Machado v. State, A-2735

CourtCourt of Appeals of Alaska
Citation797 P.2d 677
Docket NumberNo. A-2735,A-2735
PartiesRobert L. MACHADO, Appellant, v. STATE of Alaska, Appellee.
Decision Date24 August 1990

Page 677

797 P.2d 677
Robert L. MACHADO, Appellant,
STATE of Alaska, Appellee.
No. A-2735.
Court of Appeals of Alaska.
Aug. 24, 1990.

Page 679

Glenn E. Cravez, Cravez & Weber, Anchorage, for appellant.

John A. Scukanec, Asst. Atty. Gen., Office of Sp. Prosecutions and Appeals, Anchorage, and Douglas B. Baily, Atty. Gen., Juneau, for appellee.

Before BRYNER, C.J., and COATS and SINGLETON, * JJ.


COATS, Judge.

Robert L. Machado was convicted following a jury trial of attempted murder, arson in the first degree, criminal possession of explosives, and assault in the first degree. These convictions arose from an incident in which Machado and others attempted to kill Andrew Twogood with a car bomb. The jury also convicted Machado of two counts of perjury for false testimony which he gave as a witness at a hearing where the state used his testimony to obtain a search warrant. Superior Court Judge Karl S. Johnstone sentenced Machado to a composite sentence totalling forty-eight years of imprisonment. We affirm the conviction but remand for resentencing.

Richard Erickson, Machado's co-defendant, and Robert Marzak operated a wrecking yard in Fairbanks, leasing it from Twogood, who also owned and operated the ABC Wrecking Yard in Anchorage. Twogood suspected that Erickson and Marzak were using the Fairbanks yard as a front for dealing in stolen automobiles and parts; Twogood eventually reported his suspicions to police and testified before a grand jury. According to the state, Erickson and Marzak then arranged for Machado and another man, Darren Taylor, to kill Twogood. Machado and Taylor drove to Anchorage, and Taylor placed a bomb in Twogood's car while Machado acted as a lookout on May 19, 1986; the bomb seriously injured Twogood and Fred Neubauer, one of Twogood's employees.

The state's investigation of the case proceeded slowly. Eventually, in March 1987, Sergeant Frank Coletta questioned Machado about his knowledge of the car bombing. Machado denied having been in Anchorage at the time of the bombing until Coletta showed him hotel receipts. Machado then admitted having driven to Anchorage with Taylor and conceded that they might have stopped at Twogood's place of business. However, he denied any knowledge of the bombing until his return to Fairbanks. He implied that he could give the police additional information if he were given immunity.

On April 13, 1987, Machado signed an immunity agreement in which the state

Page 680

agreed to forego any prosecution of Machado in connection with the events of May 19, 1986. The agreement was premised on Machado's representation "that he was neither directly or indirectly involved in the knowing construction, physical placement, ignition or detonation of the incendiary or explosive device" used in the car bombing. Among other things, Machado was required "to speak truthfully, completely, and in good faith without reservation whatsoever during any testimony he offers...." Any false testimony would be considered a material breach and void the agreement and could be used against him. The agreement additionally required Machado to work with Coletta and to participate in wired conversations.

The agreement included the following incorporation clause: "This document represents the entire agreement between Robert Machado and the State of Alaska. Machado, by signing this document, acknowledges that no oral agreements exist outside this written document." The page of the agreement signed by Machado stated that he "had a sufficient period of time to discuss this agreement and its legal and practical consequences with my attorney Ray Funk.... I understand the agreement and have no questions regarding it. At this time I am entering into this agreement voluntarily, knowingly, and intelligently, and with a full understanding of all its consequences and of my legal rights which have been explained to me in detail by my attorney, Mr. Funk."

After signing the immunity agreement on the record, Machado testified at a search warrant hearing to obtain Glass 1 warrants for electronically monitored conversations. However, Machado's testimony was apparently not completely truthful. The state alleged that the following statements were untrue in a later perjury indictment:

(1) Machado testified that he did not see any plastic explosives until the day of the bombing; in fact, Machado saw the explosives the second day he and Taylor arrived in Anchorage, may have seen them in Fairbanks, and may have provided Taylor with detonators one week before their departure from Fairbanks;

(2) Machado testified that he did not see how the bomb was built; in fact, Machado observed Taylor construct the bomb;

(3) Machado testified that he exited the truck, walked into the ABC office, and, when he returned to the truck, the bomb was gone; in fact, Machado had remained in the truck, served as Taylor's lookout, and watched Taylor place the bomb in Twogood's car;

(4) Machado testified that he did not recall seeing Twogood's car the day of the explosion; in fact, he watched Taylor place the bomb in it.

Two days after the search warrant hearing, Machado indicated to Coletta that some of his testimony had been incomplete and not entirely truthful. However, he continued to participate in the investigation and engaged in a series of wired conversations with Taylor, Marzak, and others. When confronted with the contents of these conversations, Taylor and Marzak pleaded guilty and made extensive confessions. These confessions revealed additional perjury committed by Machado in the search warrant hearing. It was only then, according to the state, that the full extent of Machado's participation in the bombing became evident and the state concluded that Machado was "directly or indirectly involved in the knowing construction, physical placement, ignition or detonation" of the bomb, accordingly prompting it to revoke the immunity agreement.

The state then prosecuted Machado. Machado claimed that the prosecution was improper since it was in violation of the immunity agreement. Judge Johnstone denied Machado's motion to dismiss, finding that Machado had breached the immunity agreement. The prosecution proceeded, and Machado was convicted. He now appeals that conviction to this court.

Page 681


Machado first raises several issues concerning the immunity agreement which he had with the state. Machado argues that Judge Johnstone erred in failing to dismiss the charges against him based upon the immunity agreement.

Investigator Coletta first talked with Machado on March 23, 1987. Between March 25 and March 31, Coletta and Machado began discussing the possibility of an immunity agreement. Coletta told Machado that immunity might be possible if Machado was truthful, was not directly involved in the bombing, and would be willing to engage in monitored conversations. At one point in their discussions, Coletta told Machado that an immunity agreement would be impossible if Machado turned out to be the "main man" in the bombing.

Coletta also told Machado that he had no authority to grant immunity or to make any promises and that any deal would have to come from the district attorney's office. Machado told Coletta that he wanted an agreement in writing. Coletta testified that, prior to the agreement, Machado indicated "that he might have some information that might be of value to the police" but was vague about specifics; the first indication of what the details might be came from Machado's attorney in the form of an outline of his expected testimony prior to the search warrant hearing.

Fairbanks Assistant Public Defender Raymond Funk was asked to represent Machado and advise him about the immunity agreement. Funk met with Machado on April 11. While Funk did not know if Machado had any prior understanding of what an immunity agreement might contain, he was under the impression that Machado and Coletta had been unable to work out an agreement themselves. Machado told Funk that he wanted to secure an agreement in writing. According to Funk, Machado "wasn't sure on how much he could bargain for. And he was still ... wanting to know how much he could get for doing what they wanted him to do." Apparently Machado discussed with Funk the possibility of obtaining a sentence reduction for an unrelated offense; Machado also indicated to Funk his hopes of receiving money or a ticket to California in exchange for his cooperation and testimony. However, Machado and Funk apparently agreed that, given the seriousness of the offense for which Machado could be potentially charged--attempted murder--full immunity for crimes related to the car bombing was the best deal they could expect.

Machado, Funk, Assistant District Attorney Stephen Branchflower, Coletta, and several other law enforcement officials, met on the morning of April 13. At that time, Machado and Funk first saw the proposed agreement which had been drafted by Blanchflower. Funk insisted that the phrase which initially had provided that the agreement was premised on Machado's representation that he had not been involved in the "construction, transportation, placement, ignition, or detonation" of the bomb be altered to read "construction, physical placement, ignition, or detonation" (emphasis added). "Physical placement" was defined as "personally and physically placing the device in the automobile." Funk realized that the term "transportation" had to be omitted because Machado had driven the truck part-way to Anchorage and to Twogood's wrecking yard. At this point, all discussions were between Branchflower and Funk; Machado did not negotiate directly with Branchflower.

Funk testified that his understanding of Machado's involvement in the car bombing was that

[Machado] had gone down to Anchorage with Darren Taylor, that at some point Darren Taylor had a paper bag, that they stopped at a Seven-Eleven type place and got ... foil and batteries,...

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