of the importance of the privilege, we cannot say that Salvatore Panico waived his privilege to testify in his own behalf.' 12

In United States v. Poe, 13 the trial court set aside a conviction. The defendant did not testify because he relied on the incorrect advice given by his counsel on the then applicable law pertaining to impeachment. The circuit court upheld the setting aside of the conviction, but stated as to the reason that counsel gave his client in advising him not to take the stand:

If he had not disclosed it, or if he had indicated that his reason was a weakness in Poe's personality or a bad record, neither the District Court nor this court suggests that counsel's decision could have been questioned in any proceeding in any court. Counsel therefore remain free to keep defendants from testifying whenever counsel see fit. Any suggestion to the contrary is chimerical. 14

Despite the dictum of Poe, we believe that it is preferable that a defendant be permitted to testify if he so requests. The right to testify in one's own behalf is often of vital importance in a trial. No defendant requesting to testify should be deprived of exercising that right and conveying his version of the facts to the court or jury, regardless of competent counsel's advice to the contrary. As in the decision to plead guilty or not guilty, 15 the ultimate decision should be that of the defendant, made with advice of counsel.

After Hughes' conviction, at the request of his appellate counsel a hearing was held to receive testimony from Hughes and his trial counsel concerning Hughes' failure to testify. Judge Burke thoughtfully entered his findings at the conclusion of the hearing. Substantial evidence supports the findings that Hughes knew that he had the right to take the witness stand. He was advised not to testify. The decision was a tactical one made in the genuine belief that Hughes might...

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  • People v. Curtis, s. 82SC414
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